UNITED STATES COURT OF APPEALS FIFTH CIRCUIT

_______________

No. 95-60037

(Summary Calendar) _______________

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE,

Plaintiff-Appellant,

versus

PEARL RIVER VALLEY POWER ASSOCIATION,

Defendant-Appellee.

_______________________________________________

Appeal from the United States District Court For the Southern District of Mississippi (2:94-CV-216PS) _______________________________________________ (October 20, 1995)

Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Plaintiff, National Association For the Advancement of Colored

People ("NAACP"), appeals from the district court's order

dismissing its case without prejudice for failure to state a claim

and failure to prosecute. We affirm.

I

NAACP filed a complaint against Pearl River Valley Power

* Local Rule 47.5.1 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well- settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the Court has determined that this opinion should not be published. Association ("Pearl") alleging that Pearl had discriminated against

"African Americans" in its employment practices. NAACP's counsel

failed to serve the complaint until more than three months after it

was filed. Pearl then filed a motion to dismiss the complaint for

lack of standing, failure to identify any aggrieved persons, and

failure to seek the proper relief.

NAACP failed to respond to Pearl's motion. Thirty-seven days

after the deadline for NAACP's response, the district court,

pursuant to the local rules, entered an order sua sponte requiring

NAACP to respond to the motion within eleven days and to show cause

why sanctions should not be imposed for failure to comply with the

local rules. NAACP again failed to respond to the district court's

order. Two days after the deadline for NAACP's response had

passed, the district court entered a nunc pro tunc order to allow

NAACP to file its response late.

However, NAACP never filed a response. Instead it sent a

request to Pearl's counsel and the district court acknowledging

that the complaint should be amended and requesting fifteen days to

amend it. A magistrate judge ordered that motions to amend be made

within approximately thirty days. NAACP never filed a motion to

amend or amended its complaint.

Pearl's counsel wrote twice to the district court, with copies

to NAACP's counsel, requesting that the court rule on its motion to

dismiss. Ten months after NAACP stated that it needed to amend its

complaint but failed to do so, the court finally dismissed NAACP's

claim without prejudice on the grounds that the complaint was

-2- insufficient and that NAACP had failed to reasonably prosecute its

claim.

NAACP contends that the district court erred in dismissing its

claim for want of prosecution.1 Although the district court

dismissed NAACP's claims without prejudice, NAACP claims that the

dismissal was actually with prejudice because its Title VII claim

will now be time barred.2 NAACP contends that the district court's

dismissal does not meet the tougher standards we apply on review of

claims dismissed with prejudice. We review a dismissal with

prejudice for failure to prosecute for abuse of discretion. Berry

v. Cigna/RSI-Cigna,

(5th Cir. 1992).

Recognizing the severity of a dismissal with prejudice, we will

affirm such dismissals for failure to prosecute "only when (1)

there is a clear record of delay or contumacious conduct by the

plaintiff, and (2) the district court has expressly determined that

lesser sanctions would not prompt diligent prosecution, or the

record shows that the district court employed lesser sanctions that

proved to be futile."

(footnote and citations

omitted). In most cases where we have affirmed a dismissal with

1 Because we affirm the dismissal for failure to prosecute, there is no need for us to consider NAACP's argument that the district court erred in dismissing its claim for failure to state a claim. 2 A party must bring an action under Title VII within ninety days of receiving a right-to-sue letter from the EEOC. Berry v. Cigna/RSI-Cigna,

(5th Cir. 1992). "If a Title VII complaint is timely filed pursuant to an EEOC right-to-sue letter and is later dismissed, the timely filing of the complaint does not toll the ninety-day limitations period."

(citing Price v. Digital Equip. Corp.,

(5th Cir. 1988)). Therefore, even if a complaint is dismissed without prejudice, if the litigant will thereafter be time-barred from bringing his claim, we will treat the dismissal as one with prejudice.

(citations omitted).

-3- prejudice there has been at least one of three aggravating factors:

(1) the delay is caused by the plaintiff herself, not her attorney;

(2) there is actual prejudice to the defendant; or (3) intentional

conduct causes the delay.

(quoting Price v. McGlathery,

(5th Cir. 1986)). Applying these standards to this

case, we find that the district court did not abuse its discretion.

Delay is defined as "significant periods of total inactivity."

Morris v. Ocean Systems Inc.,

(5th Cir. 1984).

We have been more ready to find delay where a plaintiff has failed

to comply with several court orders or rules as opposed to only a

few. See Berry,

-92 n.6 (cataloguing cases).

Here, NAACP has failed to comply with almost every order and

rule of the district court. We find that NAACP's failure to

properly respond to any of Pearl's motions or amend its complaint,

after acknowledging the need to, demonstrates the type of

intentional delay which warrants a dismissal with prejudice. Our

decision is solidified by our familiarity with NAACP's counsel and

his blatant refusal to follow court rules and orders both in the

district court and in our court.3 Counsel's failure to respond to

the district court's order to respond to Pearl's motion

demonstrates the type of intentional conduct which aggravates a bad

record of delay and indifference.

3 Our most recent case concerning this particular attorney concluded with the following statement: "[t]he court also notes that [this] attorney's conduct in the district court and in this court raises serious questions about his fitness to practice law. [C]ounsel is reminded of his duty to follow the governing rules of procedure, both in the district court and in this court. We caution counsel that this court has the power to discipline an attorney who fails to comply with these rules." Foxworth v. Trustmark National Bank, No. 94-60630 (5th Cir. June 28, 1995) (unpublished opinion).

-4- We commend the district court for its patience and generous

attempts to allow NAACP to rectify its errors and express our

concern for NAACP's counsel's blatant contempt for the judicial

process. As always, we regret penalizing a party for its counsel's

errors. However, "if an attorney's conduct falls substantially

below what is reasonable under the circumstances, the client's

remedy is against the attorney in a suit for malpractice. But

keeping this suit alive merely because plaintiff should not be

penalized for the omissions of his own attorney would be visiting

the sins of plaintiff's lawyer upon the defendant." Link v. Wabash

R. Co.,

,

,

(1962).

That we are not prepared to do.

II

For the foregoing reasons, the judgment of the district court

dismissing plaintiff's claims is AFFIRMED.

-5-