IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________

m 99-30878 Summary Calendar _______________

LUIS HERRERA, Plaintiff-Appellant, VERSUS

COMPUTER SCIENCES CORPORATION, et al., Defendants,

COMPUTER SCIENCES CORPORATION, Defendant-Appellee. _________________________

Appeal from the United States District Court for the Eastern District of Louisiana (96-CV-3896-B) _________________________

January 26, 2000

Before SMITH, BARKSDALE, and date of October 20, 1997. On October 16, PARKER, Circuit Judges. Herrera moved for a continuance, citing mental unfitness to appear in court. The trial JERRY E. SMITH, Circuit Judge:* was rescheduled for April 6, 1998. On March 10, 1998, Herrera again moved for Luis Herrera sued for alleged violations of continuance because his attorney was title VII, but, after a bevy of delays, the suit undergoing surgery and was unable to attend. was dismissed for want of prosecution. He The court granted the continuance and set trial filed a motion for reconsideration of the for October 19, 1998. dismissal under FED. R. CIV. P. 60(b), which was denied. Finding no reversible error, we On October 13, 1998, perhaps predictably affirm. by now, Herrera’s counsel sought to withdraw because of “irreconcilable conflicts” with I. Herrera. The case was administratively closed In May 1997, the district court set a trial and the trial date continued, but this time with instructions to Herrera, before November 16, 1998, to enroll new counsel, provide medical reports illustrating his disability, and submit a * Pursuant to 5TH CIR. R. 47.5, the court has required pre-trial order. The court explained determined that this opinion should not be published that dismissal would follow a failure to and is not precedent except under the limited comply. Herrera’s first response came on circumstances set forth in 5TH CIR. R. 47.5.4. November 24, 1998, when two attorneys forbidden factors or omitted to consider some petitioned to enroll as his counsel. The court important relevant factor.” Tolliver v. granted leave, providing thirty days in which Northrop Corp.,

(7th Cir. CSC might “verify the medical information 1986). provided by plaintiff,” and provided Herrera “an additional thirty days” to submit a III. completed pre-trial order. Herrera builds his argument on a mistaken quotation. He quotes Clofer v. Perego, Herrera read these grants as conjunctive,

(5th Cir. 1997), for the providing an extra sixty days in which to proposition that “dismissals with prejudice are present the pre-trial order, while CSC and the reserved for the most egregious of cases where court intended only a thirty-day grant. the requisite factors of clear delay and Nevertheless, Herrera failed to meet even this ineffective lesser sanctions are bolstered by the self-extended deadline. Not until February 11, presence of at least one of the aggravating 1999, did he file anything more, this time in factors.” The actual passage from Clofer says the form of a motion to “determine the scope that “dismissals with prejudice are reserved for of the complaint” and to receive a further the most egregious of cases, usually cases extension of time to file the pre-trial order. where the requisite factors of clear delay and ineffective lesser sanctions are bolstered by the By judgment entered April 21, 1999, the presence of at least one of the aggravating district court denied Herrera’s motions. In the factors.” Clofer,

(emphasis added). exercise of its inherent power to dismiss claims Herrera’s misquote obfuscates the fact that for failure to prosecute, the court rendered dismissal of a motion with prejudice is judgment in favor of CSC and against Herrera, appropriate in cases in which clear delay, dismissing his claims. ineffective lesser sanctions, and at least one aggravating factor are not present. Under our On May 3, 1999, Herrera filed a motion for highly constrained standard of review, we reconsideration. The court dismissed the would be hard pressed, should one or more of motion “without prejudice to reurge.” Herrera these factors be lacking, to find that the district resubmitted it on July 21, 1999, following an court erred. unsuccessful settlement conference. The court Nevertheless, we do not find any factor again denied the motion. missing. The story of continuance after continuance, year upon year, which is briefly II. outlined above, constitutes “clear delay.” That Appeal of the denial of a motion for lesser sanctions have proven ineffective is reconsideration filed more than ten days after demonstrated by the fact that the district court, a grant of judgment is treated as an appeal of in its patience, cajoled and warned Herrera, the denial of a motion under FED. R. CIV. P. and specifically ordered definitive progress at 60(b). Lavespere v. Niagara Mach. & Tool definitive times, all without effect. Works, Inc.,

(5th Cir. 1990). On appeal of the denial of a rule 60(b) Finally, the “aggravating factors” of which motion, “our review is limited to whether the Clofer speaks “include (1) delay resulting from [d]istrict [c]ourt abused its discretion in intentional conduct, (2) delay caused by the denying the . . . motion.” Ta Chi Navigation plaintiff personally, and (3) delay causing (Panama) Corp., S.A. v. United States, 728 prejudice to the defendant.”

The court F.2d 699, 703 (5th Cir. 1984). The denial of found that the delays in this case redounded a rule 60(b) motion “does not bring up the “solely” to the responsibility of the Herrera, underlying judgment for review.”

Thus, rather than to his old or new counsel. “[t]he decision under Rule 60(b) is discretion piled on discretion, and . . . such doubly New counsel objects to this discretionary decisions stand unless the judge characterization. Whether the responsibility is was very far off baseSSif the judge relied on “solely” Herrera’s, though, is beside the point.

2 The record indicates that at least some of the delays are directly his fault, as when he claimed a mental state too frail to proceed, but then refused to be examined by the defendant’s doctors unless the meeting was recorded. This is not only “intentional” conduct, but is also conduct “caused by him personally.”

It goes without saying, meanwhile, that years of delay and continued litigation, or the threat thereof, caused prejudice to CSCSSthe prejudice of foggy memories, absent witnesses, and increased legal bills. So, though the Clofer court did not pretend, as Herrera would have had it do, that its list of “aggravating factors” was exhaustive, Herrera nonetheless seems to have aggravated in every stated way.

Under these circumstances, we can hardly find that the district court abused its substantial realm of discretion in dismissing this case with prejudice. AFFIRMED.

3