## IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________



### m 01-20914

Summary Calendar

_______________



### N ELDA 

### H OLDEN 

### ; ET AL



### .,

Plaintiffs,



### N ELDA 

### H OLDEN



### ,

Plaintiff-Appellant,

VERSUS



### S IMPSON 

### P APER 

### C OMPANY 

### ; ET AL



### .,

Defendants,



### S IMPSON 

### P ASADENA 

### P APER 

### C OMPANY 

### ; P ASADENA 

### P APER 

### C OMPANY



### , L.P.,

Defendants-Appellees,

_________________________

Appeal from the United States District Court

for the Southern District of Texas



### m H-00-CV-1363



### m H-00-CV-2100

_________________________ September 18, 20022

Before J ONES , S MITH , and

E MILIO M. G ARZA , Circuit Judges.

J ERRY E. S MITH , Circuit Judge: *

Nelda Ho lden sued Simpson Paper Company (“Simpson”) for unlawful dis charge. In

this litigation, she repeatedly refused to comply with the district court’s orders to pay costs

assessed against her in a 1995 lawsuit against

Simpson. After Holden disobeyed its second

order to compel costs, the court dismissed her

new s uit with prejudice for failure to comply

with orders, enjoined her from filing any other

suits in the Southern District of Texas without

court approval, and fined h er an additional

$1,000. Concluding that Holden’s deliberate

disobedience of mult iple court orders brought

these sanctions within the district court’s discretion, we affirm.

I.

In October 1995, Holden sued Simpson for

unlawful discrimination. H olden v. Simpson

Pasadena Paper Co.

, No. H-95-4989. In May

1997, the court granted Simpson’s motion for

summary judgment and entered a final order of

dismissal. The next month, the court assessed

$3,993.98 in costs, which Holden did not pay.

I n April 2000, Holden brought the insta n t

suit against Simpson, Pasadena Paper Company, and various other ent i ties. In August

2000, Simpson informed the court of the outstanding costs, whereupon the court issued an

order compelling Holden to pay Simpson “the

$3,993.98 taxed against her in H-95-4989.”

Simpson mailed three letters to Holden’s trial counsel, Harold Dutton, to attempt recovery

of the costs. By the end of 2000, however,

neither Holden nor her attorney had contacted

Simpson about paying the d e bt or otherwise

complying with the order.

In January 2001, Simpso n filed a motion

not ifying the district court of Holden’s noncompliance, explaining its attem pts to contact

her attorney

. That month, the court issued its

second order directing Holden to negotiate a

payment plan with Simpson for the costs imposed in the first suit. When Holden explained

that she could not afford to pay, Simpson

offered to permit her to pay the debt in

monthly, interest-free installments of $114 and

prepared a promissory note to that ef fect.

Holden made only two payments of $114 and

refused to sign the promissory note.

In July 2001, Simpson filed another notice

of Holden’s non-compliance and suggested the

imposition of further sanctions, whereupon the

court ordered her to appear to explain her

noncompliance. The court promptly held a

hearing and concluded that Holden had no reasonable basis for r efusing to pay. Although

Holden explained she h ad been unable to obtain work, she also stated that she had used a

lump sum severance payment to pay off the

note on her house, and the court concl uded

she had not looked for work diligently.

The court entered three sanction s: (1) It

dismissed the instant suit; (2) it en tered what

the parties have styled a preclusion order, barring Holden from filing another suit in the

Southern District o f Texas “without the

court’s written permission in advance”; and (3)

it ordered her to pay an additional $1 ,000 i n

sanctions to Simp so n Pasadena Paper Company. During the hearing, the court described

the first two orders as “infinitely reviewable,” * Pu rsuant to 5 T H C IR

. R. 47.5, the court has

determined that thi s opinion should not be published and is not precedent except under the limited

circumstances set forth in 5 TH C IR

. R. 47.5.4.3

and explained that it would consider vacating

t ho se o rders if she paid the costs in full. In

January 2002, the court entered an order certifying the dismissal and preclusion orders for

appeal under F ED

. R. C IV

. P. 54.

II.

Holden relies on our cases describi ng the

standards for dismissal under F ED

. R. C IV

. P.

41 for failure to prosecute. Rule 41, however,

also gives courts the power to dismiss for deliberate and flagrant disobedience of court orders. Such dismissals are presumed to be with

prejudice. 1

To dismiss with prejudice for disobedience,

the court must find that (1) the plai ntiff

deliberate l y or contumaciously refused to

comply with (2) mult iple or r epeated court

order s (3) despite the imposition of lesser sanctions. L ong v. Simmons

, 77 F.3d 878, 880

(5th Cir. 1996). 2 A dismissal with prejudice is

“an extreme sanction that deprives the litigant

of the opportuni ty to pursue his c laim.”

