United States Court of Appeals

for the Fifth Circuit

No. 20-10349

Summary Calendar

Demetrick Pennie, A Dallas Police Sergeant, and 

President of the Dallas Fallen Officer Foundation, 

Plaintiff—Appellant,

versus

Ariana Giorgi, Writer for Dallas Morning News; 

Mayes Media Group; Brian Mayes, President of Mayes 

Media; Dallas Police Association; Michael Mata, 

President of the Dallas Police Association; Thomas 

Popken, Member of the Dallas Police Association; 

Dallas Police Association's Assist the Officer 

Foundation, Incorporated; Frederick Frazier, 

President of Assist the Officer Foundation; John Burk, 

Affiliate of Assist the Officer Foundation; City of 

Dallas; Mike Rawlings, Mayor of the City of Dallas; 

Naomi Martin, Former Writer for Dallas Morning 

News and Current Writer for the Boston Globe; Dallas 

Morning News, 

Defendants—Appellees.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:19-CV-1945

United States Court of Appeals

Fifth Circuit

FILED

January 6, 2021

Lyle W. Cayce

Clerk

Case: 20-10349 Document: 00515696880 Page: 1 Date Filed: 01/06/2021
No. 20-10349

2

Before Higginbotham, Jones, and Costa, Circuit Judges.

Edith H. Jones, Circuit Judge:*

The Plaintiff Demetrick Pennie asks this court to reverse the district 

court’s dismissal of his defamation claims. After careful consideration of the 

applicable law and close review of the relevant portions of the record, we 

affirm.

I. Background

A few days before the statute of limitations expired on his defamation 

claims, Pennie filed suit in district court.1 Although he timely served the 

Defendants with notice, Pennie did not effectuate service until after 

expiration of the statute of limitation on his defamation claims.

2 In his 

November 2019 motion for extension of time to serve the Defendants, Pennie 

explained that he had “been deciding whether to proceed with this case, and 

has ultimately decided to move forward with it.”

In November 2019, the District Court ordered the parties to comply 

with the local rule requiring local counsel within twenty days. N.D. TEX.

LOC. R. 83.10(a). On the twentieth day, Pennie filed a motion for leave to 

proceed without local counsel. Pennie claimed his attorney, Mr. Klayman, 

had “filed and litigated numerous cases in this judicial district” without local 

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

1 The defamation claims stem from an article published on August 17, 2018. Pennie 

filed suit on August 14, 2019. The relevant statute of limitations is one year. TEX. CIV.

PRAC. & REM. CODE § 16.002(a); see Walker v. Beaumont Indep. Sch. Dist., 938 F.3d 724, 

741–42 (5th Cir. 2019) (“Under Texas law, defamation claims generally are subject to a 

one-year statute of limitations.”).

2 Pennie received an extension for time to serve the Defendants until December 12, 

2019.

Case: 20-10349 Document: 00515696880 Page: 2 Date Filed: 01/06/2021
No. 20-10349

3

counsel and was “familiar with the local rules.” The district court denied 

Pennie’s motion.

In December 2019, Pennie filed a motion requesting a ninety-day stay 

while he searched for local counsel. He claimed the district court was

“forcing [him] to proceed pro se” and that he was “in the middle of a 

congressional campaign which is occupying much of his available time.” 

Pennie indicated that he personally prepared the relevant filings because his 

attorney, Mr. Klayman, “is no longer allowed to represent him without local 

counsel.” The district court denied his motion in January 2020, reasoning 

that Pennie had already had five months since filing his action to comply with 

the local rule. Further, the district court disagreed with Pennie’s 

characterization that he was being forced to proceed pro se by observing that 

“his counsel has not withdrawn and assisted Pennie in filing his motion to 

stay.” Nevertheless, the district court did not issue a Fed. R. Civ. Pro. 41(b)

show cause order concerning failure to prosecute until March 2020, almost 

ninety days after Pennie filed his motion for a stay.

In the meantime, the Defendants had filed numerous dispositive 

motions that were never answered. The first dispositive motion was filed in 

November 2019. By the time the district court issued its show cause order,

eleven unanswered motions to dismiss were pending. In its show cause 

order, the district court told Pennie that by March 17, he must show cause 

as to why his action should not be dismissed for failure to prosecute and file 

his response to each pending motion or suffer dismissal of his action 

“without further notice.” Upon receiving no response, the district court 

dismissed the case without prejudice on March 19, 2020.

