UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-30161 Summary Calendar

PAUL CARTER,

Plaintiff-Appellant,

VERSUS

DIALYSIS CLINIC, INC.,

Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of Louisiana (98-CV-3398-B) October 5, 2000 Before EMILIO M. GARZA, STEWART, and PARKER Circuit Judges.

PER CURIAM:*

Plaintiff Paul Carter appeals the district court’s order

dismissing his suit against Dialysis Clinic, Inc. with prejudice.

We conclude that the district court did not abuse its discretion

and affirm.

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

1 I.

On March 18, 1999, the district court issued a minute entry,

which established a timetable for completing discovery and

designating experts and which set dates for the pretrial conference

and the trial. Thereafter, the defendant served discovery requests

on the plaintiff. Prompted by plaintiff’s ongoing refusal to

respond to repeated discovery requests, the defendant filed a

motion to compel on August 30, 1999. The district judge granted

the motion, which ordered the plaintiff to respond by October 15,

1999. Carter’s attorney did not answer.

On December 2, 1999, the attorney failed to appear at a

scheduled settlement conference. The magistrate judge then tried

to contact the attorney, but another lawyer at the attorney’s firm

told the judge that the firm no longer represented Mr. Carter. In

fact, Carter had retrieved his file from the firm in October of

1999. However, Carter’s attorney never submitted a motion to

withdraw and, therefore, was still listed as counsel of record.

Carter’s attorney eventually filed a motion to withdraw on December

8, 1999, the same day as the hearing on defendant’s Motion to

Dismiss.

Carter’s attorney never opposed the defendant’s Motion to

Dismiss, which was filed on November 5, 1999. Furthermore, the

attorney failed to appear at the pretrial conference scheduled for

December 9, 1999. As a result of counsel’s failure to comply with

court orders and to appear at scheduled hearings, the district

2 judge granted defendant’s Motion to Dismiss.

II.

Rule 41(b) and Rule 37(b)(2) of the Federal Rules of Civil

Procedure allow a district court to dismiss actions with prejudice

for a litigant’s failure to comply with court orders. While

dismissal is a severe penalty, we have upheld this sanction when

“the history of a particular case discloses both (1) a clear record

of delay or contumacious conduct by the plaintiff, and (2) that a

lesser sanction would not better serve the best interests of

justice.” McNeal v. Papasan,

(5th Cir. 1988).

See Sturgeon v. Airborne Freight Corp.,

(5th

Cir. 1985). “In close cases we have often looked to proof of one

of the following ‘aggravating factors’-- (1) the plaintiff’s

personal contribution to the delay, (2) the defendant’s actual

prejudice because of the delay, and (3) delay that can be

characterized as intentional.”

Dismissal may be appropriate

even when the client shares little of the blame for an attorney’s

conduct. See Dorsey v. Scott Wetzel Serv., Inc.,

(5th

Cir. 1996)(per curiam); Woodson v. Surgitek,

(5th Cir. 1995); Link v. Wabash R.R. Co.,

(1962).

The facts of the case at hand clearly establish the elements

required to uphold a district court’s decision to dismiss. From

the time the court issued the minute entry to the moment the judge

dismissed the case, Carter’s attorney allegedly failed to perform

3 almost all of his obligations in the suit. During this period, the

attorney disobeyed the court’s order compelling discovery, failed

to provide expert reports and witness lists, and declined to take

action with regard to the defendant’s Motion to Dismiss. We find

that such inaction establishes a clear record of delay and that the

record demonstrates contumacious conduct through an “obstinate

disrespect for the judicial process.” McNeal,

.

In addition, we find that the delay prejudiced the defendant

by prohibiting the defendant’s counsel from carrying the case

forward in a timely manner. We agree with the district court’s

determination that lesser sanctions would not serve the best

interests of justice. While we recognize that Carter may not be to

blame for his attorney’s conduct, we also must contend with the

adverse consequences that result from limiting district courts’

discretion to levy the harshest of sanctions against attorneys who

callously and continuously disobey court orders and fail to appear

at scheduled hearings. We conclude that the district court did not

abuse its discretion by dismissing the case with prejudice and

affirm.

AFFIRMED

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