1 Mr. Hudson died shortly before this appeal was perfected,

and Beverly Woodson has been substituted in his place as

executrix of his estate. However, the relevant proceedings in

the district court occurred during Mr. Hudson's lifetime.

Therefore, although this appeal is now being pursued on behalf of

Mr. Hudson's estate, we refer to Mr. Hudson as the plaintiff.

1 United States Court of Appeals,

Fifth Circuit.

No. 94-60008

Summary Calendar.

Beverly WOODSON, as Executrix of the Estate of Hayes Hudson,

Deceased, Plaintiff-Appellant,

v.

SURGITEK, INC., Medical Engineering Corp., and Bristol-Myers

Squibb Co., Defendants-Appellees.

July 19, 1995.

Appeals from the United States District Court for the Southern

District of Texas.

Before SMITH, EMILIO M. GARZA and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

Plaintiff appeals the district court's judgment dismissing the

plaintiff's complaint with prejudice. The district court ordered

the dismissal under its inherent power as a sanction for delays

caused by the plaintiff. Finding that the district court did not

abuse its discretion, we affirm.

I.

Unfortunately, to review the sanction of dismissal ultimately

imposed by the district court, we must recount the long and

tortured course this litigation has taken. On December 4, 1991,

the plaintiff, Hayes Hudson, 1 through his attorney, Veronica Davis,2

filed suit in the 56th Judicial District Court of Galveston County,

Texas. Hudson alleged that the defendants, Surgitek, Inc., Medical

Engineering Corporation, and Bristol-Myers Squibb, were guilty of

negligence and gross negligence in the manufacturing and marketing

of penile prosthetic devices, two of which had been surgically

implanted into plaintiff's body and failed. The implantation of

these devices was done, apparently, to counteract impotence caused

by the advancement of plaintiff's severe diabetes.

On January 15, 1992, the defendants removed the case to

federal district court based on diversity of citizenship and it was

assigned to Judge Lake of the Southern District of Texas, Houston

Division. The case was ordered to proceed under the Cost and Delay

Reduction Plan of the Civil Justi ce Reform Act providing for

accelerated discovery. However, the record reflects a conspicuous

lack of activity until J une 3, 1992, when a joint

discovery/management plan was filed. All parties admitted that the

accelerated discovery had not occurred. The defendants' counsel

claimed inadvertence while the plaintiff's counsel, Veronica Davis,

claimed that her personal illness was the reason for noncompliance.

At a scheduling conference held June 10, 1992, Judge Lake

granted the plaintiff's unopposed motion to transf er venue, and

transferred this case to the Galveston Division of the same

district. At the same time, Judge Lake entered a docket control

order which, among other things, set December 18, 1992, as the

deadline for the completion of discovery. In that status, the case

was transferred to the docket of Judge Samuel B. Kent.3

After the transfer of venue, the district court entered an

order announcing that a scheduling conference would be held on

N ovember 5, 1992. Again, the record reflects a complete lack of

activity prior to the scheduling conference. A new docket control

order was entered, which provi ded, among other things, that

plaintiff would designate his expert witnesses no lat er than

December 18, 1992, that defendants w ould designate their expert

witnesses no later than January 29, 1993, that discovery would be

completed by March 5, 199 3, and that trial would begin March 22,

1993. Naturally, these events did not come to pass as scheduled.

On January 5, 1993, plaintiff filed a pleading entitled

"Request for a Jury Trial and Change of Trial Date," which alleged

that plaintiff had suffered medical complications "believed to be

the result of prosthetic fluid leaking into the body of the

plaintiff," which required additional medical confirmation. Since

the alleged leaking fluid was a new development, unknown at the

time of the filing of the original complaint, and was possibly

"critical to the instant case," plaintiff requested a continuance.

On the same day of the filing of the request for continuance, the

plaintiff filed a "Motion to Compel" challenging the defendants'

asserted objections to her interrogat ories and requests for

production. This pleading, filed by Ms. Davis, also included

allegations of defense counsel's bad faith; it was at this point,

according to the district court, that the proceedings began to

disintegrate.

The pl aintiff's motions were referred to a magistrate judge4

and were heard on January 25, 1993. Because of the plaintiff's

apparently poor medical condition, the magistrate postponed ruling

on the request for continuance until February 11, 1993. The

parties were instructed to initiate a telephone conference on that

date to u pdate the Court on the plaintiff's medical status. The

magistrate extended the defendants' expert witness designation

deadline until February 8, 1993.

The magistrate granted in part and denied in part plaintiff's

Motion to Compel and ordered answers to the interrogatories to be

made by February 8, 1993, conditioned upon plaintiff's execution of

a confidentiality agreement. Because of the nearing trial date,

the magistrate scheduled a March 2, 1993 hearing to address, as

necessary, any lingering discovery problems. Finally, because

plaintiff's jury request was not timely, and was opposed by the

defendants, the magistrate solicited a prompt motion from the

plaintiff pursuant to Federal Rule of Civil Procedure 39(b).

On January 26, 1993, the defendants filed an oppos ed motion

for leave to amend their original answer to respond more

specifically to the allegations of plai ntiff's complaint and to

clarify and expand the affirmative defenses they wished to assert.

The magistrate granted defendants' motion, and the amended answer

was filed that same day.

