Herrera v. Computer Science

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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m 99-30878
Summary Calendar
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LUIS HERRERA,
Plaintiff-Appellant,
VERSUS
COMPUTER SCIENCES CORPORATION, et al.,
Defendants,
COMPUTER SCIENCES CORPORATION,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
(96-CV-3896-B)
_________________________
January 26, 2000
Before SMITH, BARKSDALE, and
PARKER, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Luis Herrera sued for alleged violations of
title VII, but, after a bevy of delays, the suit
was dismissed for want of prosecution. He
filed a motion for reconsideration of the
dismissal under FED. R. CIV. P. 60(b), which
was denied. Finding no reversible error, we
affirm.
I.
In May 1997, the district court set a trial
date of October 20, 1997. On October 16,
Herrera moved for a continuance, citing
mental unfitness to appear in court. The trial
was rescheduled for April 6, 1998. On March
10, 1998, Herrera again moved for
continuance because his attorney was
undergoing surgery and was unable to attend.
The court granted the continuance and set trial
for October 19, 1998.
On October 13, 1998, perhaps predictably
by now, Herrera’s counsel sought to withdraw
because of “irreconcilable conflicts” with
Herrera. The case was administratively closed
and the trial date continued, but this time with
instructions to Herrera, before November 16,
1998, to enroll new counsel, provide medical
reports illustrating his disability, and submit a
required pre-trial order. The court explained
that dismissal would follow a failure to
comply. Herrera’s first response came on
* 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determined that this opinion should not be published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.

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November 24, 1998, when two attorneys
petitioned to enroll as his counsel. The court
granted leave, providing thirty days in which
CSC might “verify the medical information
provided by plaintiff,” and provided Herrera
“an additional thirty days” to submit a
completed pre-trial order.
Herrera read these grants as conjunctive,
providing an extra sixty days in which to
present the pre-trial order, while CSC and the
court intended only a thirty-day grant.
Nevertheless, Herrera failed to meet even this
self-extended deadline. Not until February 11,
1999, did he file anything more, this time in
the form of a motion to “determine the scope
of the complaint” and to receive a further
extension of time to file the pre-trial order.
By judgment entered April 21, 1999, the
district court denied Herrera’s motions. In the
exercise of its inherent power to dismiss claims
for failure to prosecute, the court rendered
judgment in favor of CSC and against Herrera,
dismissing his claims.
On May 3, 1999, Herrera filed a motion for
reconsideration. The court dismissed the
motion “without prejudice to reurge.” Herrera
resubmitted it on July 21, 1999, following an
unsuccessful settlement conference. The court
again denied the motion.
II.
Appeal of the denial of a motion for
reconsideration filed more than ten days after
a grant of judgment is treated as an appeal of
the denial of a motion under FED. R. CIV. P.
60(b). Lavespere v. Niagara Mach. & Tool
Works, Inc., 910 F.2d 167, 173 (5th Cir.
1990). On appeal of the denial of a rule 60(b)
motion, “our review is limited to whether the
[d]istrict [c]ourt abused its discretion in
denying the . . . motion.” Ta Chi Navigation
(Panama) Corp., S.A. v. United States, 728
F.2d 699, 703 (5th Cir. 1984). The denial of
a rule 60(b) motion “does not bring up the
underlying judgment for review.” Id. Thus,
“[t]he decision under Rule 60(b) is discretion
piled on discretion, and . . . such doubly
discretionary decisions stand unless the judge
was very far off baseSSif the judge relied on
forbidden factors or omitted to consider some
important relevant factor.” Tolliver v.
Northrop Corp., 786 F.2d 316, 318 (7th Cir.
1986).
III.
Herrera builds his argument on a mistaken
quotation. He quotes Clofer v. Perego,
106 F.3d 678, 679 (5th Cir. 1997), for the
proposition that “dismissals with prejudice are
reserved for the most egregious of cases where
the requisite factors of clear delay and
ineffective lesser sanctions are bolstered by the
presence of at least one of the aggravating
factors.” The actual passage from Clofer says
that “dismissals with prejudice are reserved for
the most egregious of cases, usually cases
where the requisite factors of clear delay and
ineffective lesser sanctions are bolstered by the
presence of at least one of the aggravating
factors.” Clofer, id. (emphasis added).
Herrera’s misquote obfuscates the fact that
dismissal of a motion with prejudice is
appropriate in cases in which clear delay,
ineffective lesser sanctions, and at least one
aggravating factor are not present. Under our
highly constrained standard of review, we
would be hard pressed, should one or more of
these factors be lacking, to find that the district
court erred.
Nevertheless, we do not find any factor
missing. The story of continuance after
continuance, year upon year, which is briefly
outlined above, constitutes “clear delay.” That
lesser sanctions have proven ineffective is
demonstrated by the fact that the district court,
in its patience, cajoled and warned Herrera,
and specifically ordered definitive progress at
definitive times, all without effect.
Finally, the “aggravating factors” of which
Clofer speaks “include (1) delay resulting from
intentional conduct, (2) delay caused by the
plaintiff personally, and (3) delay causing
prejudice to the defendant.” Id. The court
found that the delays in this case redounded
“solely” to the responsibility of the Herrera,
rather than to his old or new counsel.
New counsel objects to this
characterization. Whether the responsibility is
“solely” Herrera’s, though, is beside the point.

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The record indicates that at least some of the
delays are directly his fault, as when he
claimed a mental state too frail to proceed, but
then refused to be examined by the defendant’s
doctors unless the meeting was recorded. This
is not only “intentional” conduct, but is also
conduct “caused by him personally.”
It goes without saying, meanwhile, that
years of delay and continued litigation, or the
threat thereof, caused prejudice to CSCSSthe
prejudice of foggy memories, absent witnesses,
and increased legal bills. So, though the
Clofer court did not pretend, as Herrera would
have had it do, that its list of “aggravating
factors” was exhaustive, Herrera nonetheless
seems to have aggravated in every stated way.
Under these circumstances, we can hardly
find that the district court abused its
substantial realm of discretion in dismissing
this case with prejudice. AFFIRMED.

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