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that this opinion should not be published and is not precedent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

United States Court of Appeals

Fifth Circuit

FILED

August 23, 2006

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

05-10867

In The Matter Of: LEWIS EUGENE WOOD,

Debtor,

********************************

JAMES P. GRAHAM;

RAY S. TOLSON, III,

Appellants,

v.

LEWIS EUGENE WOOD,

Appellee.

Appeal from the United States District Court for the

Northern District of Texas

(05-CV-332)

Before JONES, Chief Judge, and BARKSDALE, and BENAVIDES, Circuit

Judges.

BENAVIDES, Circuit Judge:*

This appeal is from the dismissal of a bankruptcy proceeding

for failure to prosecute. Applying our precedent, we conclude that
2

there is not a clear record of delay or contumacious conduct by the

Appellants. Further, the record does not show either that the

court determined that lesser sanctions would not prompt diligent

prosecution or that it employed lesser sanctions which proved to be

futile. Under those circumstances, the bankruptcy court abused its

limited discretion in dismissing for failure to prosecute. We

therefore vacate and remand for further proceedings.

I. BACKGROUND AND PROCEDURAL HISTORY 

Appellee Lewis Wood (“Appellee”) procured a loan of $250,000

from Dallas National Bank. Pursuant to an agreement, James P.

Graham and Ray S. Tolson, III (“Appellants”) provided land as

collateral for the loan. Appellee agreed to use the proceeds of

the loan to fund a portion of construction costs for a project by

Urban Woods on Commerce, Ltd. (“Urban Woods”). In exchange for

providing this collateral, Appellants were to receive a portion of

the profits from the project. Appellants allege that Appellee did

not use the monies in conjunction with Urban Woods; instead, they

allege that he diverted the monies to his other “projects and/or

companies.” The project failed, and Appellee defaulted on the

loan. Appellants assert that, as guarantors, they were required to

pay off the loan to Dallas National Bank. 

Appellee later filed for personal bankruptcy protection.

Appellee listed a debt of approximately $300,000 owed to Tolson,

one of the Appellants. On March 22, 2004, pursuant to 11 U.S.C.

section 523(a)(2) and (a)(4), Appellants filed their objection to
1 In the motion, counsel indicated that, after receiving a

phone call from the clerk advising that fees were due, his

secretary mailed the check on March 29. The next day he received

a notice of fees due dated March 24 and also learned of the

dismissal order. Counsel indicated that the failure to pay timely

was “not intentional, nor the result of conscious indifference, but

was accidental.” Finally, counsel argued that reinstating the case

would not cause delay or prejudice. 

3

the dischargeability of the debt. Three days later, the bankruptcy

court entered a scheduling order setting the trial docket call for

August 9. On March 30, the bankruptcy court dismissed the

complaint because Appellants had not paid the filing fee. On April

5, Appellants filed a motion to vacate the dismissal order.1 The

court granted Appellants’ motion, vacated the dismissal order on

April 7, and reinstated the scheduling order. 

On May 12, Appellee filed an answer. On May 14, Appellants

filed a first amended objection to dischargeability, which

Appellees answered on May 24. Meanwhile, Appellants had served

Appellee with requests for production of documents and

interrogatories. On June 18, Appellants received Appellee’s

answers to the interrogatories and response to the request for

production. Appellants deemed the responses insufficient and filed

a motion to compel discovery and to impose sanctions on July 8. On

July 22, the court ordered Appellee to file a detailed response to

the motion to compel. Appellees filed a response on August 4.

At the trial docket call on August 9, the bankruptcy court

continued the trial docket call to November 8. Notably, Appellants

did not move for the continuance. The court apparently continued
2 That exhibit list indicated Appellee intended to introduce

the following exhibits at trial: (1) “Note to Dallas Bank”; (2)

“Assignment of Net Profits Interest dated November 3, 2000"; (3)

“Any exhibits timely designated by Plaintiffs”; and (4) “Any

exhibits used for impeachment.” 

3 Appellants also listed these categories of exhibits: (1)

documents designated by the defendant; (2) documents provided to

plaintiff by debtor/defendant; and (3) “[b]ank records of any

account of Debtor/Defendant or any of his companies.”

4

it because of the discovery dispute. The discovery deadline was

rescheduled for October 12. 

