Holden v. Simpson Paper Co, et al

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 01-20914
Summary Calendar
_______________
NELDA HOLDEN; ET AL.,
Plaintiffs,
NELDA HOLDEN,
Plaintiff-Appellant,
VERSUS
SIMPSON PAPER COMPANY; ET AL.,
Defendants,
SIMPSON PASADENA PAPER COMPANY; PASADENA PAPER COMPANY, 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, 2002

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Before JONES, SMITH, and
EMILIO M. GARZA, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Nelda Holden sued Simpson Paper Com-
pany (“Simpson”) for unlawful discharge. In
this litigation, she repeatedly refused to com-
ply 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 suit 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 her an additional
$1,000. Concluding that Holden’s deliberate
disobedience of multiple court orders brought
these sanctions within the district court’s dis-
cretion, we affirm.
I.
In October 1995, Holden sued Simpson for
unlawful discrimination. Holden 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.
In April 2000, Holden brought the instant
suit against Simpson, Pasadena Paper Com-
pany, and various other entities. In August
2000, Simpson informed the court of the out-
standing 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 debt or otherwise
complying with the order.
In January 2001, Simpson filed a motion
notifying the district court of Holden’s non-
compliance, explaining its attempts to contact
her attorney. That month, the court issued its
second order directing Holden to negotiate a
payment plan with Simpson for the costs im-
posed 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 effect.
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 rea-
sonable basis for refusing to pay. Although
Holden explained she had been unable to ob-
tain work, she also stated that she had used a
lump sum severance payment to pay off the
note on her house, and the court concluded
she had not looked for work diligently.
The court entered three sanctions: (1) It
dismissed the instant suit; (2) it entered what
the parties have styled a preclusion order, bar-
ring Holden from filing another suit in the
Southern District of Texas “without the
court’s written permission in advance”; and (3)
it ordered her to pay an additional $1,000 in
sanctions to Simpson Pasadena Paper Com-
pany. During the hearing, the court described
the first two orders as “infinitely reviewable,”
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
lished and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.

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and explained that it would consider vacating
those orders if she paid the costs in full. In
January 2002, the court entered an order cer-
tifying the dismissal and preclusion orders for
appeal under FED. R. CIV. P. 54.
II.
Holden relies on our cases describing the
standards for dismissal under FED. R. CIV. P.
41 for failure to prosecute. Rule 41, however,
also gives courts the power to dismiss for de-
liberate and flagrant disobedience of court or-
ders. Such dismissals are presumed to be with
prejudice.1
To dismiss with prejudice for disobedience,
the court must find that (1) the plaintiff
deliberately or contumaciously refused to
comply with (2) multiple or repeated court
orders (3) despite the imposition of lesser
sanctions. Long 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 opportunity to pursue his claim.”
Callip, 757 F.3d at 1519 (citation and internal
quotation omitted). We review such a
dismissal for abuse of discretion. Long, 77
F.3d at 879.
Simpson met its required burden of proving
that Holden had knowingly and deliberately
disobeyed the court orders.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.
FED. R. CIV. 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. Link
v. Wabash R.R., 370 U.S. 626, 630-31 (1962)
(failure to prosecute); Martinez v. Johnson, 104
F.3d 769, 772 (5th Cir. 1997) (disobeying court
order).
2 In the line of cases describing dismissals for
failure to prosecute, we have considered other
aggravating factors, such as whether the plaintiff
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 Cir. 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 Fed-
erated Org. 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 court’s order . . . and
their absence was not willful or in bad faith”);
8 JAMES WM. MORE ET AL., MOORE’S FEDERAL
PRACTICE § 41.53, at 203-04 (3d ed. 2002)
(“[T]he district court need only find that a party
acted deliberately rather than accidently, and need
not find bad faith.”). See Bonaventure v. Butler,
593 F.2d 625, 626 (5th Cir. 1979) (interpreting
FED. R. CIV. P. 37(b) to permit dismissal where
party repeatedly and deliberately refused to appear
for deposition); Durgin v. Graham, 372 F.2d 130,
(continued...)

