United States Court of Appeals,

Fifth Circuit.

No. 92–1316.

(Summary Calendar).

Gemeral Earnest BERRY, Jr., Plaintiff–Appellant,

v.

CIGNA/RSI–CIGNA, Defendant–Appellee.

Oct. 29, 1992.

Appeals from the United States District Court for the Northern District of Texas.

Before GARWOOD, JONES, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Plaint iff, Gemeral Earnest Berry, Jr., brought an employment discrimination suit against his

employer, CIGNA/RSI–CIGNA ("Cigna"). Berry appeals the dist

rict court's sua sponte order

dismissing his suit for failure to prosecute. Finding that the district court abused it s discretion by

dismissing Berry's suit, we reverse and remand.

I

Gemeral Earnest Berry, Jr., an African–American employee of Cigna, filed an employment

discrimination complaint with the Equal Employment Opportunity Commission ("EEOC"), alleging

that after being promoted, Cigna paid him less than white employees holding identical positions, in

violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Civil Rights

Act of 1866, 42 U.S.C. § 1981. On June 26, 1991, Berry received a right

-t o-sue letter from the

EEOC.

The ensuing litigation proceeded as follows:

1. On September 23, 1991, Berry filed a Title VII and § 1981 suit against Cigna in federal

district court.

2. On October 1, 1991, Berry filed his first amended complaint.

3. On October 28, 1991, Cigna filed a motion to dismiss Berry's § 1981 claim. On November

8, 1991, Berry filed an opposition to Cigna's motion to dismiss. On November 26,

1991, the district court granted Cigna's motion to dismiss.1 Cigna was in default because it had not yet filed an answer to Berry's Title VII complaint.

2 Local Rule 3.1(h) provides:

(h). Failure to Obtain Default Within 90 Days. Where a defendant has been in

default for a period of 90 days, but plaintiff has failed to move for default

judgment, the action will be summarily dismissed as to that defendant,

without prejudice and without notice.

3 Berry argues that the district court should have applied Fed.R.Civ.P. 55(a) rather than Local

Rule 3.1(h). Rule 55(a) only authorizes the court to enter a default judgment against a defendant

who fails to file pleadings; it does not state whether a court may dismiss a case where the plaintiff

fails to file a motion for default judgment. Because Fed.R.Civ.P. 41(b) governs involuntary

dismissals for failure to prosecute, we consult decisions applying Rule 41(b). 4. On December 6, 1991, Berry filed a motion for reconsideration concurrently with a motion

to amend his original complaint. Cigna replied to Berry's motion for reconsideration

on January 3, 1992.

5. On January 6, 1992, Berry moved for leave to file a second amended complaint. On that

same day, the district court denied Berry's motion for reconsideration. On January

29, 1992, the district court denied Berry's motion to file a second amended complaint.

On March 17, 1992, the district court dismissed Berry's complaint (consisting now of the Title

VII claim only), without prejudice and without notice, because Berry had failed to move for default

judgment against Cigna. 1 The district court's order for dismissal cited Rule 3.1(h), Local Rules for

t he United States District Court for the Northern District of Texas, ("Local Rule 3.1(h)") which

directs the district court to dismiss an action summarily if a plaint iff fails to move for default judgment

after a defendant is in default for ninety days. 2 On March 20, 1992, Berry filed a motion to reinstate

his suit. The district court denied the motion, stating that the dismissal was proper under Local Rule

3.1(h), and that Berry had failed to show why the rule should not apply to his case. Berry appeals

the district court's dismissal of his Title VII suit against Cigna.

