GRIPE v. CITY OF ENID
FILED
United States Court of Appeals
Tenth Circuit
DEC 4 2002
PATRICK FISHER
Clerk PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
ROGER D. GRIPE,
Plaintiff - Appellant,
v.
CITY OF ENID, OKLAHOMA, a municipal
corporation and political subdivision
of the State of Oklahoma; DENNIS No. 01-6430
MADISON, individually and in
his official capacity as Chief
of Police for the City of Enid;
TIM KING, individually and as
manager of the Dillards Department
Store, Enid, Oklahoma; DILLARDS,
INC., a Delaware Corporation
doing business in the State
of Oklahoma,
Defendants - Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. CIV-00-125-L)
Submitted on the briefs:
David J. Batton, Norman, Oklahoma, for Plaintiff-Appellant.
David W. Kirk of Carter & Kirk, P.C., Oklahoma City, Oklahoma, for
Defendants-Appellees City of Enid and Dennis Madison, and Nathan L. Whatley
and Shawn E. Harrell of McAfee & Taft, a Professional Corporation, Oklahoma
City, Oklahoma, for Dillards, Inc. and Tim King.
Before HENRY, ANDERSON, and HARTZ, Circuit Judges.
HARTZ, Circuit Judge.
Plaintiff Roger D. Gripe appeals the district court's order dismissing his
complaint as a sanction for his lawyer's repeated violations of court orders and
rules. The district court denied plaintiff's motion for relief from judgment.
Because the statute of limitations on his claims has expired, he cannot refile
them. Plaintiff's principal argument is that he should not be penalized for his
lawyer's shortcomings. We affirm.(1)
Appellate Jurisdiction
As a preliminary matter, we discuss our jurisdiction. The district court
dismissed the action on November 1, 2001. Plaintiff filed a motion for relief
from judgment on November 2, and filed a timely notice of appeal from the
order of dismissal on November 30. On December 19 the district court denied
relief from the judgment. Plaintiff did not file an amended notice of appeal, as
required by Fed. R. App. P. 4(a)(4)(B)(ii) to challenge a post-judgment order.
(1) 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.
Therefore, we have appellate jurisdiction over only the November 1 judgment
of dismissal and not over the December 19 order denying post-judgment relief.
Jernigan v. Stuchell, 304 F.3d 1030, 1031 (10th Cir. 2002). Accordingly, we
do not address plaintiff's appellate arguments related to the post-judgment
proceedings. The post-judgment order does, however, reveal some of the
district court's reasons for dismissing the case, and we consider it for that
purpose. It would be pointless to remand for a statement of reasons when those
reasons have already been expressed on the record.
Facts
Plaintiff, a police officer, filed his original complaint on September 11,
1998. The complaint alleged that his federal civil rights and various state-law
rights were violated when defendant Dillards, a department store, and its
manager wrongfully caused him to be investigated for assaulting his wife, who
was a store employee. It further alleged that the City of Enid, its police chief,
and police captain Tim Goodpasture wrongfully pursued assault charges against
him as punishment for his involvement in a police collective bargaining unit.
The district court dismissed the complaint without prejudice on January
15, 1999, because plaintiff had not taken any action in the litigation, having
failed even to perfect service on the defendants. Plaintiff refiled on January
14, 2000. By this time the applicable limitations period apparently had expired.
Although the Oklahoma savings statute provides that the statute of limitations
does not bar a refiled complaint if the original complaint was timely filed and
the refiling occurs within a year of a non-merits dismissal of the original
complaint, Okla. Stat. tit. 12, 100, the second complaint did not invoke this
statute. Consequently, on February 7, 2000, the City and its police chief
moved to dismiss the action on the ground that the statute of limitations had
run.
On September 29, 2000, the district court ruled that plaintiff would be
allowed to file an amended complaint to cure his failure to invoke the
Oklahoma savings statute. Plaintiff was granted fifteen days to file an amended
complaint. Plaintiff missed the deadline. On January 12, 2001, the district
court ordered plaintiff to file an amended complaint, or show cause for a
failure to do so, no later than January 18, 2001. The order expressed the
court's concern that no effort had been made to comply with its prior deadline
and warned that failure to comply with the second order could result in
dismissal of the action with prejudice. Plaintiff filed no pleading by the
January 18 deadline.
