Explicit Warnings Suffice as “Lesser Sanctions”: Fifth Circuit Affirms Rule 41(b) Dismissal for Repeated Defiance of Deposition Orders in Lee v. Southwest Airlines

Introduction

This commentary examines the Fifth Circuit’s unpublished, per curiam decision in Lee v. Southwest Airlines Company (No. 24-20346, Sept. 29, 2025), affirming a with-prejudice dismissal under Federal Rule of Civil Procedure 41(b) for failure to prosecute and failure to obey court orders. The decision underscores two central propositions:

Repeated refusal to sit for a deposition and willful noncompliance with clear, explicit court orders constitutes “contumacious conduct” sufficient to meet Rule 41(b)’s first requirement for the harsh sanction of dismissal with prejudice.
Explicit warnings—given multiple times and ignored—qualify as “lesser sanctions,” satisfying Rule 41(b)’s second requirement that lesser sanctions would not prompt diligent prosecution.

The plaintiff, Tambria Lee, filed discrimination and retaliation claims against Southwest Airlines relating to events surrounding a fitness-for-duty examination, subsequent termination, and later arbitration-based reinstatement. But the case never reached the merits. Instead, the appellate court affirmed the district court’s dismissal after Lee failed to complete two depositions, disregarded multiple court directives, and persisted in a pattern of defiance despite clear warnings that noncompliance would result in dismissal.

Summary of the Opinion

The Fifth Circuit affirmed the district court’s dismissal with prejudice under Rule 41(b). Applying Fifth Circuit standards articulated in Berry v. CIGNA/RSI-CIGNA, the court held:

There was a clear record of delay and contumacious conduct. Lee repeatedly evaded depositions and willfully disobeyed two detailed orders from the magistrate judge, even after being warned that noncompliance would lead to dismissal.
Lesser sanctions would not have prompted diligent prosecution. The magistrate judge employed lesser sanctions—including explicit warnings and repeated extensions—and they proved futile; Lee continued not to comply.

The court noted at least one “aggravating factor” typically present when dismissal with prejudice is affirmed: the delay was attributable to the plaintiff herself, not to her counsel. Because Rule 41(b) sufficed, the court did not reach whether dismissal was also independently supported under Rule 37(b)(2)(A). All pending motions were denied as moot.

Case Background and Procedural Posture

Employment history: Lee, a flight attendant hired by Southwest in 2001, took multiple leaves in 2017 (about 150 days). After an FDE requirement and a dispute over a release form, Southwest terminated her in 2018 for alleged misconduct at the clinic. An arbitration in 2019 ordered her reinstatement with backpay.
Litigation: In June 2021, Lee sued for age and disability discrimination and retaliation. Over time, three sets of attorneys entered and later withdrew, citing Lee’s refusal to follow advice, disrespect, and pursuit of imprudent strategies.
Discovery friction: Two depositions failed—one canceled days before due to a vacation; another aborted after Lee left following the first question claiming she needed medical attention, a claim she later failed to substantiate.
Court directives and warnings: On September 27, 2023, the magistrate judge ordered specific steps (including sworn responses under penalty of perjury, documentation regarding missed deposition dates, and four dates for a full-day deposition), extended deadlines, and warned of dismissal for noncompliance. Lee did not substantially comply. On November 30, the magistrate judge repeated the directives, again warned of dismissal, and set a deposition in his courtroom for January 10, 2024. Lee again failed to comply.
Sanctions: Southwest twice moved to dismiss as a sanction. The magistrate judge recommended dismissal. The district court adopted the recommendation and entered final judgment with prejudice. Lee appealed pro se. The Fifth Circuit affirmed.

