* Pursuant to 5 TH C IR . R. 47.5, the Court has determ ined th at this opinio n should not be published and is not precedent except under the limit ed circumstances set fo rth in 5 TH C IR . R. 47.5.4. United States Court of Appeals

Fifth Circuit 

## FILED March 5, 2007 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT No. 06-41133 Summary Calendar

RICHARD L. DOCKUM, Pl aint iff-Appellant,

versus WAL-MART STORES TEXAS, LP, Defendant-Appellee. Appeal from the United States District Court fo r the Southern District of Texas (No. 1:06-CV-025)

Before DeMOSS, STEWART, and PRADO, Circuit Judges. PER CURIAM: * Richard Dockum appeals from the district court’s denial of his mo tion fo r a default judgment under FED . R. C IV . P. 16(f). We affirm.2 I. FACTUAL AND PROCEDURAL BACKGROUND Dockum filed suit against Wal-Mart fo r injuries he sustained from a slip and fall in a Wal-Mart in Brownsville, Texas. The district court set a deadline of April 24, 2006, for the parties to submit
a jo int discovery case management plan under FED . R. C IV . P. 26 to the court. Dockum and defense counsel arranged to discuss the plan over the phone on April 18, 2006. Dockum alleges t hat he wanted to com

plete the plan earlier but th at defense counsel refused to set an earlier time. Dockum also alleges th at during the conversation, defense counsel was unprepared to discuss the plan and told Dockum th at it wo uld be “a cold day in hell” before Dockum received $500,000.00, the amount Dockum requested to settle the suit. Additionally, Dockum states that the plan was not submitted to him until May 2, 2006, aft er the deadline, a result th at he believes resulted from defense counsel’s purposeful malingering. For his part, defense counsel disputes each of these allegations. He states that he walked the pro se plaint iff th

rough each of the elements of the Rule 26 plan and th at he did not remember using the phrase “cold day in hell.” Defense counsel also argues that when he faxed the completed plan to Dockum on May 2, Dockum refused to sign it , stating only th at he did not like the wording. Dockum filed a Rule 16(f) mo tion on May 5, 2006, asking fo r a default judgment to be entered against th e defendant. Wal-Mart then filed a similar mo tion on May 12, 2006, asking for dismissal of the case because Dockum refused to sign the discovery plan. The district court judge denied both mo tions. The suit was lat er dismissed because it was filed aft er the prescriptive period had expired. Dockum appeals the denial of his Rule 16(f) motion.3 II. DISCUSSION We review the district court’s judgment regarding san cti ons based on pre-tri al o rders for abuse of discretion. Culwell v. City of Fort Worth , 468 F.3d 868, 870 (5th Cir. 2006). When the extreme rem

edy of dismi ssal is sought under Rule 16(f), the party seeking such relief must demonstrate “a clear record of delay or contumacious conduct by the [oppos ing party ],” B ann v. Ingram Micro, Inc. , 108 F.3d 625, 627 (5th Cir. 1997), or th at no lesser order would “permi t the court to fulfill it s obligation to administ er justice expeditiously,” Silas v. Sears, Roebuck & Co. , 586 F.2d 382, 386 (5th Cir. 1978). The district court, after considering the motions and arguments of the parties, fo und th at the allegations of Dockum and defen se counsel were i rreconcilable, such that neit her of them had demonstrated a clear record of delay or any aggravating factor justifying dismissal
or default judgment. The district court did not abuse its discretion in denying Dockum’s Rule 16(f)
mo tion because he failed to justify the imposition of a default judgment against Wal-Mart. III. CONCLUSION For the foregoing reasons, we affirm the judgment of the district court.