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United States Court of Appeals,
Fifth Circuit.
No. 96-10722
Summary Calendar.
Ronald D. BANN, Plaintiff-Appellant,
v.
INGRAM MICRO, INC., Defendant-Appellee.
March 28, 1997.
Appeal from the United States District Court for the Northern
District of Texas.
Before JONES, DeMOSS and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge.
Plaintiff-Appellant Ronald D. Bann ("Bann") appeals the
district court's order dismissing his cause of action against
Defendant-Appellee Ingram Micro, Inc. ("Ingram") pursuant to
FED.R.CIV.P. 16(f). Finding that the district court abused its
discretion, we reverse.
FACTS
Bann filed this action against Ingram on December 27, 1995
alleging unlawful discrimination in violation of the Americans with
Disabilities Act. On April 24, 1996, 119 days after the filing of
the complaint, Bann effected service on Ingram. On April 26, 1996
the district court entered an order, stating:
It appears to the court that more than 120 days have elapsed
since the filing of plaintiff's complaint and that service on
the defendant in this case has not yet been accomplished.
Unless plaintiff shows cause in writing by May 10, 1996 why
this case should be retained on the docket, it will be
dismissed without further notice. See Local Rule of Practice
3.1(g) and Rule 4(m), Fed.R.Civ.P. SO ORDERED.
1

On May 13, 1996, because Bann had not responded to the show cause
order1, entered a second order stating:
Pursuant to this court's order to show cause issued April 26,
1996, plaintiff's claims are DISMISSED with prejudice. See
Rule 16(f), Fed.R.Civ.P. SO ORDERED.
On May 16, 1996, Bann filed a Return of Service evidencing that
Ingram had been served on April 24, 1996. On May 24, 1996 Bann
moved to reinstate the case. On June 11, 1996, while the motion to
reinstate was pending, Bann filed a notice of appeal. The district
court denied the motion to reinstate the case without discussion on
June 28, 1996.
DISCUSSION
Bann's notice of appeal, filed after the entry of the
judgment but before the disposition of his motion to reinstate the
case, was ineffective to appeal from the judgment until the entry
of the order disposing of that motion. FED.R.APP.P. 4(a)(4).
Appellate review of the order denying reinstatement is precluded
because Bann failed to amend the previously filed notice of appeal.
Id. This court's review is therefore limited to the district
court's May 13, 1996 Order of dismissal.
If service of the summons and complaint is not made upon a
defendant within 120 days after the filing of the complaint, the
1It is undisputed in the record that neither Bann nor his
current attorney received the order to show cause prior to the
court's order of dismissal. Ingram implies that Bann bears the
responsibility for this failure, because his original attorney did
not withdraw and his present attorney delayed in filing a notice of
appearance. For purposes of this appeal, we will assume, without
deciding, that Bann indeed failed to timely notify the court when
he changed attorneys.
2

court shall dismiss the action without prejudice or direct that
service be effected within a specified time, provided that if the
plaintiff shows good cause for the failure, the court shall extend
the time for service for an appropriate period. FED.R.CIV.P. 4(m);
Local Rule of Practice, Northern District of Texas, 3.1(g). The
show cause order warned that dismissal would result if Bann failed
to timely show cause why Ingram had not been served, specifically
referencing the Local Rule and the Federal Rule of Civil Procedure
that provide for dismissal without prejudice. The question before
this court is whether the district court abused its discretion in
dismissing the case with prejudice. Securities & Exchange
Commission v. First Houston Capital Resources Fund, Inc., 979 F.2d
380, 381-382 (5th Cir.1992).
The dismissal with prejudice can never be based on Rule
4(m)'s 120 day requirement. Ingram argues that it was within the
district court's discretion to impose the dismissal with prejudice
based on Rule 16(f). That Rule provides:
(f) Sanctions. If a party or party's attorney fails to obey
a scheduling or pretrial order, or if no appearance is made on
behalf of a party at a scheduling or pretrial conference ...
the judge ... may make such orders with regard thereto as are
just and among others [dismissing the action or rendering
judgment by default against the disobedient party].
A district court cannot impose the extreme sanction of dismissal
under Rule 16(f) unless the court first finds that a lesser
sanction would not have served the interests of justice.
Securities & Exchange Commission, 979 F.2d at 382. Dismissal with
prejudice is a drastic remedy to which a court may resort only in
extreme situations where there is a clear record of delay or
3

contumacious conduct by the plaintiff. Silas v. Sears, Roebuck &
Co., Inc., 586 F.2d 382, 385 (5th Cir.1978). Absent such a
showing, the trial court's discretion is limited to the application
of lesser sanctions designed to achieve compliance with court
orders and expedite proceedings. Id.
Having concluded that the order dismissing this case was not
just and exceeded the district court's discretion, we reverse and
remand the case to the district court for further proceedings.
REVERSED AND REMANDED.

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