Callip

, 757 F.3d at 1519 (citation and internal

quotati on omitted). We review such a

dismissal for abuse of disc retion. L ong

, 77

F.3d at 879.

Simpson met its required burden of proving

that Holden had kno wingly and deliberately

disobeyed the court orde rs. 3 Holden argues

1 Rule 41(b) provides:

For failure of the plaintiff to prosecute

or to comply with these rules or any order of

court, a defendant may move for dismissal

of an action or of any claim against the

defendant. Unless the court in its order for

dismissal otherwise specifies, a dismissal

under this subdivision and any dismissal not

provided for in this rule, other than a

dismissal for lack of jurisdiction, for

improper venue, or for failure to join a party

under Rule 19, operates as an adjudication

on the merits.

F ED

. R

. C IV

. P. 41(b). Although the text of rule

41 ( b) suggests the defendant needs to move for

dismissal, district courts have the inherent power to

raise the possibility of dismissal sua sponte

. L ink

v. Wabash R.R. , 370 U.S. 626, 630-31 (1962)

(f ailure to prosecute); M

artinez v. Johnson

, 104

F.3d 769, 772 (5th Cir. 199 7 ) (disobeying court

order). 2 In the line of cases describing dism i ssals for

failure to pr osecute, we have considered other

aggravating factors, such as whether the pla i ntiff

or attorney caused the delay, the delay prejudiced

the defendant, or the attorney acted intentionally.

Callip v. Harris County Child Welfare Dep’t

, 757

F.3d 1513, 1519 (5th C ir. 1985). It is uncertain

whether these same aggravating factors apply to a

dismissal for a party’s refusal to obey court orders.

We do not need to reach the question, because the

boilerplate test adequately measures many of these

factors and justifies the dismissal.

3 Connolly v. Papachristid Shipping, Ltd.

, 504

F.2d 917, 920 (5th Cir. 1974) (reversing rule 41(b)

dismissal because noncompliance appeared

inadvertent rather than deliberate); Council of Federated O r g. v. Mize

, 339 F.2d 898, 900 (5th Cir.

1964) (reversing because “it must be inferred from

the record that counsel for the plaintiffs

misunderstood the district co urt’s order . . . and

their absence was not willful or in bad faith”);

8 J AMES W M

. M ORE ET AL

., M OORE ’ S F EDERAL

P RACTICE § 41.53, at 2 03-04 (3d ed. 2002)

(“[T]he district court need only find that a party

acted deliberately rather than accidently, and need

not find bad faith.”). S ee Bonaventure v. Butler

, 593 F.2d 625, 626 ( 5th Cir. 1979) (interpreting

F ED

. R. C IV

. P. 37(b) to pe rmit dismissal where

party repeatedly and deliberately refused to appear

for deposition); Durgin v. Graham

, 372 F.2d 130,

(continued...)4

that because we have most commonly upheld

involuntary dismissals for unju s t ified delays

and excessive, frivolous, and abusive litigation,

those a re t he exclusive grounds for proving

wilfulness or bad faith under rule 41(b). Most

of those cases, however, considered dismissals

for failure to prosecute. 4

Rule 41(b) m akes ignoring a court rule or

order a separate ground for involu nt ary dismissal. And it is difficult to imagine how a

plaint iff can di s obey a court order more

willf ully or in worse faith than when she has

knowledge of the order and deliberately

dis o beys it. Holden fails to articulate a

coherent, c o mpeting standard that would

validate her con duct, 5 but merely invokes the buzzwords “bad faith” and “wilfulness,” which

have no meaning in a vacuum.

The district court had little diff i culty

concluding that Holden had deliberately

disobeyed the orde r. After June 1997, the

order imposing costs sh o uld have placed

Holden on notice. Simpson’s subsequent and

repeated attem

pts to contact her went ignored.

By the time of the sanctions hearing, the court

had twice ordered her to pay the outstanding

costs.

At the sanc t io ns hearing, Holden never

even tried to argue that she misunderstood her

leg al obligations in 1997. Despite

unders t anding those obligations, she failed to

satisfy them over a period of four years. The

record evidence overwhelmingly dem onstrates

her deliberateness.

