* Pursuant to Local 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opinion should not be published and is not precedent except under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 Local Rule 47.5.4. UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 96-30037

Summary Calendar

CARL D. JACKSON,

Plaintiff-Appellant,

VERSUS

MARK BADEN, Individually and in his capacity as

Major Rapides Parish Sheriff Dept.; JOHN FAGLIE,

Individually and in his capacity as Captain

Rapides Parish Sheriff Dept.; ROBERT SONDOVAL,

Individually and his capacity as Detective

Rapides Parish,

Defendants-Appellees.

Appeal from the United States District Court

For the Western District of Louisiana

(94-CV-1259)

August 1, 1996

Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.

PER CURIAM: *

BACKGROUND2

In July 1994, Carl Jackson, a Louisiana resident, filed a

civil rights lawsuit against several law enforcement officials in

Rapides Parish, Louisiana. He alleged that, in 1988, they had

conspired to frame him for the first degree murder of two men. He

maintained that he had been detained on the charges for two years

before bei ng released on bond and he sought monetary damages.

Jackson’s compl aint was filed by Randy Collins, a Shreveport

attorney.

On August 26, 1994, John Sherman, a Texas attorney, petitioned

for admission to a ppear p ro hac vice to represent Jackson. The

district court granted Sh erman’s petition, but required him to

proceed “in the company of R. Collins of Shreveport, La.” Between

November 1994 and Jan uary 1995, the defendants filed answers to

Jackson’s complaint.

On May 12, 1995, the court issued a notice, along with a

standing pretrial order, scheduli n g a pretrial conference for

August 2, 1995. On June 13, 1995, the court issued an amended

scheduling order, directing that “[j]oinder of parties and

amendment of pleadings must be completed on or before September 8,

1995,” and rescheduling the pretrial conference for December 8,

1995. Dispositive motions were due by October 8, 1995. Pretrial

stipulations were to be filed and witness lists were to be

furnished to opposing counsel at least two weeks and 90 days prior

to th e pretrial conference, respectively. The order also stated

tha t “[t]he time limits set forth in this Order shall not be1 Although the court allowed Sherman to appear p ro hac vice “in

the company of” Collins by April 1995, Collins was no longer being

listed as co-counsel on Jackson’s pleadings.

3 modified except by leave of Court upon a showing of good cause.”

On September 13, 1995, Jackson moved to file an amended

complaint to add additional defendants; he included a “certificate

o f conference” noting he had conferred with an opposing attor ney

who was unopposed to the f iling of the amended complaint. On

September 15, 1995, the court granted him leave to file his amended

complaint. The amended complaint itself was filed on the same day.

The defendants filed answers on October 18, 1995, and November 15,

1995. On December 5, 1995, three of the defendants moved for

summary judgment.

On December 7, 1995, Jackson, through attorney Sherman, moved

for a continuance of the pretrial conference scheduled for December

8, 1995. Sherman asserted that he was set to appear in federal

district court in Texas in a criminal case and that he had not had

an opportunity to respond to the defendants’ summary judgment

motion filed only two days earlier. At the same time, Sherman

bela tedly submitted a witness list, exhibit list, proposed jury

instructions, pretrial stipulations, and proposed voir dire

questions. It is unclear why Jackson’s other attorney, Collins,

could not appear at the conference. 1

On December 8, 1995, the district court issued a judgment of

dismissal, stating that:4 Plaintiff has f ailed to comply with the order of

this court concerning pretrial procedures, has

failed to attend the conference on 8 December 1995,

and has caused an inconvenience to those in

attendance and to the co urt. Pursuant to Fed. R.

Civ. P. 16(f), this case is hereby DISMISSED. Only

upon a showing of good cause and restitution to the

other parties will this matter be considered for

reopening.

On December 11, 1995, the district court handwrote a note on

Jackson’s proposed continuance order:

Denied

- Conferen ce has been set for months.

Sherman[’s] office was advised that a continuance

would not be granted & Sherman’s presence was

expected as well as compliance with pretrial

schedule. Sherman didn’t appear on 8 Dec - Case

was dismissed.

Apparently, no similar warning was given to co-coun sel Collins.

Jackson timely filed a notice of appeal.

Jackson argues that the district court abused its discretion

in dismissing his complaint because there was no “clear record of

delay or contumacious conduct” on his part. He contends that the

defendants’ summary judgment motion was itself untimely.

The defendants-appellees (he reinafter, “appellees”) respond

that Jackson has provided no excuse for the failure of his other

attorney, Collins, to appear at the December 8, 1995, conference.

They maintain that neither attorney “made [an] attempt to comply

with any portion of the Pretrial Orders until the ev e of the

Pretrial Conference.” They argue that there is a “clear record of

contumacious conduct” by Jackson, which “can be nothing other than

intentional.” They conclude that, “without documentation2 “Contumacious” has been defined has “willfully and obstinately

disobedient.” Random House Dictionary (1973 ed.).

5 concerning [Sherman’s] criminal trial or when it was scheduled,”

Jackson’s claim regarding the scheduling conflict is completely

unsupported.

