Filed: Jun. 04, 1999
Latest Update: Feb. 21, 2020
Summary: F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUN 4 1999 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk ROBERT L. DIMOND, Plaintiff-Appellant, v. Nos. 98-2043 & 98-2195 (D.C. No. CIV-96-1013) ALLSUP’S CONVENIENCE (D. N.M.) STORES, INC., Defendant-Appellee. ORDER AND JUDGMENT * Before TACHA , BARRETT , and MURPHY , Circuit Judges. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assis
Summary: F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUN 4 1999 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk ROBERT L. DIMOND, Plaintiff-Appellant, v. Nos. 98-2043 & 98-2195 (D.C. No. CIV-96-1013) ALLSUP’S CONVENIENCE (D. N.M.) STORES, INC., Defendant-Appellee. ORDER AND JUDGMENT * Before TACHA , BARRETT , and MURPHY , Circuit Judges. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist..
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 4 1999
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
ROBERT L. DIMOND,
Plaintiff-Appellant,
v. Nos. 98-2043 & 98-2195
(D.C. No. CIV-96-1013)
ALLSUP’S CONVENIENCE (D. N.M.)
STORES, INC.,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before TACHA , BARRETT , and MURPHY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
In appeal No. 98-2043, plaintiff Robert Dimond, appearing pro se, appeals
an order of the district court dismissing his 42 U.S.C. §§ 12101-12213 Americans
with Disabilities Act (ADA) complaint under Fed. R. Civ. P. 41(b) for failure to
prosecute. In appeal No. 98-2195, Dimond appeals the district court’s award of
costs to defendant as the prevailing party pursuant to Fed. R. Civ. P. 54 and
Rule 54 of the Rules for the United States District Court for the District of New
Mexico. We reverse and remand.
Dimond filed his ADA complaint in 1996, alleging that defendant had
denied him employment because of his disabilities. Dimond failed to attend a
January 6, 1998 pre-trial conference, telling his counsel he was tired. See
R. Vol. IV at 13. At the pre-trial conference, the district court set the case for
trial on Monday, January 12, 1998. Dimond’s counsel verbally moved to
withdraw as counsel at the pre-trial conference, but the district court deferred
ruling on the withdrawal request until the start of trial.
On January 7, 1998, defendant’s counsel served Dimond with a subpoena
directing him to appear at trial on January 12. On that same date, Dimond’s
counsel filed a formal motion to withdraw as counsel. Dimond filed a pro se
response to the withdrawal request on Friday, January 9, 1998, requesting that the
January 12 trial date be vacated pending resolution of the withdrawal request and
further requesting that, if his counsel’s motion to withdraw was granted, the
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district court reset the trial to July in order to give him time to prepare for trial
pro se. See R. Vol. II, Doc. 130 at 3-4. In this motion, plaintiff stated that he
would not appear in court for trial on Monday, January 12, 1998 because it
appeared to him that “there certainly will be no trial in this case on” that date.
Id. at 4.
Dimond did not appear for trial on January 12, 1998. The district court
waited an hour for him to appear. Dimond’s counsel represented to the court that
Dimond had been told of the trial date and time. The process server testified that
he personally served Dimond with the subpoena to appear at trial and gave him a
check for fees and mileage. The district court noted that the pre-trial order
reflected that Dimond’s sole witness was himself. The district court then
summarily dismissed the action with prejudice under Rule 41(b) for failure to
prosecute based on Dimond’s failure to appear at trial, noting generally that
Dimond had repeatedly delayed the course of litigation. The district court
assessed jury fees against Dimond in the sum of $1,319.86, and later awarded
defendant costs of $2,449.56 as the prevailing party pursuant to Rule 54.
On appeal, Dimond contends that the district court abused its discretion in
dismissing his complaint with prejudice. We review the imposition of the
sanction of dismissal for failure to prosecute or noncompliance with court orders
under the abuse of discretion standard. See Jones v. Thompson , 996 F.2d 261,
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264 (10th Cir. 1993). A district court has the inherent power to dismiss an action
with prejudice for willful and inexcusable failure to prosecute. See Link v.
Wabash R.R. Co. , 370 U.S. 626, 630-32 (1962). However, “dismissal is a severe
sanction and is not ordinarily warranted if lesser sanctions would be effective.”
Jones, 996 F.2d at 265; see also Meade v. Grubbs ,
841 F.2d 1512, 1520 n.6.
(10th Cir. 1988) (“[b]ecause dismissal with prejudice defeats altogether a
litigant’s right to access to the courts, it should be used as a weapon of last, rather
that first, resort.” (citations, quotations and emphasis omitted)).