To support its di smissal, the district court

pointed to a series of court orders that Holden

had i gnored for over four years. The district

co urt cannot dismiss for a plaintiff’s isolated

failure to comply with a single o rder; minor

infractions are not enough. 6 We have affirmed 3 (...continued)

131 (5th Cir. 1967) (same).

4 In this portion of her brief, Holden cites cases

with only tangential relevance. E .g.

, Smith v. Legg

( In re United Markets Int n ’l, Inc. ), 24 F.3d 650,

654 (5th Cir. 1994) ( affirming sanction of over

$60,000 based on frivolous cl aims and appeals);

Natural Gas Pipeline Co. v. Energy Gath ering,

Inc.

, 2 F.3d 1397, 1411-12 (5th Cir. 1993) (finding

that attorney acted in bad faith by deliberately

disobeying court orders, but vacating sanction

compelling him to t urn over personal tax records

because it lacked relation to his misconduct and

intruded on his personal privacy); EEOC v. Gen.

Dyna mics Corp. , 999 F.2d 113, 119 (5th Cir.

1993) (reversing sanctions for failure to comply

with discovery orders because district court did not

find that attorney had acted deliberately or

wilfully); Gel abert v. Lynaugh , 894 F.2d 746,

747-48 (5th Cir. 1990) (affirming dismissal of

claim for frivolous and abusive litigation).

5 Holden does not argue that the failure to pay

was her attorney’s fault. We usually do not punish parties for counsel’s mere negligence or in-

(continued...) 5 (...continued)

advert ence. District courts may use a dismissal

with prejudice to punish an attorney’s negligence

only in “extreme and unusual circumstances.”

Hassenflu v. Pyke , 491 F.2d 1094, 1095 (5th Cir.

1974).

6 E.g.

, Neal v. IAM Local Lodge 2386 , 722

F.2d 247, 249 (5th Cir. 1984) (reversing dismissal

for missing “one of t hese deadlines by a few

days”), overruled on other grounds

, Baldwin

Cou nty Welcome Ctr. v. Brown , 466 U.S. 147,

149-50 (19 84); H

ouston Citizens Bank & Trust

Co. v. Dolleslager ( In re Dolleslager ), 618 F.2d

322, 326 (5th Cir. 1980) (reversing dismissal for

failure to obey single pretrial order requi ring

(continued...)5

dismissals, however, where the plaint iffs have

failed either to comply with a series of court

orders 7 or comply with a single co urt order

despite many opportunities to do so. 8

The instant case falls squarely into the latter

category. Holden disobeyed at least three

orders to pay the costs o ver a period of four

years. Her disobedience was grave enough to

warrant dismissal with prejudice. A district court mus t at least consider and

reject less drastic measures. H ornbuckle v.

Arco Oil & Gas Co.

, 7 3 2 F.2d 1233, 1237

(5th Cir. 1984). In most cases, the court

sho uld attempt to use less severe sanctions

before resorting t o involuntary dismissal.

Gonzalez v. Trinity Marine Gro up, Inc. , 117

F.3d 894, 898 (5th Cir. 1997); McNeal v. B.H.

Papasan

, 842 F.2d 7 8 7, 793 (5th Cir. 1988).

If th o se measures would be ineffective,

h owever, the court may involuntarily dismis s

with prejudice. 9

Here, the court settled on dismissal as the

only sanction likely to be effec t ive. In doing

so, the court exercised suffic ient patience.

Holden’s refusal to pay costs from the first suit

limit ed the disciplinary options; the court

reasonably expected that Holden would simply

igno re mo netary fines. The court gave her

several opportunities to comply. In all, t he

two distri ct courts gave Holden three

opportunities to comply with the in itial

assessment of costs.

When Holden failed to pay those costs, the

court was not limit

ed to dismissing without

prejudice. Warnings give the district court latitude to dismiss w it h prejudice, C allip

, 757

F.2d at 1521-22, and doing so was well within

the court’s discretion.

In at least three cases, we have considered

involuntarily dismissals based on failure to pay 6 (...continued)

amendment of complaint); Wrenn v. Am. Cast Iron

Pipe Co.

, 575 F.2d 544, 546 (5th Cir. 1 978)

(finding that failure to pay partial filing fee despite

otherwise diligent prosecution should not justify

dismissal), overruled on other grounds

, Baldwin

County Welcome Ctr. , 466 U.S. at 149-50.

