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

_______________



### J OSEPH 

### C. O RDUNA 

### ,

Plaintiff-Appellant 

### , VERSUS


### T HE 

### T EXAS 

### C OMMISSION ON 

### ALCOHOL AND 

### D RUG 

### ABUSE AND 

### J IM 

### M C 

### D ADE 

### , Defendants-Appellee 

### s.

_________________________ Appeal from the United States District Court fo r the Southern District of Texas 

### m 4:01-CV-1474

______________________________2

Before S MITH , WIENER , and O WEN , Circuit Judges.
P ER C URIAM : *
The district court dismissed Joseph Ordu

na’s case against the Texas Com missio n on Alcohol and Drug Abuse (“TCADA”) and Jim McDade fo r lack of prosecution under Federal Rule of Civil Procedure 41(b). We affirm.

I. Orduna sued the State of Texa s and TCADA in April 2000. He amended his peti

tion in March 2001 and May 2001, nonsuiting the state and adding McDade, Golden Leadership Academy, and Richard Johnson as defendants.
The mat t e r was removed to federal court, and Orduna obtained leave to depose McDade and conduct limit ed discovery, but he took no action pur suant to that perm issio n. He obtained a default judgment against Golden Leadership Academy and Johnson in M arch 2002, and the court entered final judgment as to them.
In Septem

ber 2002, t h e district clerk’s of

fice accidentally clo sed the case as to all defendants, including TCADA and McDade. Orduna took no action fo r th ree years 1 u nt il the district court, in January 2006, noticed the case had been mist akenly clo sed and asked Orduna whether he int ended to p ursue claims against TCADA and McDade. After a hearing, Orduna filed a mo tion to re-open against TCADA and McDade, and th e court granted the mo tion.TCADA and McDade then moved for dismissal under rule 41(b) 2 fo r f ailing t o prosecute. The court granted the motion, finding th at Orduna’s inact io n 

### S

S not the clerk’s error 

### SS had caused the delay, because (1) Orduna should have know n it did not take three years for the court to set a trial date; (2) t he clerk’s error of clo sing the case was a matter of public record; and (3) Orduna had not conducted any disc overy or f iled any pleadings. Further, the court fo und th at Orduna’s inaction had hampered the discovery proce s s in such a way th at would prejudice TCADA and McDade. 3
II. We review fo r abuse of di scretion a dismi ssal for lack of prosecution. T ello v. C omm’r , 410 F.3d 743, 744 (5th Cir.), c ert. denied , 126 S. Ct. 381 (2005). The standard t o evaluate dismissals fo r lack of prosecutio n

* Pursuant to 5 TH C IR. 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 5 TH C IR . R. 47.5.4.

1 Orduna claims he wa s 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 ma y move for dismissal of an action or of any claim a gainst the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operat es 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 wit h prejudice fo r failure to prosecute are proper only where (1) there is a clear record of delay or contumacious conduct by the plaint iff and (2) the di stri ct court has e xpressl

y determined that lesser sanctions would not prom pt diligent prosecution, or the record shows th at the district court employed lesser sanctions th a t proved to be futile. In most cases, a plain record of delay or contumacious conduct is fo und if one of the th

ree aggravating factors i s also present: (1) delay caused by the plaintiff; (2) actual prejudice to the defendant; or (3) delay as a result of int entional conduct.
Stearman v. Comm’r , 436 F.3d 533, 535 (5th Cir.) (per curiam), cert. denied , 126 S. Ct. 2900 (2006) (internal citations omitted).
O rduna took no action fo r fo ur and a half years. 4 To conduct di scovery or file pleadings, he did not need the court to set a trial date, so he caused the delay. Also , TCADA wo uld suffer “actual prejudice,” because it no lo nger exists as an entity. The district court had discretion to di smiss 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 Harrels on v. United States , 613 F.2d 114, 116 (5th Cir. 1980) (per curiam) ( “In light of the significant inactivity of the plaintiff, we cannot say the district court abused its discretion in dismissing the complaint.”).