Filed: Feb. 22, 2007
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D In the February 22, 2007 United States Court of Appeals Charles R. Fulbruge III for the Fifth Circuit Clerk _ m 06-20555 Summary Calendar _ JOSEPH C. ORDUNA, Plaintiff-Appellant, VERSUS THE TEXAS COMMISSION ON ALCOHOL AND DRUG ABUSE AND JIM MCDADE, Defendants-Appellees. _ Appeal from the United States District Court for the Southern District of Texas m 4:01-CV-1474 _ Before SMITH, WIENER, and OWEN, against TCADA and McDade. After a hear- Ci
Summary: United States Court of Appeals Fifth Circuit F I L E D In the February 22, 2007 United States Court of Appeals Charles R. Fulbruge III for the Fifth Circuit Clerk _ m 06-20555 Summary Calendar _ JOSEPH C. ORDUNA, Plaintiff-Appellant, VERSUS THE TEXAS COMMISSION ON ALCOHOL AND DRUG ABUSE AND JIM MCDADE, Defendants-Appellees. _ Appeal from the United States District Court for the Southern District of Texas m 4:01-CV-1474 _ Before SMITH, WIENER, and OWEN, against TCADA and McDade. After a hear- Cir..
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United States Court of Appeals
Fifth Circuit
F I L E D
In the February 22, 2007
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 06-20555
Summary Calendar
_______________
JOSEPH C. ORDUNA,
Plaintiff-Appellant,
VERSUS
THE TEXAS COMMISSION ON ALCOHOL AND DRUG ABUSE
AND
JIM MCDADE,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
m 4:01-CV-1474
______________________________
Before SMITH, WIENER, and OWEN, against TCADA and McDade. After a hear-
Circuit Judges. ing, Orduna filed a motion to re-open against
TCADA and McDade, and the court granted
PER CURIAM:* the motion.
The district court dismissed Joseph Ordu- TCADA and McDade then moved for dis-
na’s case against the Texas Commission on Al- missal under rule 41(b)2 for failing to prose-
cohol and Drug Abuse (“TCADA”) and Jim cute. The court granted the motion, finding
McDade for lack of prosecution under Federal that Orduna’s inactionSSnot the clerk’s er-
Rule of Civil Procedure 41(b). We affirm. rorSShad caused the delay, because (1) Ordu-
na should have known it did not take three
I. years for the court to set a trial date; (2) the
Orduna sued the State of Texas and clerk’s error of closing the case was a matter
TCADA in April 2000. He amended his peti- of public record; and (3) Orduna had not con-
tion in March 2001 and May 2001, nonsuiting ducted any discovery or filed any pleadings.
the state and adding McDade, Golden Leader- Further, the court found that Orduna’s inac-
ship Academy, and Richard Johnson as defen- tion had hampered the discovery process in
dants. such a way that would prejudice TCADA and
McDade.3
The matter was removed to federal court,
and Orduna obtained leave to depose McDade II.
and conduct limited discovery, but he took no We review for abuse of discretion a dis-
action pursuant to that permission. He ob- missal for lack of prosecution. Tello v.
tained a default judgment against Golden Comm’r, 410 F.3d 743, 744 (5th Cir.), cert.
Leadership Academy and Johnson in March denied,
126 S. Ct. 381 (2005). The standard
2002, and the court entered final judgment as to evaluate dismissals for lack of prosecution
to them.
In September 2002, the district clerk’s of- 2
That rule states:
fice accidentally closed the case as to all defen-
dants, including TCADA and McDade. Or- For failure of the plaintiff to prosecute or to
duna took no action for three years1 until the comply with these rules or any order of court, a
district court, in January 2006, noticed the defendant may move for dismissal of an action
case had been mistakenly closed and asked Or- or of any claim against the defendant. Unless
duna whether he intended to pursue claims the court in its order for dismissal otherwise
specifies, a dismissal under this subdivision and
any dismissal not provided for in this rule, other
than a dismissal for lack of jurisdiction, for im-
*
Pursuant to 5TH CIR. R. 47.5, the court has de- proper venue, or for failure to join a party un-
termined that this opinion should not be published der Rule 19, operates as an adjudication upon
and is not precedent except under the limited cir- the merits.
cumstances set forth in 5TH CIR. R. 47.5.4.
3
After TCADA and McDade were added to the
1
Orduna claims he was delaying because he suit, the legislature dissolved TCADA, and Mc-
was waiting for the court to set a trial date. Dade has retired.
2
is plain:
Dismissals with prejudice for failure to pro-
secute are proper only where (1) there is a
clear record of delay or contumacious con-
duct by the plaintiff and (2) the district
court has expressly determined that lesser
sanctions would not prompt diligent prose-
cution, or the record shows that the district
court employed lesser sanctions that proved
to be futile. In most cases, a plain record
of delay or contumacious conduct is found
if one of the three aggravating factors is
also present: (1) delay caused by the plain-
tiff; (2) actual prejudice to the defendant; or
(3) delay as a result of intentional conduct.
Stearman v. Comm’r, 436 F.3d 533, 535 (5th
Cir.) (per curiam), cert. denied,
126 S. Ct.
2900 (2006) (internal citations omitted).
Orduna took no action for four and a half
years.4 To conduct discovery or file pleadings,
he did not need the court to set a trial date, so
he caused the delay. Also, TCADA would
suffer “actual prejudice,” because it no longer
exists as an entity. The district court had dis-
cretion to dismiss Orduna’s claims, and based
on the guiding standard, it did not abuse that
discretion.
The judgment of dismissal is AFFIRMED.
4
Prolonged inactivity is sufficient to warrant
dismissal in this case. See Harrelson v. United
States, 613 F.2d 114, 116 (5th Cir. 1980) (per cur-
iam) (“In light of the significant inactivity of the
plaintiff, we cannot say the district court abused its
discretion in dismissing the complaint.”).
3
