*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this opinion should not be published and is not precedent except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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 96-30841

Summary Calendar

_____________________

RAX GARBAGE DISPOSAL SERVICE, INC.,

Plaintiff-Appellant,

v.

McNEILUS TRUCK & MANUFACTURING CO., ET AL.,

Defendants,

 FORD MOTOR CORP.; A B C INSURANCE CO.;

 McNEILUS FINANCIAL INC., d/b/a McNeilus

 Truck & Manufacturing Co.,

 Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court

for the Western District of Louisiana

(95-CV-584)

_________________________________________________________________

February 24, 1997

Before KING, DUHÉ, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Rax Garbage Disposal Service, Inc., appeals the district

court’s order dismissing its case for violating a pretrial order

pursuant to Rule 16(f) of the Federal Rules of Civil Procedure. 

Finding no error, we affirm.
 

1Specifically, Judge Little’s standing order provides, in

pertinent part, as follows:

(1) After the complaint has been on file for 100 days,

the plaintiff shall initiate a conference among the

parties. At this conference, the attorneys shall

prepare a “plan of work” designed to avoid unnecessary

delay in the disposition of this matter. Items to be

considered shall include: schedule for completion of

discovery, a final date for filing dispositive motions,

adding additional parties, and filing amended

pleadings. Other matters that deserve special

attention at this conference include: the timing of

employment of experts, taking of depositions, and the

exchange of reports.

2

I. Background

Rax Garbage Disposal, Inc. (“Rax”) filed a suit for

redhibition for the sale of a defective vehicle against McNeilus

Truck Manufacturing Co. and several related entities

(collectively “McNeilus”) and Ford Motor Corp. (“Ford”) in

Louisiana Civil District Court on March 17, 1995. On April 3,

1995, McNeilus filed a removal notice to remove the case to the

Federal District Court for the Western District of Louisiana. 

Judge F. A. Little, Jr., was assigned to the case.

On April 7, 1995, all parties were notified of Judge

Little’s standing order for preparation of a pretrial work plan. 

This standing order requires the plaintiff to initiate a

conference after suit has been on file for 100 days for the

purposes of preparing a joint pretrial plan of work, from which a

scheduling order is developed. While the order requires all

parties to cooperate in good faith in developing the plan, the

plaintiff has responsibility for initiating the conference and

submitting the plan to the court.1
(2) The plan of work shall include terms agreed upon

by the parties, as well as any proposed terms for which

agreement has not been reached. The plaintiff shall be

responsible for submitting the plan, along with any

written reasons--presented at the conference--for

approval or disapproval of proposed terms to Judge F.A.

Little, Jr., within 10 days of the parties’ conference. 

The judge will make such changes, additions, or

modifications to the plan as he deems appropriate, and

the court will then enter the plan as its scheduling

order pursuant to Fed. R. Civ. P. 16(b).

(3) The court expects good faith and reasonableness from

the parties in developing and submitting the plan of work. 

The court anticipates little disagreement regarding

proposed plan terms and therefore expects the parties to

settle the vast majority of disputes without court

intervention. In the event a party, or a party’s

attorney, fails to participate in good faith, the court

will not hesitate to impose an appropriate sanction. . . .

3

On November 29, 1995, Rax had yet to submit a plan of work

to the court. The court issued an order reminding Rax of the

requirements of the standing order and notifying it that

dismissal might ensue if the work plan was not promptly

submitted. Rax had not submitted the required work plan on March

6, 1996, and the court accordingly dismissed the case without

prejudice.

Rax promptly filed a motion to have the case reinstated. In

its motion for reinstatement dated March 8, 1996, Rax

acknowledged its failure to file the work plan, partially relying

on its efforts to submit the case to mediation as a reason for

the delay. Further, Rax assured the court that the work plan

would be submitted without further delay. The district court

granted Rax’s motion and reinstated the case on May 9, 1996.
4

Rax sent letters to McNeilus and Ford on June 14, 1996,

requesting a statement of each defendant’s case, witness lists,

and trial exhibit lists. McNeilus responded on July 8,

apparently requesting that Rax submit a proposed work plan to

which McNeilus would respond. Rax answered on July 12, stating

that it would be difficult to prepare a discovery schedule

without knowledge of the number and nature of the defendants’

proposed witnesses. With the same letter, Rax propounded

interrogatories requesting, inter alia, the names of potential

fact and expert witnesses and copies of potential physical

evidence.