On January 23 plaintiff filed an amended complaint accompanied by a
motion to file it out of time. Although plaintiff had entered into a stipulated
dismissal of defendant Goodpasture in June 2000, the amended complaint again
named him as a defendant. Plaintiff's attorney claimed his tardiness was due to
inadvertence, miscalendaring of the due date by his office, and a family
emergency.
On May 22, 2001, over objection, the district court allowed the amended
complaint to stand. The court stated that it was "troubled by plaintiff's
counsel's inability to comply with the court's orders in a timely and
professional manner," but would let the case proceed because of "the harshness
of dismissal and the court's preference for determining cases on their merits."
Aplt. App. doc. 15, at 101-02. The court issued the following warning:
[T]he court expects and directs plaintiff's counsel to fully comply
with all orders of the court and to comply with all applicable
federal and local rules. Further instances of "inadvertently
overlooking" court deadlines and similar requirements will be met
with the utmost disapproval and possible sanctions, including, if
appropriate, dismissal of this action.
Id. at 102. The court imposed no sanction except to order plaintiff to file a
second amended complaint omitting Goodpasture and to pay Goodpasture's
attorney fees for having to respond to the amended complaint. Plaintiff
complied with the order.
On November 1, 2001, plaintiff's attorney failed to appear at a
court-ordered status conference. Defense counsel did appear. The court
dismissed the action, finding that plaintiff's counsel had been given sufficient
notice that the case would be dismissed for continued failure to comply with
the court's orders and applicable rules and that the inconvenience and expense
to the other parties and the court warranted dismissal.
Plaintiff filed a motion for relief from judgment under Federal Rule of
Civil Procedure 60(b), and later supplemented the motion with an affidavit
from his attorney. Plaintiff's attorney sought to excuse his failure to comply
with the court's order to appear at the status conference by pointing to his
personal obligations and busy litigation schedule. In denying relief, the district
court observed that in addition to failing to appear at the status conference,
plaintiff's attorney had "a disturbing history of missed deadlines and
noncompliance with the court's orders in this case." Id. doc. 30, at 266. The
court held that plaintiff had failed to justify his request for relief under Rule
60(b), in part because there was no reason to believe that another warning
would be effective. The court further held that dismissal did not penalize
plaintiff unjustly because he had chosen the attorney who had repeatedly failed
to comply with court orders and rules. Plaintiff appeals, claiming dismissal
was too harsh a sanction under the circumstances.
Analysis
The Federal Rules of Civil Procedure authorize sanctions, including
dismissal, for failing to appear at a pretrial or scheduling conference, see Fed.
R. Civ. P. 16(f) and 37(b)(2)(C), and for failing to comply with court rules or
any order of the court, see Fed. R. Civ. P. 41(b). As stated in an en banc
opinion of this court, Rule 16(f) "indicates the intent to give courts very broad
discretion to use sanctions where necessary to insure . . . that lawyers and
parties . . . fulfill their high duty to insure the expeditious and sound
management of the preparation of cases for trial." Mulvaney v. Rivair Flying
Serv., Inc. (In re Baker), 744 F.2d 1438, 1440 (10th Cir. 1984) (en banc).
We review for an abuse of discretion the district court's decision to
impose the sanction of dismissal for failure to follow court orders and rules.
Archibeque v. Atchison, Topeka & Santa Fe Ry. Co., 70 F.3d 1172, 1174 (10th
Cir. 1995). "It is within a court's discretion to dismiss a case if, after
considering all the relevant factors, it concludes that dismissal alone would
satisfy the interests of justice." Ehrenhaus v. Reynolds, 965 F.2d 916, 918
(10th Cir. 1992).
Before imposing dismissal as a sanction, a district court should
ordinarily evaluate the following factors on the record: "(1) the degree of
actual prejudice to the [other party]; (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. at
921 (internal quotation marks and citations omitted) (dismissing case as
sanction for discovery violation). Although Ehrenhaus involved sanctions for
discovery violations, we have held that "Rule 41(b) involuntary dismissals
should be determined by reference to the Ehrenhaus criteria." Mobley v.
McCormick, 40 F.3d 337, 341 (10th Cir. 1994). Similarly, we conclude that
dismissal as a sanction under Rules 16(f) and 37(b)(2)(C) should ordinarily be
evaluated under the same factors. See id. (finding "no principled distinction
between sanctions imposed for discovery violations and sanctions imposed for
noncompliance with other orders"). The factors do not create a rigid test but
are simply criteria for the court to consider. Ehrenhaus, 965 F.2d at 921.