On February 5, 1993, the defendants filed a "Motion to Strike

Plaintiff's Late De signated Experts or, in the alternative, to

Compel Production of Experts' Reports." The motion also contained

a request for continuance. The motion alleged that plaintiff's5

expert witnesses were designated several da ys too late and,

regardless, that no expert reports had been supplied. The docket

control order specifically required that the designation of expert

wit nesses be accompanied by the contemporaneous tender of each

expert's preliminary written report. The magistrate judge

immediately attempted to schedule a hearing on the mo tion by

telephone. However, plaintiff's counsel Davis was unavailable at

that time and then failed to contact the Court, as ordered, by noon

of that day in order to coordinate the hearing. In fact, Davis

never contacted the magistrate by phone, electing instead to

forward a written response by facsimile to the clerk on February 8,

1993.

The plaintiff's written response stated that expert reports

had not been produced because none had been prepared, with the

exception of the implantation and explantation reports of Dr.

Michael W arren, the surgeon who performed those procedures.

Plaintiff's counsel argued that plaintiff should not be required to

produce a document that is not in existence. Ms. Davis apparently

offered no explanation for the failure to have such reports

prepared exce pt that because the plaintiff was still undergoing

treatment preparation of such reports would be premature.

The mag istrate excused the tardy designation, but required

written reports f rom plaintiff's identified experts, Drs. Warren

and Rogers, to be provided no later that February 16, 1993, with

the warning that failure to provide the reports would result in the

non-complying expert being stricken. The defendants' expert6

wit ness designation deadline was extended to March 5, 1993, and

discovery was extended to March 17, 1993. The defendants' request

f or a continuance was denied, but the due date for th e joint

pretrial order and the date of the pretrial conference were

extended. Both parties' requests for sanctions were denied.

On February 9, 1993, the plaintiff filed a "Motion for

Protective Order/Motion to Quash Taking of Depositions,"

complaining that the depositions of Drs. Warren and Rogers and

others were scheduled without reasonable notice. The motion also

alleged that the plaintiff, health permitting, intended to have Dr.

Warren remove the penile device still in plaintiff's body prior to

trial and that the defendants had withheld from production the

first penile device thereby frustra ting plaintiff's ability to

determine the cause of his medical problems. Plaintiff's counsel

contended that these two problems needed to be solved before the

doctors' depositions would be completely meaningful. The motion

also challenged the defendants' attempt to take Davis' deposition

on the issue of attorneys' fees.

The defendants filed a response to plaintiff's motions the

same day. The defendants did not object to the postponement of the

scheduled depositions, but al leged that Davis had rebuffed all

efforts by defense couns el to confer prior to the filing of the

motion regarding alternate mutually convenient depositions dates.

The defendants attached as an exhibit to their response a letter

from defense counsel to Ms. Davis dated February 8, confirming that

t he depositions were cancelled and in the process of being2 The defendants contended that the reports, even as

supplemented, failed to contain any opinion of Dr. Warren

concerning the ultimate issues in the case: whether the devices

were defectively designed or manufactured, whether the defendants

were negligent, whether the defendants failed to warn plaintiff

of any matters relating to the devices, or why the devices had

failed. In its order dismissing the plaintiff's claims, the

district court noted that it had reviewed the reports and agreed

with the defendants' assessment.

7 rescheduled.

The magistrate held a telephone conference on pla intiff's

motion to quash on February 10, 1993. The magistrate quashed the

doctors' depositions, subject to same being rescheduled prior to

March 5, 1993. The magistrate also quashed the deposition of Davis

in favor of submission of a detailed report of her attorney's fees

by March 12, 1993. In addition, the magistrate ordered the

defendants to produce the first prosthetic device.

On February 16, 1993, the plaintiff tendered an expert report

from Dr. Warren. The magistrate held a telephone conference the

same day on the defendants' claims that the tendered report was not

sufficient. The magistrate ordered that the report be supplemented

by the following day. The supplemental report was not provided,

however, until February 23, 1993. On February 23, the defendants'

moved to strike the plaintiff's designation of Dr. Warren as an

expert witness because of fatal deficiencies in his reports. 2 The

plaintiff's designation of Dr. Rogers as an expert had already been

st ricken because of plaintiff's failure to provide the required

expert witness report. Noting that an order striking Dr. Warren

would leave the plaintiff without any expert witness for trial, the

magistrate denied the defendants' motion.8

On February 25, 1993, the magistrate again held a telephone

conference on the issue of depositions. The defendants had noticed

the depositions of the plaintiff and Dr. Warren on February 3,

1993, to be taken Mar ch 2 and March 3, respectively. The

magistrate ordered that the plaintiff appear for his deposition on

March 2. This order apparently not being satisfactory to the

plaintiff, plaintiff's counsel, Ms. Davis, filed a "Mot ion for

Protective Order/Motion to Quash Taking of Depositions/Objections

to Order of Magistrate" on March 1, 1993. The defendants filed a

response the same day.

Davis all eged that on February 23 (twenty days after the

depositions were noticed) she discussed possible dates for the

depositions and advised counsel of a personal doctor's appointment

that she might not be able to reschedule. She also stated that she

was not sure that plaintiff's health would permit the taking of his

deposition although he had recent ly been discharged from the

hospital. Additionally, Davis complained that during the telephone

conference of February 25, defense counsel had misrepresented facts

and failed to permit her sufficient time to present her argument.

The defendants challenged all of Davis' allegations.

Thus, the m agistrate held another telephone conference on

March 1, 1993 on the matter of depositions. The magistrate ordered

plaintiff's deposition to commence on March 3, 1993 at 8:00 a.m.,

in Galveston, Texas, at a mutually acceptable site or at the

courthouse. The plaintiff's deposition was to recess to permit Dr.