II

A dismissal for failure to file a motion for default judgment is equivalent to a dismissal for

failure to prosecute. S ee Williams v. Brown & Root, Inc., 828 F.2d 325, 326–27 (5th Cir.1987)

(dismissal of plaint iff's suit for failure to file a motion for default judgment, as required by local rule,

treated as dismissal for failure to prosecute). Furthermore, we treat the dismissal of Berry's suit for

failure to prosecute as an involuntary dismissal under Fed.R.Civ.P. 41(b). 3 S ee Boudw in v. Graystone4 Fed.R.Civ.P. 41(b) provides:

(b) Involuntary Dismissal: Effect Thereof.... For failure of the plaintiff to

prosecute or to comply with these rules or any order of court, a defendant

may move for dismissal of an action or any claim against the defendant. Ins. Co., 756 F.2d 399, 400 n. 1 (5t h Cir.1985) (where district court dismissed plaintiff's suit for

failure to prosecute, this Court on appeal treated t he dismissal as an involuntary dismissal under

Fed.R.Civ.P. 41(b)).

Rule 41(b) allows the district court to dismiss an action upon the motion of a defendant, or

upon its own motion, for failure to prosecute. 4 M orris v. Ocean Systems, 730 F.2d 248, 251 (5th

Cir.1984); R ogers v. Kroger Co., 669 F.2d 317, 319–20 (5th Cir.1982). This authority is based on

the "courts' power to manage and administer their own affairs to ensure the orderly and expeditious

disposition of cases." L ink v. Wa bash R.R. Co., 370 U.S. 626, 630–31, 82 S.Ct. 1386, 1389, 8

L.Ed.2d 734 (1962).

Berry argues that (1) he is time-barred from reasserting a Title VII claim against CIGNA, and

(2) because he is time-barred from bringing another Title VII suit, we should treat t he dismissal

without prejudice as if it were a dismissal with prej udice. A civil action under Title VII must be

brought within ninety days of receip t of a ri ght-to-sue l etter from the EEOC. 42 U.S.C. §

2000e–5(f); P rice v. Digital Equip. Corp., 846 F.2d 1026, 1027 (5th Cir.1988). If a Title VII

complaint is t imely filed pursuant t o an EEOC right-to-sue letter and is later dismissed, the timely

filing of the complaint does not toll the ninety-day limitations period. S ee Digital Equip. Corp., 846

F.2d at 1027 (where plaint iff's Title VII suit had been dismissed for failure to prosecute, ninety-day

limitations period had not been tolled by timely filing of Title VII suit, and second Title VII lawsuit

was time-barred). Consequently, we conclude that Berry is time-barred from reasserting a Title VII

claim against Cigna.

We also agree that we should treat the dismissal of Berry's case as a dismissal with prejudice.

"Where further litigation of [a] cla im will be t ime-barred, a dismissal without prejudice is no less

severe a sanction than a dismissal with prejudice, and the same standard of review is used."

McGowan v. Faulkner Concrete Pipe Co., 659 F.2d 554, 556 (5th Cir.1981); s ee also Williams, 8285 A clear record of delay is found where there have been " "significant periods of total

inactivity.' " Morris, 730 F.2d at 252.

6 Generally, where a plaintiff has failed only to comply with a few court orders or rules, we

have held that the district court abused its discretion in dismissing the suit with prejudice. See,

e.g., Morris v. Ocean Systems, 730 F.2d 248, 252 (5th Cir.1984) (no clear record of delay or

contumacious conduct where counsel failed twice to comply with court-imposed deadlines F.2d at 329; Boazman v. Economics Lab., Inc., 537 F.2d 210, 213 (5th Cir.1976).

We review a dismissal with prejudice for failure to prosecute for abuse of discretion. P rice

v. McGlathery, 792 F.2d 472, 474 (5th Cir.1986); C allip v. Harris County Child Welfare Dept., 757

F.2d 1513, 1519 (5th Cir.1985). A dismissal with prejudice " "is an extreme sanction that deprives

the litigant of the opportuni ty to pursue his claim.' " Callip, 757 F.2d at 1519 (quoting McGow an,

659 F.2d at 556); s ee also McGlathery, 792 F.2d at 474. Consequently, this Court has limited the

district court's discretion in dismissing cases with prejudice. M cGlathery, 792 F.2d at 474; C allip,