Analysis

Precedents Cited and Their Influence

Link v. Wabash R.R. Co. (U.S. 1962): Establishes courts’ inherent power to manage dockets and dismiss for failure to prosecute. The Fifth Circuit anchored its Rule 41(b) analysis in this principle of judicial case-management authority.
Berry v. CIGNA/RSI-CIGNA (5th Cir. 1992): Provides the two-part test for Rule 41(b) dismissal:
1. a clear record of delay or contumacious conduct; and
2. a finding that lesser sanctions would not prompt diligent prosecution or a record showing lesser sanctions were tried and failed.
Berry also identifies “aggravating factors” often present when affirming a with-prejudice dismissal: delay attributable to the plaintiff, actual prejudice to the defendant, or intentional conduct. The court applied Berry directly to Lee’s pattern of conduct and highlighted the aggravating factor that the delay was caused by Lee personally.
Rogers v. Kroger Co. (5th Cir. 1982): Catalogs examples of lesser sanctions (fines, costs, conditional dismissal, dismissal without prejudice, explicit warnings) and connects contumacious conduct to protecting the “integrity of the judicial process.” The Fifth Circuit leaned on Rogers to emphasize that explicit warnings—employed here repeatedly—are recognized lesser sanctions.
McNeal v. Papasan (5th Cir. 1988) and John v. Louisiana (5th Cir. 1987): “Stubborn resistance to authority” justifies dismissal with prejudice. The panel framed Lee’s conduct as precisely that kind of persistent defiance.
Nottingham v. Warden, Bill Clements Unit (5th Cir. 2016): Affirms Rule 41(b) dismissal where a litigant twice flouted clear orders, rejecting “confusion” as an excuse when directions are explicit. The court found Lee’s conduct even more defiant than Nottingham because she acknowledged the orders and then questioned and disobeyed them.
Griggs v. S.G.E. Mgmt., L.L.C. (5th Cir. 2018) and Gates v. Strain (5th Cir. 2018): Illustrate contumacious conduct (refusal to arbitrate; years-long evasion of law enforcement) supporting Rule 41(b) dismissals. These examples bracket Lee’s conduct on the spectrum of defiance warranting dismissal.
Burden v. Yates (5th Cir. 1981): Characterizes dismissal with prejudice as a “severe sanction” to be used only where lesser sanctions would not better serve the interests of justice. The Fifth Circuit used this admonition as a lens for its abuse-of-discretion review and then concluded the record here met that threshold.
Lopez v. Aransas County ISD (5th Cir. 1978) and Moore v. CITGO Refin. & Chems. Co. (5th Cir. 2013): Emphasize the district court’s broad discretion and the abuse-of-discretion standard for Rule 37/41 dismissals, setting the deferential backdrop for affirmance.
Johnson v. Jones (5th Cir. 2019) (unpublished): Notes that a single, isolated failure to comply typically does not warrant dismissal with prejudice—highlighting the contrast with Lee’s repeated, multi-faceted noncompliance.

Legal Reasoning

The Fifth Circuit’s analysis tracks Berry’s two-part test and the related aggravating factors:

Clear record of delay or contumacious conduct.
- Deposition evasion: One deposition canceled days before for a vacation; at another, Lee left after the first question claiming the need for medical attention but later failed to substantiate that claim.
- Defiance of explicit court orders: Twice, the magistrate judge issued detailed orders, extended deadlines, and warned of dismissal. Twice, Lee refused to comply—failing to provide sworn statements under penalty of perjury, failing to provide documentation, and failing to provide deposition dates. The court found this willful and attributable to Lee, not her counsel.
- Pattern with counsel: Three sets of counsel entered and withdrew, citing Lee’s refusal to cooperate, disrespect, and pursuit of imprudent strategies—corroborating the court’s finding of contumaciousness.
- Comparative precedents: The court analogized to Nottingham and others, holding that Lee’s active defiance exceeded mere confusion or inadvertence and undermined the integrity of the judicial process (Rogers).
Lesser sanctions would not prompt diligent prosecution.
- Recognized “lesser sanctions” include fines, costs, conditional dismissal, dismissal without prejudice, and explicit warnings (Rogers). Here, the court focused on explicit warnings—given multiple times—and repeated accommodations (deadline extensions, a courtroom deposition date), none of which spurred compliance.
- The magistrate judge expressly found that no lesser sanction would deter future misconduct. The Fifth Circuit held that the explicit warnings used here were lesser sanctions that proved futile, satisfying Berry’s second requirement.

Finally, the court identified an aggravating factor supporting the with-prejudice dismissal: the delay was caused by the plaintiff herself, not by her attorneys. That factor often accompanies affirmances of Rule 41(b) dismissals with prejudice. Because Rule 41(b) fully supported the judgment, the panel declined to reach Rule 37(b)(2)(A).