Warren's deposition to be taken beginning at 1:00 p.m. the same9

day. The plaintiff's deposition was to continue thereafter until

completed. The magistrate cautioned that plaintiff's nonappearance

would be excused only if his treating physician would confirm by

affidavit that his travel to Galveston was life-threatening.

On the morning of March 3, thr ee attorneys representing the

various defendants appeared at the federal courthouse in Galveston

for plaintiff's deposition, havin g traveled from Dallas, San

Antonio, and New York, only to find that neither plaintiff nor

plaintiff's counsel was going to appear. Davis had notified the

magistrate's office that the plaintiff was not going to appear, but

gave no such notice to defense counsel. Davis had not provided an

affidavit from plaintiff's doctor. The magistrate, in the presence

of defense counsel, promptly initiated another telephone conference

with Davis. The magistrate ordered Davis to submit an affidavit

from plaintiff's doctor to verify that the plaintiff was unable to

attend his deposition for medical reasons. The magistrate

cautioned that failure to pro vide such an affidavit by the

following day would result in a recommendation that the plaintiff's

complaint be stricken. The deposition of Dr. Warren was ordered to

proceed in Davis' absence.

Shortly aft er the telephone conference, however, word was

received that Ms. Davis had contacted Dr. Warren and advised him

that he might be joined as a defendant in this litigation. Given

that Dr. Warren, plaintiff's only remaining expert witness, might

be joined as a party-def endant, the magistrate canceled his

deposi tion pending resolution of the proposed joinder. The3 Texas Revised Civil Statutes, Art. 4590i § 4.01.

4 The sanctions, if any, were to be imposed on Davis

personally, pursuant to 28 U.S.C. § 1927.

10 magistrate informed the parties that if he received the d octor's

affidavit, he would postpone the trial date and enter a stay of the

litigation to monitor the p laintiff's medical condition and to

allow for the sixty-day notice period required by the Texas Medical

Liability and Insurance Improvement Act. 3 The magistrate also gave

the defendants until March 15, 1993 to file a motion for sanctions

to recoup the c osts and attorneys' fees attendant to their

fruitless trip to Galveston. 4

Late in the day on March 3, the magistrate received an

affidavit from the plaintiff's doctor confirming plaintiff's

inability to appear for his deposition. The next day, the

magis trate entered an order staying the litigation until June 4,

1993, at which time a scheduling conference was to be conducted.

The order specifically advised that the six ty-day notice period

would not be considered tolled by the stay, and that the questions

of sanctions and settlement might be addressed during the stay.

At the time the stay was ordered, there remained pending

motions filed by the plaintiff regarding discovery and joinder, as

well as plaintiff's objections to the magistrate's order allowing

the defendants to amend their answer. On March 15, 1993,

defendants filed a motion for sanctions, seeking $2,617.40 as

costs, expenses, and fees attendant to the Galveston trip. On the

same day, although the magistrate had not imposed sanctions at that5 The memo was not intended to be a part of the file, but it

was placed on the correspondence side of the clerk's file and all

parties became aware of its existence. Because of the nature of

its ultimate disposition, the district court made all relevant

correspondence a part of the record. The memo read as follows:

DATE: April 15, 1993

TO: Louise Johnson

FROM: John R. Froeschner

RE: Hudson v. Surgitek, C.A. No. G-92-284

In early March I entered an Order staying any

proceedings in this cause by virtue of the Plaintiff's

poor health; by doctor's affidavit submitted to me he

was found physically unable to appear for deposition or

to appear for trial. My observations, for what they

are worth, lead me to believe that Plaintiff's counsel

is not financially able to pursue this claim against

the Defendant and, as a result, the case, which appears

to have substantial merit, has deteriorated to the

point where a disservice might be suffered by the

Plaintiff when the stay is lifted. I also believe that

the Defendants would very much like to settle this

matter but have not been able to get Plaintiff's

counsel to engage in any reasonable settlement

discussions.

I believe that if the cause were set for a

settlement conference sometime in May or early June (I

have a scheduling conference set for June 4 at 10:00

a.m.) that Judge Kent could get the matter settled

which is probably in the best interest of everyone

11 time, the plaintiff filed "Plaintiff's Objections to Magistrate's

Order for Sanctions and Staying Further Litigation," which rehashed

Davis' complaints about defense counsel and asked for the

imposition of sanctions.

On April 15, 1993, the magistrate sent a memorandum to the

district court coordinator suggesting that a settlement conference

might be in order because of the inc redible level to which this

litigation had deteriorated. 5 Thus, at the magistrate's urging,involved in this litigation.

My stay order specifically notified the parties

that I will deal with possible sanctions against

Plaintiff's counsel for her failure to notify defense

counsel not to appear in Galveston for the

Court-ordered deposition of her client and further that

the District Court might schedule a settlement

conference during the period of the stay. The sanction

request is ripe for consideration, but if Judge Kent

elects to have a settlement conference, I would prefer

to leave that matter unresolved until the completion of

the settlement conference. I would be happy to do the

settlement conference but I don't think I would be able

to get the matter resolved; I think Judge Kent can.

I you have any questions, please call, and please

keep me advised.

6 The settlement negotiations held June 3 were conducted off

the record.

12 the district court scheduled a settlement conference for June 3,

1993. The magistrate rescheduled the post-stay scheduling

conference for June 3, 1993, commencing immediately after the

settlement conference, if necessary.

On June 3, 1993, the attorneys attended the settlement

conference and through admittedly aggressive negotiations, with the

district judge participating, agreed to settle the ca se for

$85,000.00

. 6 The next day, the district court entered an order

administratively closing the case without prejudice to any party to

re-open the matter if the settlem ent could not be perfected.