On September 1, the bankruptcy court granted Appellants’

motion to compel discovery and ordered Appellee to furnish

additional responses to the interrogatories. On September 15, the

parties filed a stipulation that Appellee had supplemented his

responses to the interrogatories and request for production of

documents pursuant to the court’s order. On October 21, Appellee

filed a witness list indicating that he would be the only defense

witness for the trial scheduled for the week of November 15, 2004.2

On October 26, Appellants filed a witness list comprised of the

parties to the suit and “any person listed in Plaintiffs’ responses

to discovery.”3 In that filing, Appellants further indicated to

the court that they had: 

received six boxes of documents on October 22, 2004

related to the transaction that is the subject of this

suit and Plaintiffs’ counsel have not had time to review

in any detail the documents provided by Debtor/Defendant.

Dallas National Bank, a non-party, has not yet responded

to discovery requests. Therefore, in the interest of

justice Plaintiff intends to file a Motion for

Continuance.
5

On November 8, Appellants filed a motion to continue the trial

setting to allow discovery to be completed. In the motion,

Appellants provided as follows:

On May 21, Graham and Tolson sent their first round

of paper discovery. On June 18, responses with

objections were received by Graham. On July 8, Graham

filed a Motion to Compel and an Order was issued on

August 31. On September 10, Graham received supplemental

responses from Defendant. On October 11, Graham sent a

Subpoena to Dallas National Bank for documents and

cancelled checks. Those documents were received by

Graham on November 1, but did not include deposit slips.

On October 25, a Witness List and notice that Graham

would seek a continuance was filed because he had not

received essential documents. On November 1, Plaintiffs

received documents from Dallas National Bank including a

copy of a wire transfer of fund to American Title

Company. On November 5, Graham sent a Subpoena to

American Title Company and on November 8 sent a subpoena

to Bank of Texas, Tulsa, Oklahoma for documents. 

In spite of Plaintiffs’ diligence, essential records

are required, including documents showing the use of the

loaned funds. Additional subpoenas have been issued for

documents held by American Title Company Dallas (the

recipient of the loan proceeds) and Bank of Texas, Tulsa,

Oklahoma (the holder of the bank deposit slips which were

not among the documents produced by Defendant).

Graham and Tolson issued a non-party subpoena to

Dallas National Bank on October 11, 2004 to obtain the

entire record of the transaction. The bank provided a

response on November 1, 2004, which showed a wire

transfer of $242,000.00 into a previous[ly] unknown

account of Defendant at American Title Company. Graham

and Tolson issued a subpoena to American Title, but no

response has yet been received.

Later that same day, the bankruptcy court held its previously

scheduled docket call. Appellants announced not ready for trial,

and from the bench the court dismissed the case for failure to
4 Although the court did not expressly rule from the bench on

the motion to continue, it implicitly denied it by dismissing the

suit.

6

prosecute.4 On November 15, the bankruptcy court entered a written

order dismissing the case. In its entirety, the order provided

that:

THIS CAUSE having come before this Court on November

8, 2004, for Docket Call on Plaintiff's Complaint to

Determine Dischargeability of Debt, and the Plaintiffs,

having announced that they were not ready for trial, and

having no reasonable explanation for the need for a

continuance, and this being a continued Docket Call from

August 9, 2004, it is, therefore ORDERED, ADJUDGED and

DECREED that:

The above-styled and numbered adversary proceeding

shall be and is hereby DISMISSED FOR WANT OF

PROSECUTION.

Appellants subsequently filed a motion to reinstate or in the

alternative a motion for a new trial, both of which the bankruptcy

court denied in a written order. In a memorandum opinion and

order, the district court affirmed the bankruptcy court’s judgment,

which Appellants now appeal.

III. ANALYSIS

A. Dismissal for Failure to Prosecute

Appellants argue that the bankruptcy court erred in dismissing

the case for failure to prosecute. Although the order did not

provide whether the dismissal was with prejudice, this Court has

treated a dismissal for failure to prosecute as an involuntary

dismissal under Federal Rule of Civil Procedure 41(b), which is a
5 Rule 41(b) is made applicable by Bankruptcy Rule 7041.

7

dismissal with prejudice.5 See Boudwin v. Graystone Ins. Co., 756

F.2d 399, 400 n.1 (5th Cir. 1985). 