Still lacking the required work plan, the district court

dismissed the case without prejudice on its own initiative on

July 19, 1996. The court’s stated reason was Rax’s failure to

abide by the court’s standing order on developing the plan of

work. The court denied Rax’s motion to set aside the dismissal.

Rax timely filed a notice of appeal. On appeal, Rax raises

a single point of error: that the district erred in dismissing

Rax’s action on the court’s own initiative when at the time Rax

was prosecuting the action and complying with all Federal Rules

of Civil Procedure and all orders or deadlines imposed by the

court.

II. Discussion

A. Type of Sanction

At the outset, we must recognize that while the district

court dismissed this action without prejudice, the statute of
 

2Rax argues that the district court dismissed the action

under Fed. R. Civ. P. 41(b). While, it appears that Rule 16(f)

is more specifically targeted to a sua sponte dismissal for

violation of a pretrial order, we need not decide this issue. 

The standards governing both types of dismissals are identical. 

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

5

limitations on Rax’s redhibition claim has run. If the seller

was in good faith, a redhibition action must be brought within

four years from the date of sale or one year from the date the

defect is discovered, whichever comes first. LA. CIV. CODE ANN.

art. 2534 (West 1996). If the seller knew of the defect, the

action must be commenced within one year of the buyer’s discovery

of the defect. Id. Rax purchased the vehicle on September 14,

1993, and must have discovered the defect before March 17, 1995,

the date this suit was originally filed in state court. 

Therefore, the one year statute of limitations has run,

regardless of whether the sale was made in good faith. Where the

operation of the statute of limitations will act as a bar to the

further prosecution of a claim asserted in a suit dismissed

without prejudice, we will review the dismissal as one with

prejudice. Long v. Simmons, 77 F.3d 878, 879-80 (5th Cir. 1996).

B. Standard of Review and Applicable Law

Federal Rule of Civil Procedure 16(f) allows a court to

impose sanctions for failure “to obey a scheduling or pretrial

order, or if no appearance is made on behalf of a party at a

scheduling or pretrial conference.”2 The same standards for

reviewing dismissals for failure to prosecute under Fed. R. Civ.

P. 41(b) are to be applied to dismissals under Rule 16(f). 
6

Callip v. Harris County Child Welfare Dep’t, 757 F.2d 1513, 1518-

19 (5th Cir. 1985).

We evaluate an involuntary dismissal with prejudice under

Rule 16(f) for abuse of discretion. Price v. McGlathery, 792

F.2d 472, 474 (5th Cir. 1986). Because of the harshness of such

a sanction, we will affirm only when (1) there is a clear record

of delay or contumacious conduct by the plaintiff and (2) either

the district court has expressly determined that a lesser

sanction was not available or would be futile, or the record

indicates that the district court first employed lesser sanctions

that proved to be futile. Berry v. CIGNA/RSI-CIGNA, 975 F.2d

1188, 1191 (5th Cir. 1992). Additionally, in most cases in which

we have affirmed such a dismissal, we have found at least one of

three aggravating factors: “(1) delay caused by plaintiff

himself and not his attorney; (2) actual prejudice to the

defendant; or (3) delay caused by intentional conduct.” Price,

792 F.2d at 474.

C. Application of Law to Facts

1. Pattern of delay and contumacious conduct

Applying the above standards, we are not persuaded that the

district court abused its discretion in dismissing Rax’s action. 

There appears to be a clear record of delay and contumacious

conduct on the part of the plaintiff throughout the history of

this case. Rax was notified in April 1995 of its

responsibilities to initiate a conference after the case had been

on file for 100 days and to submit a work plan within 10 days of
 

3Rax’s counsel asserts that his failure to take steps

immediately following the reinstatement resulted from his or his

secretary’s carelessness in failing to immediately mail the

letter which was eventually sent on June 12, 1996. Had Rax

attempted at some earlier date to mail such a letter, or had the

letter actually attempted to follow the district court’s

directive to initiate a work plan conference, the argument would

be more compelling. However, the letter Rax sent in June did not

ask for a conference, nor did it include a proposed work plan. 

It merely requested arguably discoverable information from the

defendants. Rax was fully aware of the requirements of Judge

Little’s standing order and should have taken care to follow its

directives.

