Orduna v. TX Cmsn Alcohol Drug, et al

United States Court of Appeals
Fifth Circuit
F I L E D
February 22, 2007
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 06-20555
Summary Calendar
_______________
JOSEPH C. ORDUNA,
Plaintiff-Appellant,
VERSUS
THE TEXAS COMMISSION ON ALCOHOL AND DRUG ABUSE
AND
JIM MCDADE,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
m 4:01-CV-1474
______________________________

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2
Before SMITH, WIENER, and OWEN,
Circuit Judges.
PER CURIAM:*
The district court dismissed Joseph Ordu-
na’s case against the Texas Commission on Al-
cohol and Drug Abuse (“TCADA”) and Jim
McDade for lack of prosecution under Federal
Rule of Civil Procedure 41(b). We affirm.
I.
Orduna sued the State of Texas and
TCADA in April 2000. He amended his peti-
tion in March 2001 and May 2001, nonsuiting
the state and adding McDade, Golden Leader-
ship Academy, and Richard Johnson as defen-
dants.
The matter was removed to federal court,
and Orduna obtained leave to depose McDade
and conduct limited discovery, but he took no
action pursuant to that permission. He ob-
tained a default judgment against Golden
Leadership Academy and Johnson in March
2002, and the court entered final judgment as
to them.
In September 2002, the district clerk’s of-
fice accidentally closed the case as to all defen-
dants, including TCADA and McDade. Or-
duna took no action for three years1 until the
district court, in January 2006, noticed the
case had been mistakenly closed and asked Or-
duna whether he intended to pursue claims
against TCADA and McDade. After a hear-
ing, Orduna filed a motion to re-open against
TCADA and McDade, and the court granted
the motion.
TCADA and McDade then moved for dis-
missal under rule 41(b)2 for failing to prose-
cute. The court granted the motion, finding
that Orduna’s inactionSSnot the clerk’s er-
rorSShad caused the delay, because (1) Ordu-
na should have known it did not take three
years for the court to set a trial date; (2) the
clerk’s error of closing the case was a matter
of public record; and (3) Orduna had not con-
ducted any discovery or filed any pleadings.
Further, the court found that Orduna’s inac-
tion had hampered the discovery process in
such a way that would prejudice TCADA and
McDade.3
II.
We review for abuse of discretion a dis-
missal for lack of prosecution. Tello v.
Comm’r, 410 F.3d 743, 744 (5th Cir.), cert.
denied, 126 S. Ct. 381 (2005). The standard
to evaluate dismissals for lack of prosecution
* 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.
1 Orduna claims he was delaying because he
was waiting for the court to set a trial date.
2 That rule states:
For failure of the plaintiff to prosecute or to
comply with these rules or any order of court, a
defendant may move for dismissal of an action
or of any claim against the defendant. Unless
the court in its order for dismissal otherwise
specifies, a dismissal under this subdivision and
any dismissal not provided for in this rule, other
than a dismissal for lack of jurisdiction, for im-
proper venue, or for failure to join a party un-
der Rule 19, operates as an adjudication upon
the merits.
3 After TCADA and McDade were added to the
suit, the legislature dissolved TCADA, and Mc-
Dade has retired.

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is plain:
Dismissals with prejudice for failure to pro-
secute are proper only where (1) there is a
clear record of delay or contumacious con-
duct by the plaintiff and (2) the district
court has expressly determined that lesser
sanctions would not prompt diligent prose-
cution, or the record shows that the district
court employed lesser sanctions that proved
to be futile. In most cases, a plain record
of delay or contumacious conduct is found
if one of the three aggravating factors is
also present: (1) delay caused by the plain-
tiff; (2) actual prejudice to the defendant; or
(3) delay as a result of intentional conduct.
Stearman v. Comm’r, 436 F.3d 533, 535 (5th
Cir.) (per curiam), cert. denied, 126 S. Ct.
2900 (2006) (internal citations omitted).
Orduna took no action for four and a half
years.4 To conduct discovery or file pleadings,
he did not need the court to set a trial date, so
he caused the delay. Also, TCADA would
suffer “actual prejudice,” because it no longer
exists as an entity. The district court had dis-
cretion to dismiss Orduna’s claims, and based
on the guiding standard, it did not abuse that
discretion.
The judgment of dismissal is AFFIRMED.
4 Prolonged inactivity is sufficient to warrant
dismissal in this case. See Harrelson v. United
States, 613 F.2d 114, 116 (5th Cir. 1980) (per cur-
iam) (“In light of the significant inactivity of the
plaintiff, we cannot say the district court abused its
discretion in dismissing the complaint.”).

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