The record demonstrates that the district court's decision to dismiss the
action was based on the appropriate considerations. The district court (1)
noted on at least two occasions that plaintiff's failure to follow court orders
and rules had inconvenienced and prejudiced the defendants and the court; (2)
twice clearly warned plaintiff that failure to follow court orders and rules
could result in dismissal of his case; and (3) found that a sanction less severe
than dismissal would not be effective.
As for the remaining criterion mentioned in Ehrenhaus-"the culpability
of the litigant," id. at 921-the record contains no direct evidence regarding
what plaintiff knew of his attorney's derelictions. Nevertheless, the district
court dealt with this criterion when it said: "[D]ismissal does not unjustly
penalize the individual plaintiff in this case in light of the repeated and
documented failure of his chosen representative. A litigant is bound by the
actions of its attorney, and the relative innocence of the litigant in the failure
does not constitute grounds for relief." Aplt. App. doc. 30, at 269.
Thus, the district court unquestionably considered the appropriate factors
in deciding to dismiss plaintiff's case, and its decision was not an abuse of
discretion.
Plaintiff argues against the harshness of penalizing him for his attorney's
conduct. But there is nothing novel here. Those who act through agents are
customarily bound by their agents' mistakes. It is no different when the agent
is an attorney. When an attorney drafting a contract omits an important clause,
the client who signs the contract is bound. When a trial attorney is poorly
prepared to cross-examine an expert witness, the client suffers the
consequences. (It should be noted, however, that the mistreated client is not
totally without a remedy. There may be a meritorious malpractice claim
against the attorney.)
Virtually the same issue came before the Supreme Court in Link v.
Wabash R.R. Co., 370 U.S. 626 (1962). The Court upheld the district court's
inherent power to dismiss an action with prejudice when the plaintiff's
attorney, who had a history of dilatory conduct, missed a pretrial conference
without an adequate excuse. Although the dismissal in Link was categorized as
being for "failure to prosecute," the substance of the district court's ruling was
essentially the same as that of the district court in this case. Justice Harlan
wrote:
There is certainly no merit to the contention that dismissal of
petitioner's claim because of his counsel's unexcused conduct
imposes an unjust penalty on the client. Petitioner voluntarily
chose this attorney as his representative in the action, and he
cannot now avoid the consequences of the acts or omissions of this
freely selected agent. Any other notion would be wholly
inconsistent with our system of representative litigation, in which
each party is deemed bound by the acts of his lawyer-agent and is
considered to have notice of all facts, notice of which can be
charged upon the attorney.
Id. at 633-34 (internal quotation marks omitted). The footnote to this passage
explains:
Clients have been held to be bound by their counsels' inaction in
cases in which the inferences of conscious acquiescence have been
less supportable than they are here, and when the consequences
have been more serious. Surely if a criminal defendant may be
convicted because he did not have the presence of mind to
repudiate his attorney's conduct in the course of a trial, a civil
plaintiff may be deprived of his claim if he failed to see to it that
his lawyer acted with dispatch in the prosecution of his lawsuit.
And if an attorney's conduct falls substantially below what is
reasonable under the circumstances, the client's remedy is against
the attorney in a suit for malpractice. But keeping this suit alive
merely because plaintiff should not be penalized for the omissions
of his own attorney would be visiting the sins of plaintiff's lawyer
upon the defendant. Moreover, this Court's own practice is in
keeping with this general principle. For example, if counsel files a
petition for certiorari out of time, we attribute the delay to the
petitioner and do not request an explanation from the petitioner
before acting on the petition.
Id. at 634 n.10 (citations omitted). Cf. Pioneer Inv. Servs. Co. v. Brunswick
Assocs. Ltd. P'ship, 507 U.S. 380, 396 (1993) (quoting from above passage in
Link to support rejection of court of appeals' suggestion that it is inappropriate
to penalize client for attorney's error when assessing whether attorney's filing
untimely proof of claim in bankruptcy court was excusable neglect).
We recognize, as plaintiff argues, that this circuit has remanded cases
where the record was not clear that the district court evaluated the fault of the
parties and other applicable factors. See, e.g., Ocelot Oil Corp. v. Sparrow
Indus., 847 F.2d 1458, 1465 (10th Cir. 1988). Here, however, the record
shows that the district court considered all the Ehrenhaus factors, including the
culpability of the litigant. The district court acted within its discretion in
dismissing the case.
AFFIRMED.