NAACP v. Pearl River Valley ( 1995 )

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 95-60037
(Summary Calendar)
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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opinion should not be published.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
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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, 975 F.2d 1188, 1191 (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." Id. at 1191 (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, 975
F.2d 1188, 1191 (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." Id. (citing
Price v. Digital Equip. Corp., 846 F.2d 1026, 1027 (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. Id. (citations omitted).
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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. Id. (quoting Price v. McGlathery, 792
F.2d 472, 474 (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., 730 F.2d 248, 252 (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, 975 F.2d at 1191-92 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).
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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., 370 U.S. 626, 630, 82 S. Ct. 1386, 8 L. Ed. 2d 734 (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.
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