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that because we have most commonly upheld
involuntary dismissals for unjustified delays
and excessive, frivolous, and abusive litigation,
those are 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) makes ignoring a court rule or
order a separate ground for involuntary dis-
missal. And it is difficult to imagine how a
plaintiff can disobey a court order more
willfully or in worse faith than when she has
knowledge of the order and deliberately
disobeys it. Holden fails to articulate a
coherent, competing standard that would
validate her conduct,5 but merely invokes the
buzzwords “bad faith” and “wilfulness,” which
have no meaning in a vacuum.
The district court had little difficulty
concluding that Holden had deliberately
disobeyed the order. After June 1997, the
order imposing costs should have placed
Holden on notice. Simpson’s subsequent and
repeated attempts 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 sanctions hearing, Holden never
even tried to argue that she misunderstood her
legal obligations in 1997. Despite
understanding those obligations, she failed to
satisfy them over a period of four years. The
record evidence overwhelmingly demonstrates
her deliberateness.
To support its dismissal, the district court
pointed to a series of court orders that Holden
had ignored for over four years. The district
court cannot dismiss for a plaintiff’s isolated
failure to comply with a single order; 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 Intn’l, Inc.), 24 F.3d 650,
654 (5th Cir. 1994) (affirming sanction of over
$60,000 based on frivolous claims and appeals);
Natural Gas Pipeline Co. v. Energy Gathering,
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 turn over personal tax records
because it lacked relation to his misconduct and
intruded on his personal privacy); EEOC v. Gen.
Dynamics 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); Gelabert 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 pun-
ish parties for counsel’s mere negligence or in-
(continued...)
5(...continued)
advertence. 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 these deadlines by a few
days”), overruled on other grounds, Baldwin
County Welcome Ctr. v. Brown, 466 U.S. 147,
149-50 (1984); Houston 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 requiring
(continued...)

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dismissals, however, where the plaintiffs have
failed either to comply with a series of court
orders7 or comply with a single court 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 over a period of four
years. Her disobedience was grave enough to
warrant dismissal with prejudice.
A district court must at least consider and
reject less drastic measures. Hornbuckle v.
Arco Oil & Gas Co., 732 F.2d 1233, 1237
(5th Cir. 1984). In most cases, the court
should attempt to use less severe sanctions
before resorting to involuntary dismissal.
Gonzalez v. Trinity Marine Group, Inc., 117
F.3d 894, 898 (5th Cir. 1997); McNeal v. B.H.
Papasan, 842 F.2d 787, 793 (5th Cir. 1988).
If those measures would be ineffective,
however, the court may involuntarily dismiss
with prejudice.9
Here, the court settled on dismissal as the
only sanction likely to be effective. In doing
so, the court exercised sufficient patience.
Holden’s refusal to pay costs from the first suit
limited the disciplinary options; the court
reasonably expected that Holden would simply
ignore monetary fines. The court gave her
several opportunities to comply. In all, the
two district courts gave Holden three
opportunities to comply with the initial
assessment of costs.
When Holden failed to pay those costs, the
court was not limited to dismissing without
prejudice. Warnings give the district court la-
titude to dismiss with prejudice, Callip, 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. 1978)
(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 ap-
pear at docket call, failure to be set for trial, and
tardily designating expert); Berry v. CIGNA/RSI-
CIGNA, 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 court did not abuse its discretion
. . . .”) (collecting cases).
8 E.g., Larson v. Scott, 157 F.3d 1030, 1032
(5th Cir. 1998) (affirming dismissal with prejudice
where prisoner plaintiff ignored order to file
statement of trust account and ignored subsequent
warning that failure to comply would result in dis-
missal); Martin-Trigona v. Morris, 627 F.2d 680,
682 (5th Cir. 1980) (affirming dismissal 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 comply with
service order because court gave instructions 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 chanc-
es to comply with order counts as a lesser
sanction).

