United States Court of Appeals

Fifth Circuit

FILED

February 22, 2007

Charles R. Fulbruge III

Clerk

In the

United States Court of Appeals

for the Fifth Circuit

_______________

m 06-20555

Summary Calendar

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JOSEPH C. ORDUNA,

Plaintiff-Appellant,

VERSUS

THE TEXAS COMMISSION ON ALCOHOL AND DRUG ABUSE

AND

JIM MCDADE,

Defendants-Appellees.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

m 4:01-CV-1474

______________________________
2

Before SMITH, WIENER, and OWEN, 

Circuit Judges.

PER CURIAM:

*

The district court dismissed Joseph Orduna’s case against the TexasCommission on Alcohol and Drug Abuse (“TCADA”) and Jim

McDade for lack of prosecution under Federal

Rule of Civil Procedure 41(b). We affirm.

I.

Orduna sued the State of Texas and

TCADA in April 2000. He amended his petition in March 2001 and May 2001, nonsuiting

the state and adding McDade, Golden Leadership Academy, and Richard Johnson as defendants. 

The matter was removed to federal court,

and Orduna obtained leave to depose McDade

and conduct limited discovery, but he took no

action pursuant to that permission. He obtained a default judgment against Golden

Leadership Academy and Johnson in March

2002, and the court entered final judgment as

to them. 

In September 2002, the district clerk’s office accidentally closed the case asto all defendants, including TCADA and McDade. Orduna took no action for three years1

until the

district court, in January 2006, noticed the

case had been mistakenly closed and asked Orduna whether he intended to pursue claims

against TCADA and McDade. After a hearing, Orduna filed a motion to re-open against

TCADA and McDade, and the court granted

the motion. 

TCADA and McDade then moved for dismissal under rule 41(b)2

for failing to prosecute. The court granted the motion, finding

that Orduna’s inactionSSnot the clerk’s errorSShad caused the delay, because (1) Orduna should have known it did not take three

years for the court to set a trial date; (2) the

clerk’s error of closing the case was a matter

of public record; and (3) Orduna had not conducted any discovery or filed any pleadings.

Further, the court found that Orduna’s inaction had hampered the discovery process in

such a way that would prejudice TCADA and

McDade.3

II.

We review for abuse of discretion a dismissal for lack of prosecution. Tello v.

Comm’r, 410 F.3d 743, 744 (5th Cir.), cert.

denied, 126 S. Ct. 381 (2005). The standard

to evaluate dismissals for lack of prosecution

* Pursuant to 5TH CIR. R. 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 CIR. R. 47.5.4.

1 Orduna claims he was delaying because he

was waiting for the court to set a trial date.

2 That rule states:

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 of any claim against the defendant. Unless

the court in its order for dismissal otherwise

specifies, a dismissal under thissubdivision and

any dismissal not provided for in thisrule, other

than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon

the merits. 

3 After TCADA and McDade were added to the

suit, the legislature dissolved TCADA, and McDade has retired.
3

is plain:

Dismissals with prejudice for failure to prosecute are proper only where (1) there is a

clear record of delay or contumacious conduct by the plaintiff and (2) the district

court has expressly determined that lesser

sanctions would not prompt diligent prosecution, or the record showsthat the district

court employed lessersanctionsthat proved

to be futile. In most cases, a plain record

of delay or contumacious conduct is found

if one of the three aggravating factors is

also present: (1) delay caused by the plaintiff;(2) actualprejudice to the defendant; or

(3) delay as a result of intentional conduct.

Stearman v. Comm’r, 436 F.3d 533, 535 (5th

Cir.) (per curiam), cert. denied, 126 S. Ct.

2900 (2006) (internal citations omitted).

Orduna took no action for four and a half

years.4 To conduct discovery or file pleadings,

he did not need the court to set a trial date, so

he caused the delay. Also, TCADA would

suffer “actual prejudice,” because it no longer

exists as an entity. The district court had discretion to dismiss Orduna’s claims, and based

on the guiding standard, it did not abuse that

discretion.

The judgment of dismissal is AFFIRMED.

4 Prolonged inactivity is sufficient to warrant

dismissal in this case. See Harrelson v. United

States, 613 F.2d 114, 116 (5thCir. 1980) (per curiam) (“In light of the significant inactivity of the

plaintiff, we cannotsay the district court abused its

discretion in dismissing the complaint.”).