Pending final settlement, both parties' requests for sanctions were

deferred. As it turned out, however, this matter was far from

over.

On July 2, 1993, the defendants filed a motion to enforce the

settlement agreement, alleging that the plaintiff , through his13

counsel Davis, refused to settle any claim he might have relating

to silicone poisoning unless the defendants would pay $210,000.00.

The defendants sought specific performance of the set tlement

agreement and attorneys' fees attendant to the motion. On the same

day, the district court entered an order granting the defendants'

motion to enforce the settlement.

On July 6, 1993, Davis filed the Plaintiff's "Motion to

Enforce Se ttlement Agreement as Verbalized or Motion to Re-Open

Case," alleging that she had expressly reserved the right to pursue

the silicone cause of action. She asked the district court to

force the defendants to pay the $85,000.00 while preserving the

plaintiff's right to pu rsue the silicone claim or, in the

alt ernative, to re-open the case. The district court entered

another order, this time on plaintiff's motion, to enforce the

settlement, and ordering execution of a "full and final release

...

releasing all claims Plaintiff has arising from his allegedly

failed penile implant."

On July 23, 1993, the defendants filed their "First Amended

Motion to Enforce Settlement Agre ement" because, despite the

district court's orders of July 2 and July 6, Ms. Davis still

refused to execute any release that failed to preserve plaintiff's

right to pursue a future cause of action for silicone poisoning.

This motion prompted the July 26 filing of "Plaintiff's Second

Motion to Enforce Settlement Agreement as Verbalized or Motion to

Re-Open Case," which again argued that the silicone poisoning claim

had been specifically exempted from the settlement. The plaintiff7 This motion was accompanied by a letter to the district

court's coordinator dated August 2, 1993. Alleging, initially,

the defendant's underhanded tactics in procuring the setting of

the August 21, 1993 hearing date, the body of the letter

concluded

[t]he date of August 21, 1993, is wholly unacceptable.

My client is an extremely ill man. This is one of the

reasons he chose to enter into settlement negotiations.

His health is indeed to (sic) precarious to wait that

long. If Judge Kent can not (sic) entertain the

Motions before this Court, I am requesting that he

appoint a Visiting Judge or transfer this cause to

another area of venue, preferably Houston or Dallas so

that this matter might be ruled on immediately.

14 seized upon the language in the district court's July 2 order that

the settlement addressed only claims "raised in this law suit" and

its July 6 order that plaintiff was settling "all claims Plaintiff

has, " which Davis argued did not include the long-ago disclosed but

not yet affirmatively pleaded cause of action f or silicone

poisoning. Davis also sought sanctions from defense counsel in the

amount of $100,000.00 and attorneys' fees of $2,000.00 for the

defendants' recalcitrant behavior in refusing to honor the

settlement and the district court's orders enforcing same.

The district court set a hearing for August 21, 1993 to

resolve this dispute. Obviously, however, the hearing date

scheduled was not soon enough to satisfy Ms. Davis. On August 4,

1993, she filed "Plaintiff's Second Motion for Sanctions/Motion to

Enter Orders for Settlement and Release." 7 The motion, insofar as

it dealt with san ctions, complained that the defendants'

"subterfuge, recalcitrance," and dishonesty in the discovery

ordered by the Magistrate Judge on January 25, 1993, had denied

plaintiff proper discovery and inflamed the district court, in some8 This hearing was recorded and transcribed in its entirety,

and is part of the record on appeal.

9 However, in its opinion of January 5, 1994, the district

court said "There is no doubt in this Court's mind that the

prospect of a silicone poisoning cause of action surviving a

settlement agreement was never discussed at the settlement

conference on June 3, 1993." Dist.Ct.Op. at 25 (Civ. No. G-92-

284, January 5, 1994).

15 unexplained way, so as to "devalue Plaintiff's case" to a value of

$85,000.00. Davis sought an award of costs and attorneys' fees and

an order striking the defendants' pleadings.

On August 13, 1993, the defendants responded by reminding the

district court that the plaintiff had only one remaining expert,

Dr. Warren, who not only was unable to give a n opinion as to the

defendants' liability on any ultimate issue in the case, but also,

if the case were re-opened, was going to be sued by the plaintiff,

presumably for some form of malpractice. The defendants argued

that des pite the "summary judgment" posture of the case, they

settled the matter in its entirety for $85,000.00. Any

post-settlement attempt to "carve out" the silicone poisoning cause

of action, they argued, was unfounded and defied common sense. The

defendants to ok issue with Ms. Davis' harangue and asked the

district court to order plaintiff to execute a release of all

claims, including any cause of action for silicone poisoning.

On August 20, 1993, the district court heard the motions

relating to enforcement of the settlement. 8 It became apparent at

the hearing, and the district court specifically found, that there

had not been a meeting of the minds regarding the sco pe of the

settlement negotiated June 3. 9 In an effort to salvage the10 Judge Kent indicated at the hearing that he would grant a

motion for recusal if this matter were to proceed to trial

because of the intimate role the court had played in the

settlement negotiations and evaluation of plaintiff's case.

16 settlement, the district court, with the agreement of all parties,

ordered that the plaintiff undergo medical testing to determine the

presence, if any, of silicone in his body. The parties agreed, on

the record, that if the testing were negative the settlement would

be enforc ed and the silicone poisoning cause of action released.

