IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-10238 Conference Calendar

RON MCCLURE,

Plaintiff-Appellant,

versus

C. R. ENGLAND & SONS, INC.,

Defendant-Appellee.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 4:98-CV-147-Y --------------------

October 19, 1999

Before JONES, SMITH, and STEWART, Circuit Judges.

PER CURIAM:*

Ron McClure appeals the granting of defendant’s Rule 60(b)

motion to amend the final judgment from a dismissal without

prejudice to a dismissal with prejudice of McClure’s pro se

action alleging a violation of the Fair Labor Standards Act.

McClure argues that the district court abused its discretion in

granting the Rule 60(b) motion because of misconduct by C.R.

England during discovery.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 99-10238 -2-

The district court did not abuse its discretion in granting

the Rule 60(b) motion because McClure engaged in clear delay and

contumacious conduct and a dismissal with prejudice was the

appropriate remedy. See Halicki v. Louisiana Casino Cruises,

Inc.,

(5th Cir. 1998), cert. denied,

(1999); Coane v. Ferrara Pan Candy Co.,

(5th Cir. 1990). McClure disregarded the Federal Rules of Civil

Procedure, abused the discovery process by acting in

contravention of the initial scheduling order, engaged in further

abuse of the discovery process following a protective order, and,

following his dismissal without prejudice, re-filed his case in

an effort to escape sanctions for his behavior.

McClure has moved for the award of reasonable costs. The

motion is DENIED because McClure is not entitled to an award of

costs. See Fed. R. App. P. 39(a)(2).

AFFIRMED. MOTION DENIED.