Wright v. Robinson, et al

United States Court of Appeals
Fifth Circuit
F I L E D
August 31, 2004
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
___________________
m 04-60153
Summary Calendar
___________________
JANE C. WRIGHT,
Plaintiff-Appellant,
VERSUS
TYRUS ROBINSON; CARLOS ASHFORD; STEVE GAY;
BL DEVELOPMENT CORPORATION,
DOING BUSINESS AS GRAND CASINO TUNICA,
Defendants-Appellees.
___________________
Appeal from the United States District Court
for the Northern District of Mississippi
m 2:02-CV-310
___________________
Before DAVIS, SMITH, and DENNIS,
Circuit Judges.
JERRY E. SMITH, Circuit Judge.*
Jane Wright sued her former employer and
various of its employees for employment dis-
crimination. She appeals, pro se, the dismissal
for failure to prosecute and failure to obey a
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published and
(continued...)
*(...continued)
is not precedent except under the limited circum-
stances set forth in 5TH CIR. R. 47.5.4.

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court order. Finding no error, we affirm.
I.
Wright is black, aged fifty-two. Defendant,
BL Development Corporation, doing business
as Grand Casino Tunica (“the Grand”), was
her employer. Tyrus Robinson, Carlos Ash-
ford, and Steve Gay were Wright’s managers
at The Grand and as such are co-defendants.
Wright began working at the Grand as a Slot
Technician in 2001. She was the only female
and the oldest person in her group.
Wright sued, alleging title VII sexual har-
assment, discrimination on the basis of sex, re-
taliation, and violations of the Age Discrim-
ination in Employment Act. She alleges that
she was performing a coin test with Ashford
when Robinson bluntly stated that despite his
small statute, he had a “big dick.” Thereafter,
Ashford responded that “when you said that,
Jane looked like she wanted to jump on top of
you.”
Wright complained to Robinson the next
day about the inexcusable behavior that had
produced a sexually charged hostile work en-
vironment and left her feeling embarrassed and
degraded. One week later, Wright learned
from Beth Daniels, Manager of Human Rela-
tions, that someone else had filed a complaint
against Robinson and Ashford on behalf of
Wright.
The supervisors of Robinson and Ashford
were repeatedly told about Robinson’s and
Ashford’s inappropriate behavior but failed to
take action to protect Wright and other female
employees. Specifically, no action was taken
against Robinson and Ashford to prevent them
from sexual harassment. Wright avers that at
all times, the Grand either knew or reasonably
should have known of the hostile work envi-
ronment that had been created, but made no
effort to provide Wright with a working envi-
ronment free of harassment and retaliation.
Following the complaint against Robinson
and Ashford, Wright received an unfavorable
performance evaluation affecting her wages
and placing her on probation. These negative
actions were taken within a two-week period
of the complaint. Before the complaint, she
had not received any performance complaints
or other disciplinary action.
Next, Terry Renault, the lead slot techni-
cian manager, asked Wright whether she was
having any problems. Wright again com-
plained of the sexually charged hostile work
environment. Renault conducted no investiga-
tion and instead sought out negative informa-
tion regarding Wright.
Wright was given an ultimatum by Joy Cri-
er of Human Resources, who stated that if
Wright withdrew her complaints, Crier would
discard the negative information Renault had
collected. Furthermore, Jerry Artiglierre, vice-
president of slots, told Wright that he would
investigate her complaints, after which he told
Robinson to “fix the matter.”
Subsequently, Robinson told Wright that
she wo uld be placed on probation for ninety
days, but she would also receive an increase in
salary. Thereafter, Wright resigned and was
replaced by a male less than forty years of age.
II.
Wright consented to assignment to a mag-
istrate judge, who dismissed the case with pre-
judice on February 9, 2004, for failure to pro-
secute and for failure to obey an order that
granted defendants’ motion to compel Wright
to respond to discovery requests and submit to