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costs assessed in an earlier case. In Duchardt
v. Ewing, 571 F.2d 869, 870-71 (5th Cir.
1978), we reversed an automatic, involuntary
dismissal where the plaintiff had attempted to
challenge the costs in the first case but used
the wrong procedural vehicle. We classified
the dismissal sanction as too harsh where the
plaintiff did not have an opportunity to
articulate his reasons for defeating cost
recovery. Id. In Gelabert, 894 F.2d at 748,
however, we affirmed an involuntary dismissal
with prejudice where an overly litigious
plaintiff had failed to pay a $10 fine from an
earlier case. In Balawajder v. Scott, 160 F.3d
1066, 1067 (5th Cir. 1999), we affirmed an
involuntary dismissal without prejudice for the
plaintiff’s failure to comply with other courts’
sanctions orders. Emphasizing the plaintiff’s
history of frivolous litigation, we noted that
one court could validly enforce other courts’
orders with the sanction of involuntary
dismissal. Id. at 1067-68. Neither Gelabert
nor Balawajder cites or considers Duchardt.
We interpret Duchardt as limited to cases
in which the plaintiff asserts that the first court
shifted costs only because the plaintiff had
made a procedural error and the second court
did not give the plaintiff an opportunity to ex-
plain or comply before dismissal. In Duchardt,
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 for
failing to consider thoroughly less severe
sanctions. Boazman v. Economics Lab., Inc.,
537 F.2d 210, 213-14 (5th Cir. 1976).
In Duchardt, the district court
automatically dismissed without considering
lesser sanctions or warning the plaintiff. We
imposed this requirement to avoid precisely
the risk we described as acute in Duchardt.
Without more lenient sanctions and an
opportunity to respond, the plaintiff never had
the opportunity to explain that the first court
assessed costs only because of his procedural
error. The dismissing court, therefore, could
never consider the severity of the plaintiff’s
disobedience in the context of the first court’s
substantive reasons for shifting costs.
By contrast, in this case the 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 failed to comply
with that order, the dismissing court issued a
second order. Only after Holden failed to
comply with that second order did the court
order a hearing to consider further sanctions.
At that hearing, Holden argued only that
she did not have the ability to pay. She
admitted, however, that she had received a
severance 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 despite their repeated attempts
to contact her.
The court certainly could have concluded
that Holden had the money to pay the costs
and that she had no valid objection to the ori-
ginal order. Because Holden received
adequate notice and an opportunity to explain,
this case differs fundamentally from Duchardt.
Instead, we rely on our general caselaw
governing rule 41(b) dismissals, Gelabart, and
Balawajder. 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 appeared

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to base its sanction on the costs generated by
Holden’s refusal to pay the original costs as-
sessed in 1997. Because Holden did not vol-
untarily 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 litigants for abusive
conduct.11 We review the exercise of those
inherent 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 dismissalSSbad faith is
required, and she did not act in bad faith.
Once again, she cites cases involving frivolous
or repetitive litigation and assumes that is the
only example of litigants abusing the litigation
procedure in bad faith. She is wrong.
Deliberately disobeying court orders dem-
onstrates 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 ig-
nored 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 comply
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.
Finally, Holden argues that she does not
have the money, and the district court should
have been sensitive to her in forma pauperis
status. A litigant’s poverty should not make
him immune to the courts’ discipline.
Monetary fines mean less to insolvent defen-
dants, making them less effective for deterring
abuse of the judicial system. In re Sindram,
498 U.S. 177, 179-80 (1991) (explaining
diminished deterrent effect on pro 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 litigation process. In re United
Markets Int’l, 24 F.3d at 855-56; Gelabert,
894 F.2d at 748. The Supreme Court has sim-
ilarly interpreted the in forma pauperis statute
not to 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 dismissed an
action in any court commences an action
based 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 dismissed as it may
deem proper and may stay the proceedings
in the action until the plaintiff has complied
with the order.
FED. R. CIV. P. 41(d).
11 Toon v. Wackenhut Corrections Corp., 250
F.3d 950, 952 (5th Cir. 2001) (“When a party’s
deplorable conduct is not effectively sanctionable
pursuant to an existing rule or statute, it is
appropriate for a district court to rely on its
inherent powers to impose sanctions.”) (citation
and quotations 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 pauperis to
(continued...)

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Holden has not presented record evidence
that her impoverished status should justify
reversing the sanctions for her admitted
misbehavior. The district court’s orders
reflected that she only needed to begin paying
the costs. Simpson attempted to arrange a
monthly, interest free payment plan. Holden
refused to sign a promissory note
memorializing the payment plan and stopped
making payments without notice or
explanation.
In the face of these accommodations, Hol-
den at least had an obligation to bring her fi-
nancial circumstances to the attention of either
Simpson or the court and negotiate a new pay-
ment plan. She did not do so, and the court
had the discretion to sanction her harshly for
her pattern of contumacious conduct.
AFFIRMED.
12(...continued)
petitioner 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 in forma pauperis
status for all future writ applications because of
past abuses).

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