On the other hand, if the test results were positive, the

settlement would be set aside, the case would be reinstated, and

the plaintiff would be permitted to amend his complaint and proceed

to trial before a different district judge. 10

Still hoping to facilitat e settlement in reasonably prompt

fashion, the district court asked the parties to accomplish the

agree d upon medical testing "cooperatively and pleasantly." The

specimen retrieval was to take place within thirty days, and the

testing was to be completed within thirty days of the sample

retrieval. The parties were asked to agree, if possible, on a

pathologist to perfor m the testing or, absent such agreement, to

submit two names each to the district court from which the court

would choose. The record clearly indicates that the parties agreed

to these terms voluntarily.

The district court noted the "vituperative pleadings that

[had] been rifling back and forth," and asked the parties to

initiate a conference call regarding any problems that might arise,

rather than filing any pleadings and attacking one another therein.11 The district court later learned that Dr. Carl Davis,

plaintiff's attending surgeon, was not informed of the court's

order for specimen retrieval until October 18, 1993.

17 Des pite the district court's request, on August 31, 1993, Davis

sent a letter to the district court asking the court, once again,

to enforce the plaintiff's version of the settlement agreement

reserving to plaintiff and/or his heirs the right to pursue a

subsequent action for silicone poisoning and/or wrongful death in

connection therewith. The letter also claimed a fruitless attempt

to locate a pathologist to perform the necessary testing.

According to the letter, the court's proposal was unworkable

because the necessary tissue retrieval would require extensive

surgical procedures prohibited by plaintiff's current medical

conditio n. 11 Davis' letter also made another attempt to convince

the district court that plaintiff had "been forced to be subjected

to this position due to the recalcitrance and/or refusal of the

Defendants in entering into the settlement as agreed on the date of

June 03, 1993."

Naturally, Davis' letter prompted a response from the

defendants. By letter dated September 3, 1993, the defendants

confirmed that the proper testing would require a tissue biopsy but

took issue with the claimed inability to locate a path ologist

willing to perform the procedure. The defendants asserted that a

Dr. Williams, the Chief of Pathology at St. Joseph's Hospital in

Houston, Texas, was willing to perform the testing and that they

had left several unanswered messages at Davis' office in an attempt

to confer with her in this regard.18

A written order memorializing the contingent settlement

agreement reached at the August 20 hearing was signed September 10

and entered September 13, 1993. However, still undaunted by the

district court's order requiring negative results of the silicone

testing as a condition to enforcing the $85,000.00 settlement, and

the admonishment against filing further inter im pleadings, Davis

filed a "Motion for Contempt and Brief in Support Thereof and

Motion for Sanctions" on September 23, 1993. Davis again argued

that she had expressly reserved the right to pursue the silicone

poisoning cause of action, and condemned the defendants' "wrongful"

refusal to honor the $85,000.00 "partial" settlement. Plaintiff's

counsel went so far as to claim that there were no disputed facts

regarding the settlement agreement," and asked the district court

to find the defendants and their counsel to be in contempt, to

assess damages against the defendants and their counsel in the

amount of $250,000.00 , and to award plaintiff attorney's fees in

the amount of $14,553.00. Contemporaneously, Davis also filed a

"Motion to Lift Stay of Discovery and Motion to Compel Discovery,"

re-urging complaints previously made re garding discovery. This

motion, while briefly reiterating allegations of defense counsel's

dilatory tactics, also suggested that the "clear failure" of the

district court to correctly apply the law of discovery was an abuse

of discretion subject to mandamus.

On September 24, 1993, in response to the motions filed by

Davis the day before, the district court set a status conference

for October 5, 1993, and sent written notice of the conference to12 Dist.Ct.Op. at 24.

19

all parties. The district court's attempts to set these

proceedings back on track obviously did not meet with plaintiff's

approval, as Davis immediately filed a petition for writ of

mandamus with this Court. After reciting a litany of "abuses" she

and the plaintiff had been subjected to by the district court and

magistrate judge, Davis asked this Court to enforce the $85,000.00

partial settlemen t and to vacate all orders relating to silicone

testing. In the alternative, Davis asked this Court to mandate

that the district court lift the stay of discovery and transfer the

matter to Houston because of the extreme prejudice shown by the

judges in the Galveston division. Davis also asked that the

litigation be stayed pending thi s Court's ruling on plaintiff's

petition.

On September 30, 1993, Davis sent the district court a copy of

the petition, advised the court that she was seeking a stay of the

litigation, and announced that she would thus not appear at the

status conference on October 5, 1993. Upon learning of plaintiff's

petition to this Court, and to allow time for proper consideration,

the district court canceled the conference scheduled for October 5.

On October 5, this Court denied plaintiff's petition for writ

of mandamus. Upon receipt of this Court's ruling, the district

court rescheduled the status conference for November 2, 1993, and

sent notice to co unsel. It was clear to the district court that

"the case needed to be re-opened and a docket control order

established to provide for its disposition." 12 Unfortunately, the13 Ms. Davis' letter to the clerk of this Court dated

November 1, 1993, went, in relevant part, as follows:

On or about October 22, 1993, I filed a Suggestion for

Rehearing in the above referenced cause. In so doing,

I requested a stay of all matters pending in the United

States District Court pending a ruling on the

Suggestion for Rehearing. A Scheduling conference is

scheduled for tomorrow, November 02, 1993. Of course,

the scheduling of the hearing conference indicates that

the trial judge will not uphold the orders entered in

connection with the settlement which is the object of

the Writ of Mandamus and the Request for Rehearing.

Since the Court of Appeals has not yet made a ruling on

the matters I have filed which are pending before it, I

am requesting the granting of the stay of litigation in

this matter until a ruling from the Court of Appeals

has been obtained.

