Clark v. La Marque Indep Sch, et al

*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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-40527
Summary Calendar
TREV CLARK,
Plaintiff-Appellant,
versus
LA MARQUE INDEPENDENT SCHOOL
DISTRICT; RUSSEL E. WASHINGTON, JR.,
Chief of Police, Individually and in His Official
Capacity as Chief Of Police for La Marque,
Independent School District; BEN CAVIL,
Individually and In His Official Capacity as
Assistant Superintendent of Administration for
La Marque Independent School District,
Defendants-Appellees.
________________________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. G-99-CV-668
________________________________________
December 14, 2000
Before POLITZ, JOLLY, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*

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1Gonzales v. Firestone Tire & Rubber Co., 610 F.2d 241 (5th Cir. 1980).
2Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188 (5th Cir. 1992).
3Callip v. Harris County Child Welfare Department, 757 F.2d 1513 (5th Cir. 1985).
4370 U.S. 626 (1962).
2
Trev Clark appeals the dismissal with prejudice of his action under Fed. R.
Civ. P. 41(b) because of his counsel’s failure to appear at a pretrial conference.
Clark contends that the district court abused its discretion in dismissing this action
for want of prosecution because no dilatory conduct occurred, and no lesser
sanction appropriately was considered.
A dismissal by the trial court under Rule 41(b) is reviewed for abuse of
discretion.1 Such a dismissal with prejudice is considered an extreme sanction, one
warranted only when there is a clear record of delay or contumacious conduct by the
plaintiff. Further, this sanction is appropriate only when the district court has
expressly determined that lesser sanctions would not result in diligent prosecution,
or the record reflects that the district court employed lesser sanctions that proved to
be futile.2 This standard applies in situations such as is here presented, and the
dismissal is due to counsel’s failure to appear at a pretrial conference.3
Appellees cite Link v. Wabash Railroad Co.,4 as authority for this court to
uphold the dismissal based on the failure of the attorney to attend a scheduling
conference. In Link, the Supreme Court held that the district court did not abuse its
discretion because, in addition to the failure to appear at the conference, the drawn-
out history of the litigation reflected that the plaintiff had been deliberately

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5Id. at 633.
6610 F.2d at 247-48.
7Id. at 247-48.
3
proceeding in dilatory fashion.5 Appellees contend that the action of Clark’s
counsel in seeking a continuance of the conference on one occasion is evidence of
prior dilatory conduct.
In the above-cited Gonzalez case,6 we held that the district court abused its
discretion in dismissing the action based on counsel’s failure to appear when the
record revealed only one prior failure to comply with an order of the court. We
concluded that the record did not reflect the quality of delay or contumacious
conduct by Gonzalez or his attorney sufficient to justify dismissal with prejudice.
The district court had granted Gonzalez one continuance for approximately five
months, but the record reflected no significant periods of inactivity. Further, the
district court had not attempted to take any action short of dismissal.7
The district court herein abused its discretion in dismissing Clark’s action
with prejudice based on counsel’s failure to appear at the conference when the only
previously cited instance of dilatory conduct was in requesting a continuance of that
conference. That sole instance is insufficient to warrant dismissal. The record
reflects no attempt by the trial court to determine whether lesser sanctions would
have sufficed. Nor does the record contain evidence of dilatory prosecution of this
matter, particularly in light of the fact that the plaintiff had shortly before complied
with the court’s order to file a joint report of meeting on discovery.

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4
The district court’s order and judgment dismissing Clark’s action with
prejudice is hereby VACATED and this matter is REMANDED for further
appropriate proceedings.

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