Bann v. Ingram Micro, Inc., 108 F.3d 625 (5th Cir. 1997). · Go Syfert
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Bann v. Ingram Micro, Inc., 108 F.3d 625 (5th Cir. 1997). Cases Citing This Book View Copy Cite
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cited 2× by 1 distinct case, last quoted 2005 · …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. ✓
cited 2× by 2 distinct cases, 2005–2012 · 2 courts · …the dismissal with prejudice can never be based on rule 4(m)'s 120 day requirement. at p. 626 ✓
33 citation events (27 in the last 25 years) across 9 distinct courts.
Strongest positive: Mitchell v. Director TDCJ-CID (txed, 2024-05-29)
Treatment trajectory · 1998 → 2026 · click a year to view as-of
1998 2012 2026
Top citers, strongest first. 22 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) Mitchell v. Director TDCJ-CID
E.D. Tex. · 2024 · quote attribution · 1 verbatim quote · confidence high
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.
discussed Cited as authority (rule) Jacob Barnes v. Dresser LLC et al; D&J Investments of Cenla LLC v. Dresser LLC et al; Ray Arnold v. Dresser LLC et al
W.D. La. · 2025 · confidence medium
P. 16(f); see also Culwell v. City of Fort Worth, 468 F.3d 868, 871 (5th Cir. 2006); Bann v. Ingram Micro, Inc., 108 F.3d 625, 627 (5th Cir. 1997).6 But although some courts analyze 6 The standard for dismissal under Rule 16(f) is the same standard used when evaluating dismissal for failure to prosecute under Rule 41(b).
discussed Cited as authority (rule) Jacob Barnes v. Dresser LLC et al; D&J Investments of Cenla LLC v. Dresser LLC et al; Ray Arnold v. Dresser LLC et al
W.D. La. · 2025 · confidence medium
P. 16(f); see also Culwell v. City of Fort Worth, 468 F.3d 868, 871 (5th Cir. 2006); Bann v. Ingram Micro, Inc., 108 F.3d 625, 627 (5th Cir. 1997).6 But although some courts analyze 6 The standard for dismissal under Rule 16(f) is the same standard used when evaluating dismissal for failure to prosecute under Rule 41(b).
cited Cited as authority (rule) Rojo v. Burger One LLC
N.D. Tex. · 2023 · confidence medium
Bann v. Ingram Micro, Inc., 108 F.3d 625, 627 (5th Cir. 1997).
discussed Cited as authority (rule) Dvorak v. Dvorak
N.D. · 2007 · confidence medium
Construing the identical federal rule, the Federal Circuit Court of Appeals in Texas Peanut Farmers v. United States, 409 F.3d 1370, 1375 (Fed.Cir.2005), concluded the party intending to challenge an order disposing of any motion listed in the rule must file a notice of appeal or an amended notice of appeal within the time prescribed in by rule and “[t]he courts have uniformly held that the taking of an appeal within the prescribed time is mandatory and jurisdictional.” See also Sorensen v. City of New York, 413 F.3d 292, 295-96 (2nd Cir.2005); Pierce v. Shorty Small’s of Branson, Inc., …
discussed Cited as authority (rule) Dockum v. Wal-Mart Stores Texas, LP
5th Cir. · 2007 · confidence medium
When the extreme remedy of dismissal is sought under Rule 16(f), the party seeking such relief must demonstrate “a clear record of delay or contumacious conduct by the [opposing party],” Bann v. Ingram Micro, Inc., 108 F.3d 625, 627 (5th Cir.1997), or that no lesser order would “permit the court to fulfill its obligation to administer justice expeditiously,” Silas v. Sears, Roebuck & Co., 586 F.2d 382, 386 (5th Cir.1978).
discussed Cited as authority (rule) In Re: Ross
5th Cir. · 2005 · confidence medium
Co. of Tex., 310 F.3d 865, 868 (5th Cir.2002) ("Rule 4(a)(4) suspends the time for review by this Court because, until the district court addresses all post-judgment motions specified by the rule, it has not entirely finished with a case."); Bann v. Ingram Micro, Inc., 108 F.3d 625, 626 (5th Cir.1997) ("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."); Burt v. Ware, 14 F.3d 256, 258 (5th Cir.1994) (treating a notice o…
discussed Cited as authority (rule) Ross v. Marshall
5th Cir. · 2005 · confidence medium
Co. of Tex., 310 F.3d 865, 868 (5th Cir.2002) ("Rule 4(a)(4) suspends the time for review by this Court because, until the district court addresses all post-judgment motions specified by the rule, it has not entirely finished with a case.”); Bann v. Ingram Micro, Inc., 108 F.3d 625, 626 (5th Cir.1997) ("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.”); Burt v. Ware, 14 F.3d 256, 258 (5th Cir.1994) (treating a noti…
cited Cited as authority (rule) Bowling v. Hasbro, Inc.
Fed. Cir. · 2005 · confidence medium