That same day, after the case was dismissed, Pennie filed a notice of 

appearance of local counsel and a motion to set aside the judgment of 

dismissal. Pennie claimed he missed the due date because it was 

Case: 20-10349 Document: 00515696880 Page: 3 Date Filed: 01/06/2021
No. 20-10349

4

“inadvertently mismarked by counsel’s staff,” and he noted that dismissal 

would “severely prejudice” him because the statute of limitations for his 

defamation claims had expired and he could not refile the case. The district 

court denied Pennie’s motion to set aside the judgment because “[t]he only 

thing he has done is to finally hire local counsel 114 days after this Court’s 

deadline to do so passed.”

II. Discussion

Typically, dismissal under Rule 41(b) for failure to prosecute is 

reviewed for abuse of discretion. But a district court’s discretion is narrower 

if the statute of limitations would bar refiling because dismissal would 

effectively be with prejudice. In this situation, dismissal is typically 

“appropriate only where there is a showing of (a) a clear record of delay or 

contumacious conduct by the plaintiff, and (b) where lesser sanctions would 

not serve the best interests of justice.” Griggs v. S.G.E. Mgmt., L.L.C., 

905 F.3d 835, 844 (5th Cir. 2018). In addition, though not required, this 

court sometimes looks to “aggravating factors” that include “the extent to 

which the plaintiff, as distinguished from his counsel, was personally 

responsible for the delay, the degree of actual prejudice to the defendant, and 

whether the delay was the result of intentional conduct.” Sealed Appellant v. 

Sealed Appellee, 452 F.3d 415, 418 (5th Cir. 2006) (quotation omitted).

We begin by observing the existence of aggravating factorsin this case. 

First, Pennie was, at least in part, personally responsible for the delays. Even 

if we accept Pennie’s unsworn claim that an unnamed person on “counsel’s 

staff” mismarked the date for responding to the district court’s show cause 

order, that was hardly the only delay in this case. The show cause order was 

issued precisely because Pennie had not responded to any dispositive 

motions or obtained local counsel for many months. These delays cannot be 

attributed entirely to Pennie’s attorney. For instance, Pennie cited time 

Case: 20-10349 Document: 00515696880 Page: 4 Date Filed: 01/06/2021
No. 20-10349

5

constraints due to his congressional campaign when seeking a ninety-day stay 

from the district court. He also characterized himself (albeit inaccurately) as 

proceeding pro se. The record indicates that Pennie was actively involved in 

managing his case and is accordingly responsible for failure to comply with 

the district court’s local rules and case-specific orders.

Second, some level of prejudice accrued to the Defendants. Pennie 

waited until right before the statute of limitations expired to file his case, 

delayed serving the Defendants until months after limitations had expired, 

and then delayed the case by not obtaining local counsel and ignoring 

dispositive motions. Even though Pennie served process in accord with the 

district court’s extended deadline, the fact that Pennie delayed service means 

that “[where] the statute has run, a potential defendant that has not been 

served is entitled to expect that it will no longer have to defend the claim.” 

Sealed Appellant, 452 F.3d at 418, 420. But this fact applies with less force 

than some of the Defendants suggest. Much of the delay in this case occurred 

after the Defendants had been properly served, and they had expectations of 

being required to defend. Cf. Sealed Appellant, 452 F.3d at 417 (failing to 

serve process “during the two years after it was ordered by the court”); 

Veazey v. Young's Yacht Sale and Service, Inc., 644 F.2d 475, 478 (5th Cir. 

1981) (“We view a delay between filing and service as being more likely to 

result in prejudice than a delay occurring after service . . . .”).

In addition to these aggravating factors, there was a clear record of 

delay or contumacious conduct by the plaintiff. Griggs, 905 F.3d at

844. First, a “district court has discretion to adopt local rules,” and these 

rules have “the force of law.” Hollingsworth v. Perry, 558 U.S. 183, 191, 

130 S. Ct. 705, 710 (2010). Pennie and Klayman had no right to assume the 

requirement to secure local counsel would not apply to them. They claim to 

have “anticipated no issues with the representation” and found the district 

court’s “sudden” application of the rule “inexplicable.” But Rule 83.10(a) 

Case: 20-10349 Document: 00515696880 Page: 5 Date Filed: 01/06/2021
No. 20-10349

6

requires, on its face, local counsel “[u]nless exempted by LR 83.11.” N.D.