This Court reviews a dismissal with prejudice for failure to

prosecute for abuse of discretion. Berry v. CIGNA/RSI-CIGNA, 975

F.2d 1188, 1191 (5th Cir. 1992). “A dismissal with prejudice is an

extreme sanction that deprives the litigant of the opportunity to

pursue his claim.” Id. (internal quotation marks and citations

omitted). Thus, we have limited a trial court’s discretion to

dismiss cases with prejudice. Id. More specifically, we have

found no abuse of discretion only if “(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 shows that the

district court employed lesser sanctions that proved to be futile.”

Id. (citations and footnote omitted). Further, when this Court

affirms such a dismissal, it usually finds one of the following

aggravating factors: “(1) delay caused by [the] plaintiff himself

and not his attorney; (2) actual prejudice to the defendant; or (3)

delay caused by intentional conduct.” Id. (internal quotation

marks and citations omitted) (brackets in opinion). 

Here, the bankruptcy court's order of dismissal provides that

(1) Appellants did not have a reasonable explanation for the need

for a continuance when they announced not ready for trial and that
6 Appellee relies on Rule 15 of the Federal Rules of Civil

Procedure, made applicable by Bankruptcy Rule 7015. 

8

(2) this was a continued docket call from August 9. The

continuance from the August 9 docket call, however, appears to be

based on a discovery dispute, which the court ultimately resolved

in Appellants’ favor. That continuance should not weigh against

Appellants. As set forth above, this Court must determine whether

there is contumacious conduct by the plaintiff or a clear record of

delay. 

“Contumacious Conduct”

Appellee asserts that Appellants’ failure to: (1) timely pay

the filing fee; (2) move for leave of court to file an amended

pleading after a responsive pleading had been filed;6 (3) file

proposed findings of fact and conclusions of law; and (4) “formally

request a continuance” until docket call constitute contumacious

conduct. “Contumacious” is defined as “stubbornly perverse or

rebellious; willfully disobedient.” Webster's College Dictionary

297 (1995). It is worth noting that neither in its order of

dismissal nor its order denying the motion to vacate the dismissal

order and reinstate the case did the bankruptcy court rely on the

second and third “failings” alleged above by Appellee. 

Although counsel failed to timely pay the filing fee, once

notified of the error counsel quickly rectified it and, in the

successful motion to reinstate the case, indicated that it was not

intentional. With respect to failing to move for leave to file an
9

amended pleading, at oral argument Appellants pointed out that the

amended complaint was filed just two days after Appellee’s

responsive pleading, suggesting the pleadings may have “crossed in

the mail.” With respect to the “failure” to file proposed findings

of fact, Appellants state that they did not do so because, as

represented to the court in their October 26 filing, they intended

to (and later did) move for a continuance. Although Appellants

should have timely filed the motion for a continuance, they

provided both the court and opposing counsel notice of their intent

to do so approximately two weeks prior to the docket call.

Ultimately, Appellants did belatedly file it prior to dismissal.

We conclude that although counsel’s conduct may appear careless, it

does not constitute “willfully disobedient” conduct.

“Clear Record of Delay”

We have explained that a clear record of delay entails

“significant periods of total inactivity.” Berry, 975 F.2d at 1191

n.5 (internal quotation marks and citation omitted). Referring to

Appellants’ issuance of a subpoena the day before the discovery

deadline, Appellee argues that “[w]hen a party faced with a

deadline 27 days away does nothing for 26 days, that is a

significant period of time.” Twenty-six days does not constitute

a significant period of time under our precedent. “[O]ur cases

recognize that delay which warrants dismissal with prejudice must

be longer than just a few months . . . .” McNeal v. Papasan, 842
10

F.2d 787, 791 (5th Cir. 1988). This Court has made clear that

dismissals are for “egregious and sometimes outrageous delays.”

Rogers v. Kroger, 669 F.2d 317, 321 (5th Cir. 1982). See Callip v.

Harris County Child Welfare Dep’t, 757 F.2d 1513, 1519-21 (finding

clear record of delay after plaintiff missed nine deadlines in two

and one-half years); Delta Theatres v. Paramount Pictures, 398 F.2d

323 (5th Cir. 1968) (affirming dismissal of a particularly

egregious fourteen-year old case that was dormant for seven years).

Further, the 26-day period relied upon by Appellee is only one time

period, and our precedent indicates that there must be “significant

periods,” plural. The instant case was filed in March 2004 and

dismissed for failure to prosecute less than eight months later.