Bann v. Ingram Micro, Inc., 108 F.3d 625, 626 (5th Cir.1997) (“The dismissal with prejudice can never be based on Rule 4(m)’s 120 day requirement.”).
cited Cited as authority (rule) Ganesan v. James
5th Cir. · 2003 · confidence medium
Bann v. Ingram Micro Inc., 108 F.3d 625, 626 (5th Cir.1997).
cited Cited as authority (rule) Zermeno v. McDonnell Douglas Corp.
S.D. Tex. · 2003 · confidence medium
Bann v. Ingram Micro, Inc., 108 F.3d 625, 626 (5th Cir.1997).
discussed Cited as authority (rule) Colby v. Town of Henniker, et al. (2×)
D.N.H. · 2001 · confidence medium
Ingram Micro, Inc., 108 F.3d 625, 626 (5th Cir. 1997).
cited Cited as authority (rule) Slaughter v. Guinn
5th Cir. · 2000 · confidence medium
App. P. 4(a)(4)(B)(ii); Bann v. Ingram Micro, Inc., 108 F.3d 625, 626 (5th Cir. 1997).
discussed Cited as authority (rule) Young v. Cain
5th Cir. · 2000 · confidence medium
App. P. 4(a)(4)(B)(ii); Bann v. Ingram Micro, Inc., 108 F.3d 625, 626 (5th Cir. 1997); Reeves v. Collins, 27 F.3d 174, 177 (5th Cir. 1994); see also Castaneda v. Falcon, 166 F.3d 799, 780 (5th Cir. 1999)(“we must always be sure of our appellate jurisdiction and, if there is doubt, we must address it, sua sponte if necessary.”).
discussed Cited as authority (rule) O'ROuRke Bros. Inc., an Iowa Corporation, and Jeff O'ROuRke v. Nesbitt Burns, Inc., a Canadian Corporation, Andreas F. Kiedrowski, and John C. Dunn
7th Cir. · 2000 · confidence medium
Again, no concern is voiced over the court’s power to dismiss *953 with prejudice, only over whether such a dismissal is an abuse of discretion. 2 A similar approach can be seen in Bann v. Ingram Micro, Inc., 108 F.3d 625, 627 (5th Cir.1997), in which the dismissal with prejudice was ordered under Rule 16(f) for a failure to show cause for not obtaining service.
discussed Cited "see" Culwell v. City of Fort Worth (2×)
5th Cir. · 2006 · signal: see · confidence high
See Bann v. Ingram Micro, Inc., 108 F.3d 625, 626 (5th Cir.1997).
cited Cited "see" Moody v. Experian Information
5th Cir. · 2003 · signal: see · confidence high
See Bann v. Ingram Micro, Inc., 108 F.3d 625, 626 (5th Cir. 1997).
cited Cited "see" Knod v. Roberts
5th Cir. · 1999 · signal: see · confidence high
See Bann v. Ingram Micro, Inc., 108 F.3d 625, 626 (5th Cir. 1997); Fed.
cited Cited "see" Scott Mc Cord. v. H. Christian Debruyn. Commissioner Robert A. Farley Lori A. Ditmer All Sued in Their Individual and Official Capacities
7th Cir. · 1998 · signal: see · confidence high
See Bann v. Ingram Micro, Inc., 108 F.3d 625, 627 (5th Cir.1997) (dismissal under Rule 16(f) is improper unless the court first finds that a lesser sanction will not serve the interests of justice).
discussed Cited "see, e.g." Robert McClure v. J. Turner
5th Cir. · 2012 · signal: see also · confidence medium
Fed.R.Civ.P. 4(m) (providing for dismissal without prejudice); see also Bann v. Ingram Micro, Inc., 108 F.3d 625, 626 (5th Cir.1997) (“The dismissal with prejudice can never be based on Rule 4(m)'s 120 day requirement.”). 4 .
cited Cited "see, e.g." Baker v. American Airlines, Inc.
5th Cir. · 2005 · signal: compare · confidence medium
Compare Bann v. Ingram Micro, Inc., 108 F.3d 625, 627 (5th Cir.1997) (imposing the requirement for dismissal with prejudice) with O’Neill, 74 F.3d at 96 (imposing no requirements for costs).
discussed Cited "see, e.g." Simmons v. Reliance Standard Life Insurance
5th Cir. · 2002 · signal: see, e.g. · confidence medium
P. 4(a)(4)(B); see, e.g., Bann v. Ingram Micro, Inc., 108 F.3d 625, 626 (5th Cir.1997) (“[The plaintiffs] 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.”); Lauderdale County Sch.
Retrieving the full opinion text from the archive…
Bann
v.
Ingram Micro, Inc.
96-10722.
Court of Appeals for the Fifth Circuit.
Mar 28, 1997.
108 F.3d 625
DeMOSS, Jones, Parker.
Published
[*626] 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 plaintiffs 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.

On May 13, 1996, because Bann had not responded to the show cause order, [1] the district court entered a second order stating:

Pursuant to this court’s order to show cause issued April 26, 1996, plaintiffs 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 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, 8.1(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, 381-882 (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],

[*627] 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 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 ease to the district court for further proceedings.

REVERSED AND REMANDED.

1

. It 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.