* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-20357

RICKY RAYMOND; DONALD EUBANKS; VIRGINIA LARA

Plaintiffs-Appellants

v.

UNIVERSITY OF HOUSTON

Defendant-Appellee

Appeal from the United States District Court 

for the Southern District of Texas

(05-CV-4149)

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Plaintiffs-Appellants Ricky Raymond, Donald Eubanks, and Virginia Lara

(“Appellants”) appeal the involuntary dismissal of their action against

Defendant-Appellee University of Houston (“the University”) for failure to

prosecute under Federal Rule of Civil Procedure 41(b). Because we conclude

that the record here does not support the extreme sanction of dismissal with

prejudice, we REVERSE the judgment of the district court and REMAND for

further proceedings.

United States Court of Appeals

Fifth Circuit

F I L E D

April 29, 2008

Charles R. Fulbruge III

Clerk
No. 07-20357

1 We have found a “clear record of delay” where there have been “significant periods of

total inactivity.” Berry, 975 F.2d at 1191 n. 5 (internal quotations omitted).

2

Rule 41(b) provides that “[i]f the plaintiff fails to prosecute or to comply

with these rules or a court order, a defendant may move to dismiss the action or

any claim against it.” FED. R. CIV. P. 41(b). In other words, “Rule 41(b) allows

the district court to dismiss an action upon the motion of a defendant, or upon

its own motion, for failure to prosecute.” Berry v. CIGNA/RSI-CIGNA, 975 F.2d

1188, 1190 (5th Cir. 1992). We review a district court’s dismissal with prejudice

for failure to prosecute pursuant to Rule 41(b) for an abuse of discretion. Id. at

1191. We have recognized, however, that a dismissal with prejudice is “an

extreme sanction that deprives the litigant of the opportunity to pursue his

claim.” Id. (internal quotations omitted). “Consequently, this Court has limited

the district court’s discretion in dismissing cases with prejudice.” Id. We have

stated: 

We will affirm dismissals with prejudice for failure to prosecute

only when (1) there is a clear record of delay1or 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. We have also stated that “in most cases where this Court has affirmed

dismissals with prejudice, we found at least one of three 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

quotations omitted); see also Rogers v. Kroger Co., 669 F.2d 317, 320 (5th Cir.

1982) (“The 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
No. 07-20357

3

ineffective lesser sanctions are bolstered by the presence of at least one of the

aggravating factors.”).

At most, there appear to be two periods of purported inactivity during the

pendency of this litigation: (1) from April 16, 2006 to November 27, 2006; and (2)

from January 10, 2007 to March 26, 2007. The first period, during which the

Appellants failed to participate in discovery, is wholly attributable to the serious

health problems of their counsel Lionel Mills, who underwent surgery, spent

time at a hospital, became sightless, and ultimately moved into a convalescent

home, all unbeknownstto the Appellants themselves until November 2006. The

second period, during which the Appellants failed to obtain new counsel by the

court-ordered deadline, was not in fact a period of total inactivity. The

Appellants participated in discovery and engaged in discussions with a new

attorney, Larry Watts, about substituting as lead counsel for Mills, who could

no longer adequately represent Appellants due to his health problems. Watts

eventually agreed to become Appellants’ counsel, but he negligently failed to

inform the district court before the sixty-day deadline it had imposed on

Appellants to find new counsel. 

On this record, we do not find a clear record of delay or contumacious

conduct on the part of the Appellants. Rather, counsel’s conduct “more closely

approximates the kind of negligence that does not warrant dismissal with

prejudice.” John v. State of Louisiana, 828 F.2d 1129, 1132 (5th Cir. 1987); see

also Morris v. Ocean Sys., Inc., 730 F.2d 248, 253 (5th Cir. 1984) (calling

counsel’s conduct “more a matter of negligence than purposeful delay or

contumaciousness”). Moreover, none of the three “aggravating factors” is

presentin this case:(1)the Appellants, as distinguished from their counsel, were

not personally responsible for the delay in prosecuting this lawsuit; (2) there is

no indication that the University was actually prejudiced by the delay in
No. 07-20357

4

prosecution of this case; and (3) the delay was not caused by any intentional

conduct on the part of Appellants or their counsel.

REVERSED and REMANDED.