See Morris v. Ocean Systems, 730 F.2d 248, 252 (5th Cir. 1984)

(holding that the court “exceeded its well-defined discretion” in

dismissing for failure to prosecute when only eight months elapsed

from date of the first status conference to the date of its

dismissal). 

In numerous cases, this Court has concluded that a

“plaintiff’s failure to comply with scheduling and other pretrial

orders and rules did not establish a clear record of delay or

contumacious conduct.” Callip, 757 F.2d at 1520 & n.10 (collecting

cases). We explained that “[m]ost of these cases involve

noncompliance with two or three orders or rules of the district

court.” Id. at 1520-21. 
11

For example, in Rogers, this Court held that a district court

abused its discretion in dismissing for failure to prosecute. 669

F.2d 317. In that case, Rogers filed a racial discrimination suit

against his employer, Kroger, on May 8, 1978. The case was on the

docket a total of two years and four months and, during that time,

lay dormant for over a year. The parties filed two agreed or

stipulated motions to extend deadlines, and the plaintiff and the

defendant each filed two motions to extend various discovery

deadlines, which resulted in changing the date of the docket call

twice. 

Additionally, on September 8, 1980, the plaintiff filed a

motion to continue the trial, arguing that there had not been

adequate time to prepare because the defendant’s responses to

interrogatories were filed ten days late. Two days later, the

court “called the case for trial.” Id. at 319. New counsel

appeared on behalf of Rogers and requested that she be substituted

as counsel. She also requested a two-week continuance, explaining

that she was unprepared to proceed to trial because of difficulties

assimilating the defendant’s interrogatory responses. Defense

counsel objected and announced ready for trial. After reviewing

the procedural history of the case, the court, noting that counsel

had been unprepared without cause in a previous case, denied the

continuance and dismissed for failure to prosecute under Rule

41(b). 
12

On appeal, this Court conducted a thorough review of our

caselaw with respect to dismissals for failure to prosecute.

Rogers, 669 F.3d 319-21. We observed that “cases in this circuit

in which dismissals with prejudice have been affirmed on appeal

illustrate that such a sanction is reserved for the most egregious

of cases, usually cases where the requisite factors of clear delay

and ineffective lesser sanctions are bolstered by the presence of

at least one of the aggravating factors.” Id. at 320 (footnote

omitted). Further, we noted that, although the majority of the

pretrial delay was attributable to the plaintiff, some was

attributable to the defendant. We concluded that “Rogers’ case

lacks all of the elements that justified dismissal with prejudice

in our appellate decisions affirming such Rule 41(b) dismissals.”

Id. at 321. Thus, we held that the district court had abused its

discretion in dismissing the case and reversed and remanded. 

The instant case was on the docket a total of only eight

months, while the Rogers case lay dormant over a year. Also, in

Rogers, the docket call date was continued twice, and, in the

instant case, the docket call date was continued once. Indeed, the

only docket call continuance occurred because of a discovery

dispute that ultimately was resolved in Appellants’ favor.

Therefore, because Appellee’s conduct in responding to discovery

requests resulted in continuing the first docket call, that delay

is attributable to Appellee. Further, Appellant filed only one
13

motion for an extension of time, and, in Rogers, the plaintiff had

filed several such motions. Although Appellants’ counsel should

have filed the motion to continue in a more timely manner, counsel

had notified the court of his intention to so move approximately

two weeks prior to the docket call. In short, the record in Rogers

evidences more delay than the case at bar. Accordingly, in light

of our holding that the facts of Rogers did not demonstrate a

record of clear delay, we are compelled to conclude that this

record falls short of clear delay.

No Consideration of Lesser Sanctions

Additionally, there is no indication that the court had

considered whether lesser sanctions might be appropriate. This

Court has explained that “[a]ssessments of fines, costs, or damages

against the plaintiff or his counsel, attorney disciplinary

measures, conditional dismissal, dismissal without prejudice, and

explicit warnings are preliminary means or less severe sanctions

that may be used to safeguard a court’s undoubted right to control

its docket.” Rogers, 669 F.2d at 321. 

Nonetheless, relying on Sturgeon v. Airborne Freight, Appellee

argues that dismissing with prejudice was a lesser sanction in that

Appellants were not exposed to possible liability for costs. 778

F.2d 1154, 1159-60 (5th Cir. 1985). We find Sturgeon inapposite.