7 E.g., Dorsey v. Scott Wetzel Servs ., Inc. , 84

F.3d 170, 172 (5th Cir. 1996) (affirming dismissal

for failure to file joint pretrial order, failure to appear at docket call, failure to be set for trial, and

tardily designating exper t); B erry v. CIGNA/RSICIGNA

, 975 F.2d 1188, 1192 n.6 (5th Cir. 1992)

(“[W]here a plaintiff has failed to comply with

several court orders or court rules, we have held

that the district cou r t did not abuse its discretion

. . . .”) (collecting cases).

8 E.g

., L arson v. Scott

, 157 F.3d 1030, 1032

(5th Cir. 1998) (affirming dismissal with prejudice

whe r e prisoner plaintiff ignored order to file

statement of trust account and ignored subsequent

warning that failure to comply would result in dismissal); Martin-Trigona v. Morris

, 627 F.2d 680,

682 (5th Cir. 1980) (affirming dismissa l where

plaintiff failed to respond to motion to dismiss over

a period of thirteen months despite three orders to

do so); Hulsey v. Texas

, 929 F.2d 168, 171 (5th

Cir. 1991) (finding that district court properly

dismissed complaint for failure to com ply with

service order because court gave instructi ons and

opportunity to correct faulty service). 9 Sturgeon v. Airborne Freight Corp.

, 778 F.2d

1154 (5th Cir. 1985) (“When lesser sanctions have

proved futile, a district court may properly dismiss

a suit with prejudice.”) (citation and quotations

omitted); Callip

, 757 F.2d at 1521 (explaining that

providing the plaintiff with second and third chances to comply with ord e r counts as a lesser

sanction).6

costs assessed in an earlier case. In D uchardt

v. Ewing

, 571 F.2d 869, 870-71 (5th Cir.

1978), we reversed an automatic, involuntary

dismissal where the plaintiff had attempted to

challenge t he costs in the first case but used

the wrong procedur al vehicle. We classified

the dismiss al sanction as too harsh where the

plaint iff did not ha ve an opportuni ty to

articulate his reasons for defeating cost

recovery

. I

d. In G elabert

, 894 F.2d at 748,

however, we affirmed an involuntary dismissal

with prejudice w here an overly litigious

plaint iff had failed t o pay a $10 fine from an

earlier case. In B alaw ajder v. Scott

, 160 F.3d

106 6, 1067 (5th Cir. 1999), we affirmed an

involuntary dismissal without prejudice for the

plaint iff’s failure to comply with other courts’

sanctions orders. Emphasizing the plaint iff’s

history o f frivolous litigation, we noted that

one court cou l d validly enforce other courts’

orders with the sanction of invol untary

dismissal. I

d. at 1067-68. Neither G ela b ert

nor Balaw ajder

cites or considers Duchardt.

We interpret D uchardt as limit ed to cases

in which the plaint iff asserts that the first court

shifted costs only becaus e t he plaintiff had

made a procedural error and the second court

did not give the plaint iff an opportuni ty to explain or comply before dismissal. In D uchardt

, although we did not spell out the insufficiency,

the district court violated one of our traditional

requirements for a rule 41( b) dismissal. As

early as 1976, we had vacated a decision fo r

failing to consider thoroughly less severe

sanctions. B oazman v. Economics Lab., Inc.

, 537 F.2d 210, 213-14 (5th Cir. 1976).

In Duchardt , the district court

automatically dismissed without considering

lesser sanctions o r warning the plaintiff. We

imposed this requirement to avoid precisely

the risk we described as acute in Duchardt. Without more lenient sanctions a nd an

opportuni ty to respond, the plaint iff never had

the opportuni ty to explain th at the fi rst court

assessed costs only because of his procedural

e rror. The dismissing court, therefore, could

never consider the severity of the plaint iff’s

disobedience in the context of the first court’s

substantive reasons for shifting costs.

By contrast, in this case th e dismissing

court displayed great patience and considered

Holden’s arguments against dismissal . The

court not only issued a new order compelling

payment, but, when Holden fa i led to comply

with that order, the dismissing court i ssued a

second order. Only after Holden failed to

comply with that second order did the court

order a hearing to consider furt her sanctions.

At that hearing, H o lden argued only that

she did no t have the ability to pay. She

a dmitted, however, that she had receiv ed a

se verance payment after the assessment of

costs and used the money to pay off her house

note. She also admitted that she had refused

to negotiate a reasonable regular payment plan

with Simpson despit e their repeated attempts

to contact her.

The cour t certainly could have concluded

that Holden had the mon ey to pay the costs

and that she had no valid objection to the orig inal order. Because Holden received

adequate notice and an opportuni ty to explain,

this case differs fundamentally from Duchardt

. Instead, we rely o n our general caselaw

governing rule 41(b) dismissals, Gelabart

, and

Balaw ajder

. All of these sources point toward

affirming the involuntary dismissal.