I regret the lateness with which this is being

forwarded to you. Unfortunately, I spent the morning

at the doctor's office being examined, discussing test

results and being prepared for preoperative procedures.

Please be advised that I will be in Houston on Tuesday,

November 02, 1993, being subjected to preoperative

procedures and will be having surgery on November 03,

1993. You may reach me at (409) 345-2092. A recorder

will be on if I am not available to answer the

telephone.

20 plaintiff seemed determined not to give the district court any such

opportunity.

Not bei ng satisfied with this Court's initial determination

that an extraordinary writ was unwarranted, Davis sought a

rehearing en banc of plaintiff's petition. On November 1, 1993,

Davis again asked this Court for a stay of proceedings in the

district court pending a ruling on plaintiff's suggestion for

rehearing en banc. Davis notified the district court of her

filings by facsimile transmission on the same day. 13

This Court denied plaintiff's motion to stay proceedings on14 The district court noted that it was not "the first time

Davis' alleged personal medical problems had impeded the progress

of this case; it had kept her from engaging in the accelerated

discovery during the five months immediately following the

removal of this case to federal court and it had caused problems

scheduling depositions." Dist.Ct.Op. at 24.

15 Dist.Ct.Op. at 25.

21 the same day, November 1. Relying on her suggestion for rehearing

en banc, a personal medical appointme nt, and an unresolved

telephone requ est with the district clerk's office, plaintiff's

counsel failed to appear at the status conference on November 2,

1993. Ms. Davis had not, at that time, identified the nature of

her alleged medical appointment or explained why it could not be

rescheduled. Given the history of delays and scheduling problems

in this litigation, 14 the district court quite understandably viewed

this excuse with skepticism. Under the circumstances, the district

court viewed Davis' failure to appear as "yet another obstruction

to the p rogress of this plagued and hostile litigation." 1 5 Thus,

in th e exercise of its inherent powers to control the conduct of

lawyers practicing before it, the district court promptly dismissed

the plaintiff's cause of action with prejudice.

On November 23, 1993, the plaintiff filed a "Motion for

Rehearing/Motion for New Trial/Motion to Recuse." Finally, with

this motion, Davis submitted proof of her medical treatment on

November 2. Davis contended, however, that she did not request a

continuance of the status conference because (1) there was no

action before the district court at the time because this Court had

not yet ruled on her suggestion for rehearing of plai ntiff's16 We note that Judge Kent had already indicated on the

record his willingness, if this matter were reinstated, to recuse

himself because of his intimate role in settlement negotiations.

Ms. Davis' claims of bias and prejudice were thus certainly

gratuitous.

22 petition for writ of mandamus, and (2) counsel was to tally

prohibited from filing any further pleadings in this matter by

order of the district court. Davis also argued that the district

court had failed to respond to her telephone inquiries of the

clerk's office regarding whether she was expected to appear at the

status conference. In addition, Davis argued that the actions of

Judge Kent were the result of bias a nd prejudice, and thus that

Judge Kent should recuse himself. 16

Also on November 24, the district court received a copy of a

letter Ms. Davis sent to one of the defendants' attorneys, which

complained of a "comp lete subversion of the judicial process."

Stating that she found defense c ounsel's actions to be "equally

culpable as the Court['s]," she accused her adversaries of serious

acts of misconduct, and enclosed a draft of a letter to the State

Bar of Texas Disciplinary Committee recommending their disbarment.

The letter leveled numerous allegations of misconduct, including an

allegation that some special relationship existed between defense

counsel and the district court. On the same day, the district

court received a letter from Dr. Carl Davis, plaintiff's attending

surgeon, which indicated that he had not been informed of the

court's order for specimen retrieval until October 18, 1993. By

tragic coincidence, November 24 was also the day that the

plaintiff, Hayes Hudson, died at Methodist Hospital in Houston,23

Texas.

On January 4, 1994, the district court denied pla intiff's

motions for rehearing and new trial, issued an opinion and order,

and entered final judgment dismissing plaintiff's cause of action

with prejudice. This appeal followed.

II.

The appellant, the personal representative of Hudson's Estate,

argues that t he district court abused its discretion when it

dismissed Hudson's cause of action under its inherent authority.

The appellant also argues that the district court erred by

dismissing Hudson's claims while a Suggestion for Rehearing En Banc

on plaintiff's Petition for Writ of Mandamus was pending because if

the petition had been granted the claims before the district court

would have been settled. Appellant contends that the petition and

suggestion for rehearing divested the district court of

jurisdiction and thus it was without power to enter an order of

dismissal. Finally, appellant argues that the district court erred

in refusing to enforce the plaintiff's version of the purported

settlement.

The Defendants/Appellees contend that the dismissal with

prejudice was within the district court's inherent power and was

appropriate under the ci rcumstances. The Defendants also argue

that the district court was not without jurisdiction to dismiss

plaintiff's claims, and that the district court's finding that

there was no meeting of the minds as a result of the June 3

settlement conference was not clearly erroneous. We agree.17 Griggs v. Provident Consumer Discount Co., 459 U.S. 56,

58, 103 S.Ct. 400, 401-02, 74 L.Ed.2d 225 (1982).

24 III.

A. JURISDICTION

Appellant's contention that the district court was deprived

of jurisdiction by the petition for writ of mandamus and request

for stay is without merit. As a general rule, a perfected appeal

from a final judgment or reviewable order of a district court does

vest jurisdiction in the appellate court and terminat es the

jurisdiction of the district court. 17 This rule does not apply to

petitions for writ of mandamus.

