IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 96-40387 Summary Calendar _____________________

UNITED STATES EX REL, SHAWN KOVACK, on behalf of themselves and all those similarly situated, and in the public interest, UNITED STATES EX REL, KRISTINE STARK, on behalf of themselves and all those similarly situated, and in the public interest,

Plaintiffs-Appellants,

versus

AT&T,

Defendant-Appellee.

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Appeal from the United States District Court for the Southern District of Texas (C-96-CV-53) _______________________________________________________ December 6, 1996

Before REAVLEY, JONES and STEWART, Circuit Judges.

PER CURIAM:*

Shawn Kovack and Christine Stark appeal the district court’s

orders dismissing their complaint and denying reconsideration of

their complaint against AT&T for allegedly overbilling calls from

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. public telephones in excess of published rates, in violation of

47 U.S.C. 151 et seq.

The district court dismissed appellants’ suit with prejudice

when they failed to appear for a pre-trial conference. The

complaint was filed on January 29. On January 30 the court

ordered an initial scheduling conference for February 16, and on

February 6 the conference was reset for February 20. Appellant

Stark told the court that they were instructed by court personnel

to send a letter from their home in Pennsylvania to postpone the

conference. Later, told to file a motion, they did. Thereafter,

appellants say that Kovack was unable to attend the conference

because of being in official custody and Stark had to attend her

seriously injured brother in Washington, D.C. Nevertheless, the

court dismissed the case on February 20. There being no clear

record of delay or contumacious conduct by plaintiffs, dismissal

was an abuse of discretion. See John v. State of Louisiana,

(5th Cir. 1987).

Judgment vacated, cause remanded.

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