III.

The district court also imposed a $1 ,000

sanction. At the hearing, the court appeared7

to base its sanction on the costs generated by

Holden’s refusal

t o pay the original costs assessed in 1997. Because Holden did not voluntarily dismiss her 1995 suit, rule 41(d) did

not authorize the sanction. 10 We have held,

however, that district courts have the inherent

power to sanction litigant s for abusive

conduct. 11 We review the exercise of those

i nherent powers for abuse of discretion

. Natural Gas Pipeline Co. of Am . v. Energy

Gathering, Inc.

, 86 F.3d 464, 467 (5th Cir.

1996).

Holden essentially repeats the argument she

made for reversing the dismissal 

### SS bad fait h is

required, and she did not act in bad faith.

Once again, she cites cases invo lving frivolous

or repetitive litigation and assumes that is the

only example of litigants abusing the litigation

procedure in bad faith. She is wrong. Deliberately dis o beying court orders demonstrates sufficient bad faith to justify a district

court’s sanction under its inherent powers. In

Toon

, 250 F.3d at 953-54, we affirmed a

$ 15,000 sanction where an attorney had ignored an order to file a motion under seal. In

Natural Gas Pipeline

, 2 F.3d at 1409-11, we

labeled an attorney’s bald refusal to comp l y

with three court orders to turn over documents

as “bad faith.” The repeated refusal to comply

with court orders demonstrates “bad faith” and

amply supports the sanctions awarded in this

case.

Fin ally, Holden argues that she does not

have the money, and the district court should

h ave been sensitive to her i n forma pauperis

st at us. A litigant’s poverty should not make

him immune to the courts’ discipline.

Mo net ary fines mean less to insolvent defendants, making them less effective for deterring

abuse of th e judicial system. I n re Sindram

, 498 U.S. 177, 179-80 (1991) (ex plaining

diminished deterrent effect on p ro se

prisoners). We will not limit the scope of

courts’ inherent powers over these defendants

in a way that will exacerbate the problem.

For those reasons, we have previously held

that a litigant’s in forma pauperis status does

not automatically shield him from sanctions for

abusing the liti gation process. I n re United

Markets Int’l

, 2 4 F.3d at 855-56 ; Gelabert

, 894 F.2d at 748. The Supreme Court has similarly interpreted the in forma pauperis statute

no t t o include waiver of filing fees for

frivolous or abusive suits. 12 10 Rule 41(d) shifts costs for lawsuits dismissed

by the plaintiff and later recommenced:

If a plaintiff who has once d ismissed an

ac tion in any court commences an action

b a sed upon or including the same claim

against the same defendant, the court may

make such order for the payment of costs of

the action previously di smissed as it may

deem proper and may stay the proceedings

in the action until the plaintiff has complied

with the order.

F ED

. R. C IV

. P. 41(d).

11 Toon v. Wackenhut Corrections Corp. , 250

F. 3d 950, 952 (5th Cir. 2001) (“When a party’s

deplorabl e conduct is not effectively sanctionable

pursuant to an exist ing rule or statute, it is

appropriate

for a district court to rely on its

in herent powers to impose sanctions.”) (citation

and quota t ions omitted); Natural Gas Pipeline

, 2

F.3d at 1407 (same). 12 E.g.

, Demos v. United States District Court

( In re Demos ), 500 U.S. 16, 17 (1991) (“Petitioner

has abused the system, and we find it appropriate

to deny leave to proceed in forma paupe r is to

(continued...)8

Holden has not presented record evidence

that her impoveris hed status should justify

reversing the sanctions for her admitted

misb ehavior. The district court’s orders

reflected that she only needed to begin paying

the costs. Simpson at tempted to arrange a

monthly, interest free payment pl an. Hol den

refused t o sign a promissory note

memorializing the payment plan and stopped

making payments without no t ice o r

explanation.

In the face of these accommodations, Holden at least had an obligation to bring her financial circumstances to the attenti on of either

Simpson or the court and negotiate a new payment pl an. She di d not do so, and the court

had the discretion to sanction her harsh ly for

her pattern of contumacious conduct.

AFFIRMED.

12 (...continued)

pe t itioner in these two petitions for extraordinary

relief

. . . and

in all future petitions for

extraordinary relief.”); In re McDonald

, 489 U.S.

180, 184 (1989 ) (suspending i n forma pauperis

status for all future writ ap plications because of

past abuses).