Mandamus petitions request an extraordinary remedy that is

only appropriate in exceptional circumstances. Moreover, because

such requests are only granted in exceptional circumstances, the

Federal Rules of Civil Procedure do not provide for an automatic

stay of district court proceedings while a petition for writ of

mandamus is pending. If the district court or the court of appeals

finds it appropriate to stay proceedings while a petition for

mandamus relief is pending, such a st ay may be granted in the

court's discretion. However, absent such a stay, the jurisdiction

of the district court is not interrupted. In the present case, no

stay was granted. Thus, the district court had jurisdiction and

retained the authority to enter the order of dismissal.

B. REFUSAL TO ENFORCE SETTLEMENT

The appellant's contention that the district court erred in

refusing to enforce the plaintiff's version of the settlement25

pursuant to i ts July 2 and July 6, 1993 orders is also without

merit. It is apparent from the record that following the June 3,

1993 settlement conference, the district court believ ed that

agreement had been reached to settle all claims arising from the

allegedly defective penile implants. Despite the appellant's

creative attempts to construe the court's orders to the contrary,

it is clear t hat it was with this intention that the district

court's orders of July 2 and July 6 were entered. In its opinion,

the district court stated unequivocally that it did not recall the

express reservation o f the silicone poisoning claim plaintiff's

counsel claims to have made on June 3. It is clear, however, that

the court accepted plaintiff's counsel's statements regarding her

understanding of the June 3 settlement and found that there had not

been a meeting of the minds on that date. Under the circumstances,

we cannot say that this finding is clearly erroneous.

In any event, the July 2 and July 6 orders were superseded by

the district court's order following the August 20, 1993 hearing.

This order reflected the agreement of all parties, through counsel,

that settlement of all of plaintiff's claims would be enforced only

if testing for silicone poisoning returned negative results. The

only alternative provided in the order was re-opening the case with

an opportunity for plaintiff to amend his complaint. There was no

provision for enforcement of a partial settlement like that desired

by the appellant. Thus, appellant's contention that a partial

settlement should now be enforced by this court is without basis.

C. DISMISSAL UNDER THE COURT'S INHERENT POWER18 Link v. Wabash R. Co., 370 U.S. 626, 630, 82 S.Ct. 1386,

1389, 8 L.Ed.2d 734 (1962).

19 Natural Gas Pipeline Co. of America v. Energy Gathering,

Inc., 2 F.3d 1397, 1406 (5th Cir.1993), cert. denied, --- U.S. --

--, 114 S.Ct. 882, 127 L.Ed.2d 77 (1994).

20 In re United Markets International, Inc., 24 F.3d 650, 654

(5th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 356, 130

L.Ed.2d 310 (1994).

21 Chambers v. NASCO, Inc., 501 U.S. 32, 44, 111 S.Ct. 2123,

2132, 115 L.Ed.2d 27 (1991); Natural Gas Pipeline, 2 F.3d at

1406 (quoting Roadway Express, Inc. v. Piper, 447 U.S. 752, 764,

100 S.Ct. 2455, 2463, 65 L.Ed.2d 488 (1980)).

26 Following plainti f f's counsel's failure to appear at the

status conference on November 2, 1993, the district court dismissed

the plaintiff's claims under its inherent power to control the

conduct of attorneys practicing before it. Based primarily on

plaintiff's continued and extraordinary e fforts to enforce the

purported settlement of June 3, and plaintiff's apparent refusal to

comply with the contingent settlement agreed to on August 20, the

district cour t found that the clear record of delay and

contumacious conduct justified the dismissal of the complaint.

The federal courts are vested with the inherent power "to

manage their own affairs so as to achieve the orderly and

expeditious disposition of cases ." 18 This power is necessarily

incident to the judicial power granted under Article III of the

Constitution. 19 This includes the power of the court to control its

docket by dismissing a case as a sanction for a party's failure to

obey court orders. 20 However, when these inherent powers are

invoked, they must be exercised with "restraint and discretion." 21

Dismissing a case with prejudice is a harsh sanction, but we will22 Chambers, 501 U.S. at 54-56, 111 S.Ct. at 2138; United

Markets, 24 F.3d at 654.

23 United Markets, 24 F.3d at 654 (quoting Pressey v.

Patterson, 898 F.2d 1018, 1021 (5th Cir.1990)). The district

court implicitly found "a clear record of delay or contumacious

conduct" that justified dismissal. In a long line of cases, this

Court has held that the sanction of dismissal should only be

imposed in the face of a "clear record of delay or contumacious

conduct" if "the court first finds that a lesser sanction would

not have served the interests of justice." Securities and

Exchange Comm'n v. First Houston Capital Resources Fund, Inc.,

979 F.2d 380, 382 (5th Cir.1992); Berry v. CIGNA/RSI-CIGNA, 975

F.2d 1188, 1191 (5th Cir.1992); McNeal v. Papasan, 842 F.2d 787,

790 (5th Cir.1988); Price v. McGlathery, 792 F.2d 472, 474 (5th

Cir.1986); Callip v. Harris County Child Welfare Dept., 757 F.2d

1513, 1519 (5th Cir.1985); Rogers v. Kroger Co., 669 F.2d 317,

320 (5th Cir.1982); Veazey v. Young's Yacht Sale and Service,

Inc., 644 F.2d 475, 477 (5th Cir. Unit A 1981). However, each of

these cases involved a review of sanctions imposed under the

Federal Rules of Civil Procedure.

