F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                        September 23, 2005
                            FOR THE TENTH CIRCUIT
                                                                           Clerk of Court

    LISE LANE,

                Plaintiff-Appellant,
                                                         No. 05-5016
    v.                                            (D.C. No. 03-CV-760-E (M))
                                                         (N.D. Okla.)
    SUNOCO, INC., a corporation,

                Defendant-Appellee.


                             ORDER AND JUDGMENT           *




Before O’BRIEN , HOLLOWAY , and BALDOCK , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

         Plaintiff-Appellant Lisa Lane appeals from the district court’s dismissal of

her complaint for failure to prosecute and its denial of her postjudgment motion to



*
      This order and judgment is not binding precedent, except under the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.
vacate the court’s order. We reverse and remand the matter for further

proceedings.

                                 BACKGROUND

      Ms. Lane filed a complaint on November 7, 2003, alleging that Sunoco,

Inc. terminated her employment in violation of the Employee Retirement Security

Income Act of 1974 and Oklahoma state law relating to wrongful discharge and

breach of an implied employment contract. Ms. Lane served a discovery request

on Sunoco, but she did not respond to Sunoco’s interrogatories and requests for

production of documents, or its letter asking for a signed release of her

confidential Oklahoma Employment Security Commission records.

      According to the court’s scheduling order, the parties were to exchange

witness and exhibit lists on June 30, 2004. When defense counsel conferred with

plaintiff’s counsel concerning the deadline, the attorneys agreed to postpone the

exchange of lists and outstanding discovery requests based on the statement of

plaintiff’s counsel that he was uncertain whether his client wished to pursue the

lawsuit. On July 26, 2004, plaintiff’s counsel reported that he had located

Ms. Lane, but that he did not know whether she wished to continue the litigation.

      Sunoco moved to dismiss the case for failure to prosecute on August 24,

2004. Twenty days later, on September 13, 2004, Sunoco filed a motion to deem

its dismissal motion admitted, under Local Rule 7.1 of the Northern District of


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Oklahoma.    1
                 Plaintiff did not respond to either of Sunoco’s motions. On

September 21, 2004, the district court entered a summary order dismissing the

complaint “for failure to prosecute [the] action and for failure to comply with the

Federal Rules of Civil Procedure and the Local Rules of this Court.” Aplt’s App.,

Tab 6.

         Within a week, Ms. Lane asked the court to vacate the order of dismissal

under Rules 59(e) and 60(b) of the Federal Rules of Civil Procedure. At the same

time, she provided responses to Sunoco’s requests for production of documents.

In her motion, she acknowledged her failure to answer her attorney’s inquiries

and Sunoco’s discovery requests. She stated that the case was important to her,

but that dealing with her physical and emotional health problems had taken

priority over litigation requirements. She claimed that her health had improved to

a significant degree and that she had begun to prosecute her case in a responsible

manner.



1
         N.D. Okla. R. 7.1(f) provides:

         Unopposed dispositive motions:       If a dispositive motion is not
         opposed, the Court may in its discretion either (1) provide an
         additional eleven days [beyond the 18 days provided for
         nondispositive motions, pursuant to N.D.L.R. 7.1(e)], after which the
         case will be dismissed or the motion will be deemed confessed, as
         appropriate, or, (2) in the event the moving party has filed a motion
         for confession of judgment, such motion may be granted following
         eleven days after filing.

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      Sunoco opposed Ms. Lane’s motion, pointing out that she had not provided

any evidence from a health-care provider suggesting that she had been

incapacitated. In fact, her untimely discovery responses indicated that she had

been a full-time college student at Tulsa Community College during the course of

the litigation. In a written order, the district court recounted the case history and

noted that Ms. Lane had not contested the facts that led to dismissal. The order

did not discuss prejudice to Sunoco, interference with the judicial process, prior

warnings to Ms. Lane, or the possibility of lesser sanctions. The court’s

conclusion was that Ms. Lane had not raised any arguments justifying a vacation

of the order, under either Rule 59(e) or Rule 60(b) standards. This appeal

followed the court’s denial of Ms. Lane’s motion.

                                   DISCUSSION

      The Federal Rules of Civil Procedure permit a district court to dismiss an

action “[f]or failure of the plaintiff to prosecute or to comply with . . . any order

of court.” Fed. R. Civ. P. 41(b). As this court has explained, “[a] district court

undoubtedly has discretion to sanction a party for failing to prosecute or defend a

case, or for failing to comply with local or federal procedural rules,” including

dismissing the party’s case with prejudice or entering judgment against the party.

LaFleur v. Teen Help , 

, 1151 (10th Cir. 2003). However, the

severe sanction of “[d]ismissal for failure to prosecute should be imposed only


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after careful exercise of judicial discretion.”     United States ex rel. Jimenez v.

Health Net, Inc ., 

, 855 (10th Cir. 2005) (     sua sponte dismissing an

appeal for failure to prosecute).

       To aid in the exercise of the district court’s discretion, this court has

consistently required an explicit consideration of five factors. Before terminating

a case for failure to prosecute the district court must analyze: “(1) the degree of

actual prejudice to the opposing party, (2) the degree of interference with the

judicial process, (3) the litigant’s culpability, (4) whether the litigant was warned

in advance that dismissal was a likely sanction, and (5) whether a lesser sanction

would be effective.”    

district court did not perform a sanction

analysis, this Court has . . . reverse[d] the district court’s sanction as overly

severe.” Reed v. Bennett, 

, 1196 (10th Cir. 2002).

       The requisite “analysis is highly fact specific” and the “district court is in a

far better position than this Court to judge the culpability of the litigant, the

degree of prejudice to the opposing party, and the interference with the court’s

docket and the judicial process caused by” a failure on the part of a litigant.     

court has never “independently employed the . . . analysis to

uphold a district court sanction.”     

with Ms. Lane’s case, the district court did not expressly

consider the appropriate factors before dismissing the complaint or denying the


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motion to vacate. Under Tenth Circuit case law, this lack of analysis constitutes

an abuse of discretion. Accordingly, we reverse and remand to the district court

with directions to vacate its September 21, 2004 order of dismissal and its

January 12, 2005 order denying the motion to vacate. On remand, the district

court will have the opportunity to supply the required analysis.



                                                    Entered for the Court



                                                    Bobby R. Baldock
                                                    Circuit Judge




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