757 F.2d at 1519.

We will affirm dismissals with prejudice for failure to prosecute only when (1) there is a clear

record of delay 5 or contumacious conduct by the pla int iff, and (2) the district court has expressly

determined that lesser sanctions would not prompt diligent prosecution, or the record shows that the

district co urt employed lesser sanctions that proved to be futile. C allip, 757 F.2d at 1519–21;

McGlathery, 792 F.2d at 474; Boudw in, 756 F.2d at 401; Morris, 730 F.2d at 252. Additionally,

in most cases where this Court has affirmed dismissals with prejudice, we found at least one of three

aggravating factors: "(1) delay caused by [t he] plaintiff himself and not his attorney; (2) actual

prejudice to the defendant; or (3) delay caused by intentional conduct." M cGlathery, 792 F.2d at

474; see also Callip, 757 F.2d at 1529.

Applying the standards pertaining to Fed.R.Civ.P. 41(b) to this case, we find that the district

court abused its discretion by involuntarily dismissing Berry's suit for failure to prosecute. The order

of dismissal for failure to prosecute does not contain express findings upon which the dismissal was

based. It merely states that the case was being dismissed because Berry had failed to move for default

judgment against Cigna. Furthermore, nothing in t he reco rd indicates a clear record of delay or

contumacious conduct. 6 In fact, the record contains no evidence showing "significant periods of totalrequiring counsel to notify court of plaintiff's rejection of settlement offers), Burden v. Yates, 644

F.2d 503, 504–05 (5th Cir.1981) (no clear record of delay or contumacious conduct where

counsel failed to file three documents on time); McGow an v. Faulkner Concrete Pipe Co., 659

F.2d 554, 556–58 (5th Cir.1981) (no clear record of delay or contumacious conduct where

counsel failed to comply with scheduling and other pretrial orders); Silas v. Sears, Roebuck &

Co., 586 F.2d 382, 384–85 (5th Cir.1978) (no clear record of delay or contumacious conduct

where counsel failed to answer interrogatories, failed to confer with defendant on pretrial order,

and failed to appear at a pretrial conference).

On the other hand, where a plaintiff has failed to comply with several court orders

or court rules, we have held that the district court did not abuse its discretion in

involuntarily dismissing the plaintiff's suit with prejudice. See, e.g., Price v. McGlathery,

792 F.2d 472, 474–75 (5th Cir.1986) (clear record of delay and contumacious conduct

where counsel failed to file pretrial order, failed to appear at a pretrial conference, and

failed for almost a year to certify that he would comply with the district court's order);

Callip v. Harris County Child Welfare Dept., 757 F.2d 1513, 1515–17, 1521 (5th

Cir.1985) (clear record of delay and contumacious conduct where counsel failed to

comply with nine deadlines imposed by the rules of procedure or by orders of the court).

7 In Williams, the district court dismissed the plaintiff's case pursuant to a local rule—similar to

the local rule at issue here—which required the plaintiff to file a motion for default judgment

within 60 days after the defendant defaulted. See Williams, 828 F.2d at 326–27. On appeal, this

Court stated that the local rule apparently allowed the district court to dismiss a case where the

plaintiff merely failed to move for a default judgment. See Id. at 329. The Court stated that,

"without other evidence of delay and without the consideration of lesser sanctions, such an

application of [the local rule] would not meet the involuntary dismissal standards [of Fed.R.Civ.P.

41(b) ]." Id. inactivity." S ee Morris, 730 F.2d at 252. In addition, there is no evidence that the district court

determined that lesser sanctions would be appropriate. Neither does the record contain any of the

aggravating factors discussed in McGlathery. The district court apparently dismissed Berry's lawsuit

merely because of Berry's failure to file a motion for default judgment. Because this does not amount

to a clear record of delay or contumacious conduct, 7 and because there has been no showing of the

futility of lesser sanctions, we hol d t hat t he district court abused its discretion in involuntarily

dismissing Berry's case for failure to prosecute.

III

For the foregoing reasons, we REVERSE the judgment of the district court and REMAND

for further proceedings.