In Sturgeon, the case had been called to trial, and a jury had been

selected prior to the plaintiff moving for a continuance. “A party
7 Moreover, we found the plaintiff’s actions in Sturgeon

constituted intentional conduct. Id. at 1160-61. Here, Appellants

notified both the court and Appellee that they were going to file

a motion for continuance approximately two weeks prior to the

docket call. Although counsel’s belated filing of the motion for

continuance is not to be commended, we are not prepared to

characterize it as intentional conduct.

8 This Court very recently questioned (but did not decide)

whether there is some tension in our caselaw with respect to the

standard used to determine whether the lesser-sanctions factor is

satisfied. Sealed Appellant v. Sealed Appellee, 452 F.3d 415, 417

n.3, 420 (5th Cir. 2006). As set forth previously, because the

first factor regarding clear record of delay or contumacious

conduct was not established, even assuming the lesser-sanctions

factor was shown, it was error to dismiss for failure to prosecute.

Thus, we find it unnecessary to reach the question raised in

Sealed Appellant regarding the proper standard for determining

whether the lesser-sanctions factor is met.

14

cannot ordinarily be allowed to force an unmerited continuance by

simply refusing to go forward with a trial in which the jury has

already been selected.” Id. at 1160 (citation omitted). Here,

although there was a trial docket call, the case had not been

called to trial.7 We do not find Sturgeon controlling. Assuming

arguendo that the lesser-sanctions factor is satisfied, because

there was not a clear record of delay or contumacious conduct by

Appellants, the dismissal for failure to prosecute is still error.8

Aggravating Factors

Further, there is no indication that any of the three

aggravating factors listed above are present in this case. First,

there is no indication that the delay was caused by Appellants (as

opposed to their counsel). Second, in his brief, Appellee does not

even attempt to argue that he has or would suffer actual prejudice
15

due to the delay. Third, the evidence does not indicate that the

conduct was intentional. 

In conclusion, although Appellants’ counsel was not “an

exemplar of efficiency, [the] conduct simply did not equal the

delinquencies that this court has found amount to a clear record of

delay in affirming other Rule 41(b) dismissals with prejudice.”

Rogers, 669 F.2d at 321. Accordingly, although we are mindful of

and respect the right of a trial court to control its busy docket,

our precedent instructs that the bankruptcy court abused its

limited discretion in dismissing for failure to prosecute on this

record. 

B. Denial of Motion for Continuance

Finally, Appellants argue that the bankruptcy court abused its

discretion in failing to grant their motion for a continuance. For

purposes of completeness and to ensure adequate time for

Appellants to prepare their case on remand, we address the error in

denying the motion for continuance. This Court reviews the denial

of a motion to continuance for abuse of discretion and “will not

substitute our judgment concerning the necessity of a continuance

for that of the district court unless the complaining party

demonstrates that it was prejudiced by the denial.” See Streber v.

Hunter, 221 F.3d 701, 736 (5th Cir. 2000) (internal quotation marks
9 Appellee did not respond to these allegations in his brief.

At oral argument, without explication, Appellee’s counsel asserted

that Appellee had a defense. 

16

omitted). This is a closer question in that, unlike in the context

of dismissing for failure to prosecute, a trial court’s discretion

to deny a continuance is not limited. 

Nonetheless, as noted above, this was Appellants’ first motion

for a continuance, and the case had been on the bankruptcy court’s

docket for less than eight months. As set forth previously, the

court continued the first docket call apparently because of a

discovery dispute that ultimately was resolved in Appellants’

favor. Because Appellee’s conduct in responding to discovery

requests resulted in that continuance, such delay is attributable

to Appellee. Moreover, Appellants have argued that the denial of

a continuance prejudiced them. According to Appellants, as a

result of their November 8 subpoena, they later received documents

revealing that the proceeds of the loan had been transferred to the

Bank of Tulsa. On November 12, 2004, Appellants subpoenaed the

bank, and bank records received indicated that the loan proceeds

were not used to fund the Urban Woods project as promised. Because

Appellants assert they now are able to prove that Appellee used the

proceeds in violation of their agreement,9 they have alleged

sufficient prejudice as a result of the denial of their first

continuance request. Although we respect the bankruptcy court’s
17

right to control its busy trial docket, under these particular

circumstances, we conclude that the court abused its discretion in

denying Appellants’ motion for a continuance.

IV. CONCLUSION

For the foregoing reasons, we REVERSE the dismissal order and

REMAND for proceedings consistent with this opinion.