TEX. LOC. R. 83.10(a). Pennie and Klayman were responsible for obtaining 

an exemption from the outset; instead, the district court had to affirmatively 

impose the rule before they sought permission.

Moreover, Klayman was almost certainly aware of the local counsel 

requirement from the start. In one case before the same district court, 

Klayman responded to a show cause order requiring local counsel and was 

warned that “[f]ailure to comply may result in sanctions.”3

 Order to Show 

Cause, Cox v. Benbella Books Inc., No. 3:18-cv-03367-B, ECF No. 7 (N.D. 

Tex. Jan. 11, 2019). In another case, he appeared before the district court 

accompanied by local counsel. See Notice of Designation of Lead and Local 

Counsel, Stephens v. Halliburton Company, et al., No. 3:02-cv-01442-L, ECF 

76 at *1 (N.D. Tex. Jul. 24, 2003) (designating “Larry E. Klayman as lead 

counsel and Todd W. Hutton as local attorney in charge, in accordance with 

Local Rules 77.1(c) and 83.10(a)”).

In any event, the district court was well within its discretion to enforce

the local counsel rule. Because it did so in a brief electronic order, we do not 

know what reasons the district court considered when issuing the order. But 

Pennie does not offer any evidence to show the district court abused its 

discretion.4 Defendants, on the other hand, point to Klayman’s checkered 

history to demonstrate that requiring local counsel in this case made sense

3 The court in that case ultimately granted Klayman’s motion for leave to proceed 

without local counsel. Electronic Order, Cox v. Benbella Books Inc., No. 3:18-cv-03367-B,

ECF No. 9 (N.D. Tex. Jan. 17, 2019). We cite this case only to support our conclusion that 

Klayman was aware of the local counsel rule and possibility of sanctions.

4 Pennie simply describes the district court’s decisions as arbitrary and proceeds to 

make a bizarre series of accusations against the district court judge alleging racial or political 

animus. We see nothing in the record to support such accusations.

Case: 20-10349 Document: 00515696880 Page: 6 Date Filed: 01/06/2021
No. 20-10349

7

for reasons beyond simple compliance with the rules. See In re 

Bundy, 840 F.3d 1034, 1035–36 (9th Cir. 2016).

5

Second, Pennie and Klayman completely disregarded the district 

court’s rules and orders. Pursuant to Rule 83.10(a), they should have sought 

permission to proceed without local counsel at the start of the case in August 

2019. Nevertheless, the district court ordered them to comply with the local 

rules in November 2019. Then the district court reiterated its order by 

denying Pennie’s motion for a stay in January 2020. The district court

provided a final warning and compliance opportunity in its show cause order

in March 2020 before it ultimately dismissed the case.

Pennie claims he was searching for local counsel over these many 

months but offers no evidence to support this claim. For example, Pennie 

does not present the court with specific evidence that he did, in fact, solicit a 

single local law firm during this time period where a representation 

agreement was not ultimately reached.

And as noted above, Pennie never complied with the district court’s 

order to respond to the Defendants’ dispositive motions by March 17, 2020. 

Pennie argues that his unresponsiveness “highlights the prejudice” against 

him because “he suddenly had no counsel to assist him in responding to 

5 Klayman represented Bundy in this case. The Ninth Circuit affirmed denial of

Klayman’s pro hac vice application and summarized his questionable history as follows: 

“Under our decisions, the district court had more than ample cause to turn down 

Klayman's [pro hac vice] application: he is involved in an ethics proceeding before the 

District of Columbia Bar, and he was not candid with the court about the status of those 

proceedings; he disclosed that he was twice barred in perpetuity from appearing pro hac vice

before judges in the Central District of California and the Southern District of New York, 

but he failed to list numerous cases—all available on Westlaw or LEXIS—in which he has 

been reprimanded, denied pro hac vice status, or otherwise sanctioned for violating various 

local rules; and he has a record of going after judges personally . . . .” In re Bundy, 840 F.3d

at 1035–36.

