Castillo v. Alstom Power Inc

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
January 22, 2004
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
No. 03-30631
Summary Calendar
ABELARDO A. CASTILLO,
Plaintiff-Appellant,
versus
ALSTOM POWER, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Middle District of Louisiana
(02-CV-227-A-M1)
Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Abelardo Castillo filed the instant action under the Americans
with Disabilities Act and state law against his former employer,
Alstom Power, Inc. (Alstom), claiming Alstom improperly refused to
rehire him after he recovered from work-related injuries.
Thereafter, Castillo failed both to conduct discovery in accordance
with the scheduling order and to communicate with opposing counsel
or the court. As a result, Alstom filed an unopposed motion to

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strike. The district court granted Alstom’s motion and dismissed
this action with prejudice.
Castillo can not receive relief from that judgment unless he
shows that the district court abused its discretion in dismissing
his action. E.g., SEC v. First Houston Capital Resources Fund,
Inc., 979 F.2d 380, 381-82 (5th Cir. 1992). Castillo has not done
so.
A review of the record reflects that he engaged in “delay or
contumacious conduct” and that the district court determined that
lesser sanctions were inappropriate. See McNeal v. Papasan, 842
F.2d 787, 790 (5th Cir. 1988). Moreover, the breadth of Castillo’s
failures to comply with the discovery order and to communicate with
either opposing counsel or the district court supports that court’s
determination that these failures were intentional and not the
result of mere inadvertence. Such intentional delay is an
aggravating factor supporting a decision to dismiss an action. See
id.
AFFIRMED

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