Impact and Practical Significance

Warnings as adequate “lesser sanctions.” The opinion expressly “holds” that explicit warnings—issued more than once—qualify as lesser sanctions when they fail to secure compliance. That is consistent with Rogers but notable in its clear, direct application to a modern discovery stand-off. For litigants, this means:
- District courts that document clear, explicit warnings of dismissal and provide realistic opportunities to comply create a record that strongly supports a subsequent Rule 41(b) dismissal with prejudice.
- Parties should not assume courts must impose monetary penalties or lesser dismissals before turning to dismissal with prejudice; repeated explicit warnings may suffice when defiance continues.
Deposition noncompliance and sworn responses. When a court orders responses “under penalty of perjury,” unsworn narratives or partial, last-minute submissions do not satisfy the order. Noncompliance in the face of a clear, sworn-response directive may be treated as willful defiance.
Attribution of delay matters. The court emphasized that the delays and noncompliance were Lee’s, not her counsel’s. Repeated attorney withdrawals citing client misconduct can strengthen a Rule 41(b) record.
Pro se status and “good faith” assertions will not overcome a record of willful defiance. Even when a litigant proceeds pro se, clear orders and warnings must be followed. Claims of confusion or good faith will not rescue noncompliance when directives are unambiguous.
Rule selection: 41(b) may suffice without 37(b). Where the record supports Rule 41(b), appellate courts may affirm without reaching Rule 37(b). Defendants may thus move under both, but an adequate 41(b) record streamlines appellate review.
Precedential weight. The opinion is unpublished under 5th Cir. R. 47.5 and is not binding precedent, but it is persuasive within the Fifth Circuit’s familiar Berry/Rogers framework. It signals how panels will review similar records of deposition evasion and order-defiance.

Complex Concepts Simplified

Rule 41(b) (Failure to Prosecute/Obey Orders): Allows a defendant to move to dismiss when the plaintiff does not diligently pursue the case or violates court orders. Dismissal with prejudice closes the case and generally operates as a decision on the merits, barring refiling.
Contumacious Conduct: Stubborn, willful disobedience or resistance to judicial authority. It goes beyond mere negligence or isolated mistakes and can justify harsh sanctions to protect the court’s process.
Lesser Sanctions: Penalties short of dismissal with prejudice (e.g., fines, cost-shifting, conditional dismissals, explicit warnings). Courts prefer trying lesser sanctions first; if they fail, dismissal becomes appropriate.
Abuse-of-Discretion Review: A deferential appellate standard. The question is not whether the appellate court would have chosen the same sanction, but whether the district court’s decision fell within a range of acceptable choices given the record.
Dismissal “With Prejudice”: A final, case-ending ruling that generally prevents the plaintiff from bringing the same claims again. It is the most severe civil sanction apart from contempt and is reserved for egregious circumstances.
Rule 37(b)(2)(A) (Discovery Order Sanctions): Permits sanctions, including dismissal, when a party disobeys a discovery order. Courts often evaluate Rule 37 and Rule 41 in tandem when noncompliance is discovery-centered.
Certificate of Nonappearance: A formal record that a noticed deponent failed to appear or complete a deposition; it often supports motions for sanctions.
Per Curiam, Unpublished: A decision issued in the court’s name rather than a named judge, and not designated for publication. In the Fifth Circuit, unpublished opinions are nonprecedential but may be cited for persuasive value.

Key Takeaways

Two explicit, ignored warnings—combined with repeated deposition evasion and disobedience of clear orders—support a Rule 41(b) dismissal with prejudice.
Explicit warnings are recognized “lesser sanctions.” If warnings fail, courts need not cycle through every conceivable lesser penalty before dismissing.
Attribution of delay to the plaintiff (rather than counsel) is a powerful aggravating factor and will weigh heavily in favor of dismissal.
Orders requiring sworn responses mean sworn responses. Unsworn narratives or partial compliance will be treated as noncompliance.
Once Rule 41(b) is satisfied, appellate courts may affirm without addressing Rule 37(b) as an independent ground.

Conclusion

Lee v. Southwest Airlines reaffirms core Fifth Circuit standards for the ultimate sanction of dismissal with prejudice under Rule 41(b). The opinion offers a clear, practical roadmap: when a plaintiff repeatedly evades depositions and flouts unambiguous, explicit court orders despite multiple warnings, the record will support a finding of contumacious conduct; explicit warnings constitute lesser sanctions; and, where those warnings fail, dismissal with prejudice falls within the district court’s discretion. Although unpublished, the decision is a strong, persuasive signal to litigants and district courts: discovery defiance and resistant conduct—especially after clear warnings—will be met with decisive docket management to preserve the integrity and efficiency of the judicial process.