Summary Calendar CLINTON STACEY DILLON v. Diamond Offshore Management Company

* 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that this opinion should not be published and is not precedent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. 02-40064
Summary Calendar
CLINTON STACEY DILLON
Plaintiff - Appellant
v.
DIAMOND OFFSHORE MANAGEMENT COMPANY; DIAMOND
OFFSHORE DRILLING INC.; DIAMOND OFFSHORE USA, INC.,
Defendants - Appellees
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. G-00-CV-522
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July 23, 2002
Before KING, Chief Judge, and SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
Clinton Stacey Dillon appeals the district court’s dismissal
of his suit filed under the Jones Act, 42 U.S.C. § 688. We have
determined that “unique circumstances” justify the exercise of
appellate jurisdiction in this case. See Fairley v. Jones, 824
F.2d 440, 442 (5th Cir. 1987).
Dillon failed to appear on the day scheduled for the trial;
however, both defense and plaintiff’s counsel were present, along

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No. 02-40064
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with numerous live witnesses for the defense. The district court
entered an order dismissing Dillon’s case without prejudice. The
court directed that it would reinstate the case on its docket if
Dillon would agree to pay the expenses incurred by the defendants
in appearing on the date of trial. Dillon argues that the
district court’s order was an abuse of discretion because it was
not the least restrictive sanction available and because as a
seaman, he was a “ward of the court” entitled to deference from
the district court.
Although the district court stated that its dismissal was
without prejudice, the record indicates that Dillon’s injury
occurred in November 1997, and the complaint was filed in August
2000. Thus, upon refiling, Dillon’s claim would be barred by the
three-year statute of limitations under the Jones Act. See
Taurel v. Central Gulf Lines, Inc., 947 F.2d 769, 771 (5th Cir.
1991)(three-year statute of limitations governs action under the
Jones Act). In such circumstances, we treat the dismissal as
tantamount to a dismissal with prejudice. See Long v. Simmons,
77 F.3d 878, 879-80 (5th Cir. 1996)(statute of limitations can
cause dismissal without prejudice to operate as a dismissal with
prejudice).
FED. R. CIV. P. 41(b) permits a district court to dismiss an
action for failure to prosecute sua sponte in order to “achieve
the orderly and expeditious disposition of cases.” Morris v.
Ocean Sys. Inc., 730 F.2d 248, 251 (5th Cir. 1984)(citation

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No. 02-40064
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omitted). We review such a dismissal for an abuse of discretion,
but will affirm only upon a showing of a clear record of delay or
contumacious conduct by the plaintiff and that lesser sanctions
would not serve the best interests of justice. See id. at 252.
We also consider certain “aggravating factors” such as the extent
to which the plaintiff himself was responsible for the delay, the
degree of actual prejudice to the defendant, and whether the
delay was the result of intentional conduct. Id.
Dillon offers no explanation for his failure to appear on
the day of trial. Given that counsel for the defendants appeared
on the scheduled trial date with numerous live witnesses present,
it cannot be said that the district court’s order was an abuse of
discretion. See Rogers v. Kroger Co., 669 F.2d 317 (5th Cir.
1982); Anthony v. Marion County Gen. Hosp., 617 F.2d 1164 (5th
Cir. 1980); Hepperle v. Johnston, 590 F.2d 609 (5th Cir. 1979).
Accordingly, the judgment of the district court is AFFIRMED.
AFFIRMED.

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