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a deposition. Wright had failed to respond to
discovery requests. In addition, her initial
attorney, Caldwell, was forced to transfer the
case to another lawyer because Caldwell had
been barred from practicing law. Thereafter,
Wright failed to respond to attempts to contact
and communicate with her made by Labovitz,
her new attorney. Consequently, he resigned,
whereupon the magistrate judge found that
Wright lost interest in the suit. Wright ap-
pealed under FED. R. CIV. P. 73(c).
III.
Wright’s pro se brief raises, inter alia, a
jurisdictional question on appeal. She asks,
“Whereas pursuant to 28 U.S.C.A. 636(c) and
Fed. R. Civ. P. 73, a Title VII Civil Case is
referred to a Magistrate Judge; and where the
referral does not appear to specifically and
directly grant the Magistrate Judge the author-
ity to make and enter final ruling and judg-
ments on dispositive pretrial motions such as
the exercise of contempt powere, may a Mag-
istrate Judge exercise such contempt powers,
without abuse of discretion and the statue
[sic]?
The parties, however, consented to the ex-
ercise of jurisdiction by a magistrate judge.
Under 28 U.S.C. § 636(c), upon consent of
the parties, a magistrate judge may conduct all
proceedings in a civil matter and may order the
entry of judgment; the magistrate judge acts in
the capacity of a district judge. McGinnis v.
Shalala, 2 F.3d 548, 551 (5th Cir. 1993). Be-
fore commencing the trial of any civil case in
which a magistrate judge is to preside pursuant
to the authority of § 636(c), the magistrate
judge must inquire on the record of each party
whether it has filed consent to the magistrate
judge’s presiding and must receive an
affirmative answer from each on the record
before proceeding further. Archie v.
Christian, 808 F.2d 1132, 1137 (5th Cir.
1987).
Under § 636(e)(4), in any case in which a
magistrate judge presides with the consent of
the parties, he may exercise the civil contempt
authority of the district court. In addition, one
of the sanctions authorized by FED. R. CIV. P.
16(f), by reference to FED. R. CIV. P. 37, is
dismissal. Callip v. Harris County Child
Welfare Dep’t, 757 F.2d 1513, 1518 (5th Cir.
1985). The rule merely makes explicit a dis-
cretionary power to control the expeditious
disposition of docketed cases that appellate
courts have long recognized to be an inherent
attribute of federal district courts. Id. Fur-
thermore, FED. R. CIV. P. 41(b) provides that
for failure of the plaintiff to prosecute or to
comply with these rules or any order of the
court, a defendant may move for dismissal of
an action or of any claim.
An appeal from an involuntary dismissal
with prejudice for failure to prosecute or to
obey the orders and rules of the district court
is reviewed for abuse of discretion. Morris v.
Ocean Sys., Inc., 730 F.2d 248, 251 (5th Cir.
1984). The magistrate judge granted defen-
dants’ motion to compel and ordered Wright
to respond to written discovery requests with-
in seven days and to submit to a deposition
scheduled to take place within thirty days. In
its order, the court warned Wright that failing
to comply in any respect would put her at risk
of immediately subjecting herself to the full
panoply of rules 37(d) and 41(b).
Wright did not respond or oppose the mo-
tion, so defendants moved to dismiss on the
ground that Wright had failed to comply with
the order regarding discovery and had failed
adequately to prosecute her case. The court
found that Wright had lost interest in the