When a district court dismisses an action case with prejudice, it has a duty
to explain why dismissal was an appropriate sanction. See Ehrenhaus v.
Reynolds , 965 F.2d 916, 921-22 (10th Cir. 1992); Woodmore v. Git-N-Go ,
790 F.2d 1497, 1499 (10th Cir. 1986). Thus, prior to dismissing a complaint,
a district court must ordinarily consider, on the record, several factors designed
to caution against premature or unreflective resort to this drastic sanction.
See Mobley v. McCormick ,
40 F.3d 337, 340 (10th Cir. 1994).
These criteria include: “(1) the degree of actual prejudice to the
defendant; (2) the amount of interference with the judicial process;
. . . (3) the culpability of the litigant; (4) whether the court warned
the party in advance that dismissal of the action would be a likely
sanction for noncompliance; and (5) the efficacy of lesser sanctions.”
Id. (quoting Ehrenhaus , 965 F.2d at 921). We have held that a district court’s
failure to evaluate and weigh the Jones and Ehrenhaus factors amounts to an
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abuse of discretion because the failure to address these factors on the record
prevents this court from engaging in meaningful review of the district court’s
decision. See id. , 40 F.3d at 341.
Here, as in Mobley , the record on appeal contains no indication that the
district court considered the criteria set out in Jones and Ehrenhaus prior to
dismissing Dimond’s complaint with prejudice. See id. at 341 (holding that
failure to consider these factors warrants reversal). The record does not indicate
that the district court ever warned Dimond that dismissal of his complaint would
likely result from his failure to appear in person at the trial. See Ehrenhaus ,
965 F.2d at 919, 922 (explaining that such a warning is a factor we consider in
determining whether the district court abused its discretion). Significantly, the
district court did not consider Dimond’s request for a continuance in light of his
counsel’s motion to withdraw filed on the eve of trial. While it is true that
litigants are not free to appear before the court at their pleasure, cf. Greenwood
Explorations, Ltd. v. Merit Gas & Oil Corp. ,
837 F.2d 423, 426 (10th Cir. 1988),
nonetheless, we are concerned that the district court failed to address the import
of counsel’s pending motion to withdraw or Dimond’s pending request for a
continuance of the trial. The district court also failed to consider on the record
whether a lesser sanction would suffice prior to dismissing Dimond’s case. See
Jones, 996 F.2d at 265;
Mobley 40 F.3d at 341 (stating “we are particularly
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concerned with the trial court’s failure to consider whether a lesser sanction
would be appropriate” when district court imposes the severe sanction of
dismissal with prejudice).
Because the present state of the record does not permit an informed
decision of whether the district court considered the relevant criteria in dismissing
the case and whether the dismissal was within the discretion of the district court,
we reverse the orders of the district court dismissing the complaint and awarding
costs to defendant as the prevailing party and remand the case in order to afford it
an opportunity to evaluate the Jones and Ehrenhaus factors. See Mobley , 40 F.3d
at 341. We express no view on the outcome after adequate evaluation of these
factors.
Dimond filed a motion with the district court following the dismissal order
stating in part that the dismissal order should be vacated because he had
authorized his counsel to accept defendant’s settlement offer on January 8, 1998,
and therefore thought his case had been settled, implying his belief that he did not
need to appear for trial on January 12, 1998. Dimond did not characterize this
motion as one for relief from judgment pursuant to Fed. R. Civ. P. 60(b), nor did
the district court construe it as such under the liberal pleading standards for pro se
litigants. See Riddle v. Mondragon , 83 F.3d 1197, 1202 (10th Cir. 1996).
Nevertheless, on remand, the district court should consider whether Dimond may
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have been misled into thinking the trial would not take place on January 12, 1998,
as originally scheduled, because of his belief his case had been settled.
Dimond’s request to proceed in forma pauperis on appeal is DENIED
because he has failed to demonstrate his inability to pay the requisite fees and
costs. See DeBardeleben v. Quinlan , 937 F.2d 502, 505 (10th Cir. 1991) (holding
that party must demonstrate an inability to pay the required filing fees to succeed
on a motion to proceed in forma pauperis). Dimond’s motion to strike
defendant’s Answer Brief is DENIED. The judgment of United States District
Court for the District of New Mexico is REVERSED and the case is REMANDED
for further findings consistent with this decision. The mandate shall issue
forthwith.
Entered for the Court
Deanell Reece Tacha
Circuit Judge
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