Smith v. Texas Children's Hospital , 74 F. App'x 422 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 11, 2003
Charles R. Fulbruge III
Clerk
No. 02-21167
Summary Calendar
JACKIE SMITH,
Plaintiff-Appellant,
versus
TEXAS CHILDREN’S HOSPITAL;
UNUM LIFE INSURANCE COMPANY OF AMERICA,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-98-CV-2341
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Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Jackie Smith appeals the district court’s order that granted
Texas Children’s Hospital’s motion filed pursuant to FED. R. CIV.
P. 41(b) to dismiss the complaint for lack of prosecution. Smith
asserts that the delay was not the result of her conduct, was not
intentional, and did not cause the defendants prejudice. Smith
argues that the delay was due to confusion caused by Texas
Children’s Hospital’s procedural maneuvers and the inability to
*
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that this opinion should not be published and is not precedent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. 02-21167
-2-
locate the record and determine the status of the case. Smith
asserts that the district court did not issue a warning prior to
the dismissal and that the dismissal with prejudice is a harsh
result.
This court reviews a FED. R. CIV. P. 41(b) dismissal for an
abuse of discretion. Dorsey v. Scott Wetzel Servs., 84 F.3d 170,
171 (5th Cir. 1996). A FED. R. CIV. P. 41(b) dismissal may be
affirmed “only upon a showing of a clear record of delay or
contumacious conduct by the plaintiff, . . . and where lesser
sanctions would not serve the best interest of justice.” Id.A stay was ordered in the proceedings pending resolution of
Texas Children’s Hospital’s appeal in No. H-94-2723. The opinion
dismissing that appeal was issued in June 1999. The instant
case, however, remained inactive until April 2002.
Smith does not allege that she did not receive notice of
this court’s 1999 opinion dismissing Texas Children’s Hospital’s
appeal in No. H-94-2723. Smith has been represented by the same
attorney in this matter since 1994. Smith has not shown that she
attempted to prosecute her case diligently from June 1999 to
April 2002. Accordingly, the district court’s order dismissing
the action is AFFIRMED. Texas Children’s Hospital’s motion to
strike affidavit is GRANTED; the requests for costs and fees are
DENIED.