7

the conference. Rax failed for twelve months, from July 1995 to

July 1996, to initiate the conference or submit the work plan.

Rax was warned in November 1995 that failure to submit a

work plan might result in dismissal of its action. It was

further warned of the seriousness of its conduct when its action

was dismissed in March 1996. Rax was only able to get its case

reinstated after this first dismissal by promising that the work

plan would be submitted without further delay.

Even after its action was dismissed and reinstated, Rax

waited over a month to take what it called the “initial step”

towards developing a work plan.3 The only steps Rax took towards

developing a work plan were two letters, sent over one year after

the action had been initiated, in which it attempted to obtain

voluminous information from the defendants regarding potential

witnesses and exhibits. While the defendants may have been less

than enthusiastically cooperative with Rax, it does not appear

that either defendant acted in bad faith by refusing to respond

to Rax’s broad requests for information. Rather, the defendants

proposed that Rax submit a proposed work plan around which
8

negotiations would revolve. Rax argues that without the

information it requested from the defendants, it could not

develop a reasonable plan. Yet Rax never attempted to initiate a

work plan conference as it was required to do by Judge Little’s

standing order. Nor did it attempt to contact defendants by

telephone. 

Additionally, Rax did not complain to the district court

that the defendants were not cooperating until after the action

was dismissed for the second time, more than one year after Rax

should have initiated the work plan conference. If Rax was truly

hindered by the defendants’ refusals to disclose certain

information without a proposed work plan, it could have submitted

a unilateral work plan without any input from the defendants. 

Rax acknowledges that it should have either contacted counsel for

the defendants personally or submitted a unilateral work plan.

Case law also supports a finding that the delay in this case

warranted dismissal. In Porter v. Beaumont Enter. and Journal,

743 F.2d 269, 272 (5th Cir. 1984), we found that the plaintiff’s

failure to pay a process server, followed by an eight-month delay

before a dismissal hearing, and a further five-week delay after

the dismissal hearing, sufficiently supported the district

court’s dismissal of the action. See also Price, 792 F.2d at 474

(finding that dismissal was supported by plaintiff’s eight-month

delay in filing proposed pretrial order followed by plaintiff’s

counsel’s failure to appear at a pretrial conference).

2. Propriety of dismissal as a sanction
9

The district court did not expressly find that a lesser

sanction was unavailable or would prove futile. Therefore, we

look to the record to determine if lesser sanctions were first

imposed and proved to be futile. The district court attempted a

less severe sanction when it dismissed Rax’s action in March and

reinstated in May. Yet Rax was still dilatory in taking the

actions required by Judge Little’s standing order. As such a

drastic measure failed to correct Rax’s conduct after the first

dismissal, the district court could have correctly determined

that a lesser sanction would have been futile after Rax again

failed to abide by the court’s order. Therefore, dismissal was

an appropriate sanction.

This set of circumstances is virtually identical to the

situation in Price, in which we found dismissal appropriate when

the district court had previously dismissed and then reinstated

the plaintiff’s action only to have plaintiff’s counsel fail to

appear for a pretrial conference. Id. at 475.

3. Aggravating factors

Out of the three aggravating factors supporting a dismissal

with prejudice, only one is involved in this case: intentional

conduct. The existence of even one aggravating factor, when

combined with a record of delay and contumacious conduct, will

support a dismissal with prejudice. Callip, 757 F.2d at 1519.

Rax argues that any delay it caused was purely

unintentional. However, in its failure to abide by the district

court’s standing order for over a year, Rax showed little regard
10

for the court’s attempts to control and maintain its docket

efficiently. Rax was aware of the standing order yet chose to

disregard it entirely until its action was dismissed and

reinstated. After the reinstatement, Rax chose to ignore the

court’s mandate to initiate a work plan conference.

Again, Rax’s conduct is similar to that in Price, in which

the plaintiff argued that its failure to submit a proposed

pretrial order resulted from the defendant’s refusal to meet to

discuss the order. 792 F.2d at 475. We found that this excuse

failed to explain adequately why the plaintiff took more than ten

months to comply with the district court’s order to submit the

proposed pretrial order. Id. As in Price, Rax’s excuse carries

little weight when it comes twelve months after the work plan

originally was due.

AFFIRMED.