Hickman v. Fox TV Stations Inc

United States Court of Appeals
Fifth Circuit
F I L E D
April 21, 2006
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 05-20608
Summary Calendar
_______________
RENEE HICKMAN,
Plaintiff-Appellant,
VERSUS
FOX TELEVISION STATION, INC.; KRIV TV FOX 26,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
m 4:04-CV-1936
______________________________
Before SMITH, GARZA, and PRADO,
Circuit Judges.
PER CURIAM:*
Renee Hickman appeals the dismissal of her
employment discrimination suit. Finding no
error, we affirm.
I.
Hickman sued her former employer, Fox
Television Station, Inc., and KRIV TV Fox 26
( collectively “Fox”), alleging race and sex dis-
crimination, hostile work environment, and
prohibited retaliation under title VII of the
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.

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Civil Rights Act of 1964. She now lives and
works in Kuwait.
The magistrate judge, to whom the case
was referred by agreement, dismissed Hick-
man’s suit for failure to prosecute and repeat-
ed neglect of discovery orders. Hickman’s
persistent delinquency throughout the discov-
ery process is well catalogued in the court’s
memorandum opinion.
In summary, Hickman filed her witness list
with the court over one month after the dead-
line set by court order. She did not respond to
Fox’s initial interrogatories and production re-
quests until more than a month after the
agreed-upon date. The responses were unveri-
fied and incomplete. When ordered to amend
her responses, Hickman failed to produce the
audio tapes that were the chief evidence on
which she based her allegations.
The court granted Fox’s motion to compel
production of the tapes and all other relevant
responses to its initial discovery requests. De-
spite numerous promises to do so, Hickman
never produced the tapes, in direct contraven-
tion of the court’s order. She claimed the
tapes were locked in storage and that her law-
yers could not retrieve them because she had
the only key and was in Kuwait.
Because of Hickman’s failure to respond
fully to discovery, her first deposition was in-
adequate. On April 29, 2005, the court gave
her ten days to set a date for a second deposi-
tion, but she failed to do so. A month later,
her counsel informed the court that Hickman
could not return to the United States for a
deposition until at least February 2006.
Fox moved to dismiss, reasoning that Hick-
man had failed to prosecute her case and had
violated a number of orders. In response,
Hickman moved for a continuance so she
could complete her work assignment in Ku-
wait before proceeding further. She could not
provide a firm date by which she could be
available, and her deposition testimony indi-
cated that she planned to work in Kuwait inde-
finitely. The court denied the motion for con-
tinuance and dismissed the case without preju-
dice.
II.
Although the district court dismissed with-
out prejudice, it also correctly noted that be-
cause the statute of limitations has expired on
most of Hickman’s claims, the dismissal of
those claims will be treated on appeal as a dis-
missal with prejudice. See Berry v. CIG-
NA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th
Cir. 1992).
We review for abuse of discretion a dis-
missal with prejudice for failure to prosecute.
Price v. McGlathery, 792 F.2d 472, 474 (5th
Cir. 1986). We will affirm dismissals with pre-
judice for failure to prosecute where (1) there
is a plain record of delay or contumacious
conduct by the plaintiff and (2) the district
court has expressly determined that lesser
sanctions would not prompt diligent prosecu-
tion, or the record shows that the court em-
ployed lesser sanctions that proved to be futile.
Berry, 975 F.2d at 1191 (citing Callip v.
Harris County Child Welfare Dep’t, 757 F.2d
1513, 1519 (5th Cir. 1985)); Stearman v.
Comm’r, 436 F.3d 533, 535 (5th Cir. 2006
(per curiam). This court also generally looks
for at least one of three aggravating factors:
(1) delay caused by the plaintiff and not his
attorney; (2) actual prejudice to the defendant;
or (3) delay caused by intentional conduct.
Price, 792 F.2d at 474.
The magistrate judge issued a detailed opin-
ion explaining the legal and factual basis for

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the dismissal. That opinion documents Hick-
man’s repeated failure to comply with dis-
covery orders and her persistent unwillingness
to make herself available in person to be de-
posed after being ordered to do so. We have
upheld dismissals with prejudice in cases in
which the plaintiff exhibited similar disregard
for the court’s orders.1 The court applied the
correct legal test and determined that Hick-
man’s actions amounted to “contumacious
conduct.” The court also expressly found that
lesser sanctions would not prompt a more
expeditious prosecution of the case. Those
determinations are supported by the record
and are not an abuse of discretion.
All three aggravating factors are present
here. The delay was caused by Hickman, not
her attorneys. She failed to arrange for the au-
dio tapes to be removed from storage after be-
ing ordered to produce them, and she refused
to make herself available for a deposition in
accordance with the court-ordered time line.
This behavior was plainly intentional and pre-
judiced Fox by forcing it to spend unnecessary
legal fees in the preparation of discovery re-
quests and depositions that were rendered
fruitless by Hickman’s intentional delay.
AFFIRMED.
1 See, e.g., Price, 792 F.2d at 474-75 (finding
contumacious conduct where counsel failed to file
pretrial order, failed to appear at a pretrial confer-
ence, and failed for almost a year to certify that he
would comply with orders); Callip v. Harris Coun-
ty Child Welfare Dep’t, 757 F.2d 1513, 1521 (5th
Cir. 1985) (finding contumacious conduct where
counsel failed to comply with numerous deadlines).

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