A judge may order sanctions, including dismissal, “if no

a ppearance is made on behalf of a party at a . . . pretrial

conference.” Fed. R. Civ. P. 16(f). Sanctions under Rule 16(f)

are reviewed for abuse of discretion. S .E.C. v. First Houston

Capital Resources Fund, Inc.

, 979 F.2d 380, 381-82 (5th Cir. 1992).

Dismissal is a harsh sanction, and this court will affirm only if

a "clear record of delay or contumacious 2 conduct by the plaintiff"

exists and "lesser sanctions would not serve the best interests of

justice." Price v. McGlathery , 792 F.2d 472, 474 (5th Cir. 1986)

internal quotation marks and citation omitted).

“[E]ven if the record teems with instances of delay or other

egregious behavior, a district co urt c annot impose the extreme

sanction of dismissal `unless the court first finds that a lesser

sanction would not have served the interests of justice.’” First

Houston

, 979 F.2d at 382 (quoting McNeal v. Papason

, 842 F.2d 787,

793 (5th Cir. 1988) (Rule 41(b) dismissal)) (emphasis added). The

court must expressly consider such alternative sanctions. I d

. The

court should also consider “aggravating factors such as whether the

plaintiff himself contributed to the delay, whether the defendant6

suffered actual prejudice, and whether the delay was intentional.”

John v. State of La. , 828 F.2d 1129, 1131 (5th Cir. 1987).

In John

, this court described the offending attorney’s conduct

as “careless, inconsiderate, and understandably exasperating to a

conscientious trial judge,” but held it insufficient to rise to the

level of “contumacious,” as it “more closely ap proximate[d] the

kind of negligence that does not warrant dismissal with prejudice

than the stubborn resistance of authority that does.” I d

. at 1131-

32. Usually, “bad faith” or “persistence disobedience to court

orders” is required to justify such dismissal. Id . at 1132.

Arguably, the court expressly considered alternative sanctions

in this case when, on December 8, 1995, it dismissed Jackson’s

complaint while stating that it would consider reopening the matter

if Jackson paid restitution and showed good cause. Nothing in the

record suggests an attempt by Jackson to comply with these possible

alternatives.

Nonetheless, the court’s dismissal order was an abuse of

discretion. Neither a “clear record of delay [n]or contumacious

conduct” exists on the part of Jackson. Although Jackson moved to

amend his complaint two days after the deadline for amendments to

pleadings as set by the court’s scheduling order, the court granted

Jackson leave to file the amended complaint. The scheduling order

had left open the possibility that, upon motion, the court would

amend deadlines.7

Except for Sherman’s failure to appear at the pretrial

conference and his failure to comply with some of the deadlines in

the court’s scheduling order, no other instance of delay or

improper conduct by Jackson or his attorneys appears in the record.

The appellees pointedly refer to the failure of Jackson ’s other

attorney, Collins, to offer an excuse for his own failure to appear

at the December 8, 1995, hearing. However, the threshold issue

addressed in this court’s case authority on Rule 16(f) dismissals

is not the adequacy of the excuses of those who disobey court

orders, but whethe r a “clear record[s] of delay or contumacious

conduct” exists.

The Supreme Court case upon which the appellees rely, Link v.

Wabash R. R. Co.

, 370 U.S. 62 8 (1962), is distinguishable. The

action in Link had been pending for approximately six years at the

time the district court dismissed it for lack of prosecution, under

Fed. R. Civ. P. 41(b), after the plaintiff’s attorney failed to

appear at a pretrial conference. L ink

, 370 U.S. at 627-28. The

attorney in Link had phoned the judge’s secretary seeking a

continuance, id

., whereas Jackson’s attorney filed a written motion

for one. The district court in L ink “set out the entire history of

the case,” including earlier delays, in justifyin g its dismissal

order. Id . at 634-35. The court in this case did no such thing.

In any event, the Supreme Court did not require the “contumacious”

conduct required by this court to justify a Rule 16(f) dismissal.3 C f

. Price

, 792 F.2d at 474. In P rice

, this court found a Rule

16(f) dismissal appropriate in the following circumstances:

Plaintiff’s counsel failed without explanation to c omply for ten

months with a court order to file a pretrial order, prompting the

court to dismiss the case. I d

. The court then granted the

plaintiff’s motion to reinstate the case, giving the plaintiff “one

last opportunity” to comply with court orders. I d

. Plaintiff’s

counsel then failed to appear at the pretrial conf erence, again

without explanation. I d

. This was deemed a “clear pattern of

delay and contumacious conduct.”

8 See id

., passim

.

The appellees’ assertions that the failure of Jackson and his

attorneys to atte nd the December 8, 1995, conference was

intentional are conclusional. The record in fact shows negligent

behavior by Jackson’s attorneys, rather than “intentional” or

“contumacious” conduct. Jackson’s attorneys received no warning

about their noncompliant conduct prior to the dismissal order

itself. 3 Moreover, there is no evidence of “aggravating factors”

such as Jackson’s own role in his failure t o appear at the

conference or that the defendants were prejudiced beyond the costs

expended to appear in court. Accordingly, we VACATE the judgment

of dismissal and REMAND for further proceedings.