By contrast, some of this Court's opinions involving

review of sanctions imposed under the court's inherent power

have held the sanction of dismissal should be limited to

instances of "bad faith or willful abuse of the judicial

process." In re United Markets International, Inc., 24 F.3d

650, 654 (5th Cir.1994); Pressey v. Patterson, 898 F.2d

1018, 1021 (5th Cir.1990). Although this Court has never

expressly addressed the distinction between these two

standards, it has at least stated that "[t]he trial court's

discretion to impose sanctions under its inherent power is

even more limited." Pressey, 898 F.2d at 1021.

Since the appellant does not argue that the district

court applied the wrong standard, we will not address the

substantive difference between these distinct lines of

authority. Instead, we find that any error in this regard

would be harmless in the present case since the more

stringent standard has been met.

27 uphold an involuntary dismissal unless the district court has

abused its discret ion. 2 2 This Court has held that such sanctions

should be confined to instances of "bad faith or willful abuse of

the judicial process." We hold that plaintiff's actions meet this

standard. 2328

Although the district court recounted the entire history of

this hostile litigation in its order of dismissal, we read the

district court's opinion as relying primarily on plai ntiff's

counsel's conduct following the hearing held August 20, 1993. As

discussed above, all part ies agreed at this hearing that absent

negative results of tests for silicone poisoning the settlement

agreement would not be enforced. Yet, despite Ms. Davis' express

agreement to the testing conditions, she filed another request to

enforce a partial settlement.

Davis' letter to the court of August 31 claimed an inability

to find a pathologist to perform the necessary tests and that the

tests were prohibited by the plaintiff's medical condition. The

record reflects, however, that defense co unsel located qualified

pathologists and that plaintiff's counsel was unavailable to

discuss an agreeable selection. Furthermore, the record reflects

that Davis did not inform plaintiff's attending surgeon of the

court's order for testing until October 18, 1993.

The district court reaffirmed the contingent settlement

a greement by order entered September 13, 1993. Yet, plaintiff's

counsel filed a motion for contempt and sanctions on September 23,

1993, claiming, without any basis, that the defendants had

wrongfully refused to enter a partial settlem ent pursuant to the

"agreement" reached at the June 3 settlement conference. Moreover,

when the district court attempted to put this litigation back on

track by scheduling a status conference, plaintiff's counsel made

the same frivolous arguments regarding a partial settlement to this24 The Supreme Court has held in a similar case that "failure

to appear at a pretrial conference may, in the context of other

evidence of delay, be considered by a District Court as

justifying a dismissal with prejudice." Link, 370 U.S. at 635,

82 S.Ct. at 1391.

29 Court by Petition for Writ of Mandamus. Absent any legal basis for

such extraordinary relief in this case, the mandamus petition seems

to have been intended merely to create additional procedural delay.

These facts fully support a finding that the plaintiff was

willfully and in bad faith refusing to comply with the court's

August 20 and September 13, 1993 orders.

The appellant attempts to characterize the district c ourt's

dismissal as a sanction under Federal Rule of Civil Procedure 16

for failure of plaintiff's counsel to appear for the status

conference on November 2, 1993. The district court's opinion is

not so limited, however, and we need not decide whether that

failure to appear alone would support the dismissal. The district

court relied on the entire history of the litigation, including the

previous delays occasioned by the plaintiff. 24

We recognize that "[w]hen parties or their attorneys engage in

bad faith conduct, a court should ordinarily rely on the Federal

Rules as the basis for sanctions." N atural Gas Pipeline, 2 F.3d at

1410 (citing Chambers, 501 U.S. at 50-52, 111 S.Ct. at 2136).

Indeed, it app ears in this case that some of the conduct of

plaintiff's counsel arguably provided the basis for sanctions under

Rules 11, 1 6, and 37. However, given the entirety of the

circumstances and the wide range of willful conduct observed by the

district court, it was not error for the court to resort solely to25 Chambers, 501 U.S. at 51, 111 S.Ct. at 2136.

26 Callip, 757 F.2d at 1519.

27 Link, 370 U.S. at 632-34, 82 S.Ct. at 1390 ("Petitioner

voluntarily chose this attorney as his representative in the

action, and he cannot now avoid the consequences of the acts or

omissions of this freely selected agent."); Callip, 757 F.2d at

1522.

28 Link, 370 S.Ct. at 634 n. 10, 82 S.Ct. at 1390 n. 10.

30 its inherent power. In cases like this, "requiring a court first

to apply rules and statutes c ontaining sanctioning provisions to

discrete occurrences before invoking inherent power to address

remaining instances of sanctionable conduct would s erve only to

foster extens ive and needless satellite litigation, which is

contrary to the aim of the rules themselves." 25

In addition, we recognize that dismissal with prejudice "is an

extreme sa nction that deprives a litigant of the opportunity to

pursue his claim." 26 Thus, we do not easily affirm a sanction of

dismissal in a case, such as this one, where the sanctionable

conduct was attributable to couns el rather than to the plaintiff

directly. There is no question, however, that a party is bound by

the acts of his attorney. 27 "[I]f an attorney's conduct falls

substantially below what is reasonable under the circumstances, the

client's remedy is against the attorney in a suit for malpractice.

But keeping this suit alive merely because plaintiff should not be

penalized for the omissions of his own attorney would be visiting

the sins of plaintiff's lawyer upon the defendant[s]. " 28

Considering the numerous obstacles and delays encountered in

this case, we commend the district court for its patience. Under31

the circumstances, we cannot say that the district court abused its

discretion in dismissing plaintiff's claims with prejudice.

IV.

For the foregoing reasons, the judgment of the district court

dismissing plaintiff's claims with prejudice is AFFIRMED.

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