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lawsuit.
Wright admits that she consented to the
referral to a magistrate judge. Accordingly,
her argument that the judge was without au-
thority to dismiss her case with prejudice is
without merit. Moreover, the court did not
abuse its discretion by dismissing the case.
Wright erroneously cites Eley v. Heckler,
734 F.2d 724 (11th Cir. 1984), to challenge
the magistrate judge’s authority to dismiss.
Eley states that a magistrate judge is restricted
to making recommendations under 28 U.S.C.
§ 636(b)(1) when not vested with such
decisionmaking power. Id. The case was dis-
tinguished in United States v. Johnston, 258
F.3d 361 (5th Cir. 2001), stating that Congress
intended magistrate judges to exercise juris-
diction on consent of the parties. Specifically,
Congress amended the Federal Magistrates
Act in 1979 to include § 636(c) to improve
access to the federal courts. Id.
In addition, Wright cites United States v.
First Nat’l Bank, 628 F.2d 871 (5th Cir.
1980), to illustrate the potential limitations of
a magistrate judge’s power. That case, how-
ever, was a tax dispute concerning civil and
criminal matters on which the district court
properly had jurisdiction.
IV.
Wright urges that her counsel was respon-
sible for the delay that resulted in the dismiss-
al. The mistakes of counsel in civil litigation
are chargeable to the client, however, irrespec-
tive of how unfair this may seem. Pryor v.
United States Postal Serv., 769 F.2d 281, 288
(5th Cir. 1985). Furthermore, parties have a
duty to inquire periodically into the status of
their litigation. Latham v. Wells Fargo Bank,
987 F.2d 1199, 1201-1202 (5th Cir. 1993). If
we were to make an exception to the finality
of judgment each time a hardship was visited
on the unfortunate client of a negligent or
inadvertent attorney, the meaningful finality of
judgments would largely disappear. Pryor,
769 F.2d at 289.
We affirm a dismissal with prejudice for
failure to prosecute when (1) there is a clear
record of delay or disobedient conduct by the
plaintiff and (2) the district court has expressly
determined that lesser sanctions would not
prompt diligent prosecution, or (3) the record
shows that the district court employed lesser
sanctions that proved to be futile. Callip, 757
F.2d at 519. Although Wright attempts to
place the responsibility on her attorney, she is
not without blame.
Specifically, her second counsel, Labovitz
told the court that Wright had failed to re-
spond to his attempted communication. Con-
sequently, Labovitz submitted a motion to
withdraw, to which Wright did not respond or
object. In addition, Wright failed to cooperate
in the discovery process, causing defendants
irrefutable harm in failing to gather evidence.
The record demonstrates that Wright therefore
intentionally contributed to the delay that
caused actual prejudice to the defendants. Ac-
cordingly, the magistrate judge did not abuse
his discretion in dismissing the case with
prejudice.
V.
As a pro se litigant, Wright should be ac-
corded leniency if the dismissal was procedural
and she has grounds for relief. Moawad v.
Childs, 673 F.2d 850, 851 (5th Cir. 1982).
Therefore, we will determine whether Wright
has displayed grounds for a FED. R. CIV. P.
60(b)(1) motion.

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Under rule 60(b)(1), a court may relieve a
party from a final judgment or order for “mis-
take, inadvertence, surprise, or excusable ne-
glect.” The extraordinary relief afforded by
rule 60(b) requires that the moving party make
a showing of unusual or unique circumstances
justifying such relief. Pryor, 769 F.2d at 286.
The decision to grant or deny rule 60(b) relief
is within the sound discretion of the district
court and will be reversed only for abuse of
discretion. Provident Life & Accident Ins. Co.
v. Goel, 274 F.3d 984, 997 (5th Cir. 2002).
Wright’s situation is analogous to that of
the plaintiff in James v. Rice Univ., 80 Fed.
Appx. 907 (5th Cir. 2003), cert. denied, 124
S. Ct. 2023 (2004). There, the title VII case
was dismissed with prejudice because plain-
tiff’s attorney had failed to comply with dates
set out in the joint case management plan,
failed to provide the required documents, and
failed to appear for a scheduled conference.
Id. at 909. Counsel had pleaded with the court
that in addition to having three toddlers to care
for, her mother had been stricken with serious
health problems, causing her self-admitted
errors. Id. Although this court found sympa-
thy with counsel’s plight, we held that the
situation did not constitute the type of “un-
usual or unique circumstance” justifying rule
60(b) relief. Id. at 911.
Similarly, although we too find sympathy
with the unfortunate circumstances with which
Wright was faced, her situation does not
justify rule 60(b) relief. Specifically, she
admonishes that she was unduly prejudiced
because her initial attorney was the subject of
disciplinary action. Furthermore, she claims
that her attorney was replaced by Labovitz
without her permission. Wright contends that
she was victimized by her initial attorney as
well as by Labovitz. Yet, she admits that these
arguments should have been raised in the
district court.
Contrary to Wright’s arguments, she had a
duty to maintain control of her case at all
times. She took no action to dispute Labo-
vitz’s claim of representation. In addition, she
had a duty to reply to communications from
Labowitz or to replace him. Consequently,
this case is not one of unusual or unique cir-
cumstance deserving of relief under rule 60(b).
AFFIRMED.

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