Case: 20-10349 Document: 00515696880 Page: 7 Date Filed: 01/06/2021
No. 20-10349

8

motions to dismiss.”6 But, as the district court noted, Klayman never 

withdrew from the case nor was he otherwise disqualified from the matter. 

Tellingly, Pennie did not even try to respond to a single motion to evidence 

his good faith. In short, he is now a day late and a dollar short.

Pennie’s efforts to minimize the length and severity of the delay are

unavailing. See Sealed Appellant, 452 F.3d at 419 n.7 (“Other courts also have

affirmed dismissals with prejudice for failure to serve process where

limitations has run, even where delay was as short as four months”); Figueroa 

Ruiz v. Alegria, 896 F.2d 645, 649 (1st Cir. 1990) (affirming dismissal where 

the time involved was three months, which the court characterized as 

“relatively short”). Further, the cases he cites are inapposite.

In Gray, this court reversed a district court dismissal of a case where

there had been no “substantial proceedings of record in the past six months”

and the “plaintiffs concede[d] negligence.” Gray v. Fid. Acceptance Corp., 

634 F.2d 226, 227 (5th Cir. 1981). But in that case the contumacious conduct 

was less severe than the conduct here, and the court specifically recognized 

that the plaintiffs did not disobey court orders. Id. In this case, Pennie 

disregarded explicit direction from the district court on multiple occasions 

before his case was ultimately dismissed. See Figueroa Ruiz, 896 F.2d at 649

(“Yet plaintiffs here were guilty not only of simple delay but of disobedience 

of a court order as well. In such a case, the amount of time elapsed obviously 

becomes less pivotal.”).

Boazman is also distinguishable. Boazman v. Econ. Lab., Inc., 537 F.2d 

210 (5th Cir. 1976). In that case, although the plaintiff was “initially quite 

slow in prosecuting his case” he subsequently “began to prosecute his case 

6 It is ironic that Pennie makes this argument while simultaneously blaming counsel 

for missing the filing deadline.

Case: 20-10349 Document: 00515696880 Page: 8 Date Filed: 01/06/2021
No. 20-10349

9

in earnest.” Boazman, 537 F.2d at 211–12. Those are not the facts here. 

Additionally, in Boazman the district court initially dismissed the case with 

prejudice but later amended the dismissal to be without prejudice because 

dismissal with prejudice “was too severe a sanction where . . . the [plaintiff] 

was not responsible for his attorney’s mistakes.” Id. at 212. This court 

rightly “fail[ed] to see how a dismissal without prejudice is any less severe a 

sanction than a dismissal with prejudice” where “the statute of limitations 

prevents or arguably may prevent a party from refiling his case after it has 

been dismissed.” Id. at 213. Here, of course, Pennie is at least partially to 

blame for the delays, and the district court never suggested that a dismissal 

with prejudice would be too severe.7

Finally, based on the totality of circumstances, we conclude that a 

lesser sanction would not better serve the interests of justice. Griggs, 

905 F.3d at 804. The district court more than adequately attempted the 

lesser sanction of warning. The district court repeatedly communicated that 

Pennie must comply with the local counsel rule and issued an explicit warning 

of the risk of dismissal in its show cause order. “When lesser sanctions have 

proved futile, a district court may properly dismiss a suit with prejudice.” 

Hornbuckle v. Arco Oil & Gas Co., 732 F.2d 1233, 1237 (5th Cir. 1984); see

Sturgeon v. Airborne Freight Corp., 778 F.2d 1154, 1160 (5th Cir. 1985) (saying 

the same).

III. Conclusion

Accordingly, we AFFIRM the district court’s judgment.

7 Pennie also cites the unpublished opinion Cole v. Barnhart, 193 F. App'x 279 (5th 

Cir. 2006), which is not binding precedent and is readily distinguishable. In Cole, the 

district court “did not give notice of its intent to dismiss for failure to prosecute” and 

“made no finding of a clear record of delay or contumacious conduct by plaintiff.” Id. In 

this case, the district court did both.

Case: 20-10349 Document: 00515696880 Page: 9 Date Filed: 01/06/2021