F I L E D

United States Court of Appeals

Tenth Circuit

MAR 11 2005

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, ex rel.

TERESA JIMENEZ and WILLIAM

FREEMAN,

Plaintiffs-Appellants/ 

Cross-Appellees,

v.

HEALTH NET, INC., as successor in

interest to Foundation Health Systems,

Inc., QualMed, Inc., and Health Systems

International, Inc., and parent corporation

to the named subsidiary defendants;

HEALTH NET OF CALIFORNIA, INC.,

a wholly owned subsidiary of Health Net,

Inc.; HEALTH NET FEDERAL

SERVICES, INC., a wholly owned

subsidiary of Health Net, Inc., successor

in interest to Foundation Health Federal

Services, Inc.; HEALTH NET HEALTH

PLAN OF OREGON, INC., a subsidiary

of QualMed, Inc., a holding company

wholly owned by Health Net, Inc.;

FOUNDATION HEALTH SYSTEMS

LIFE & HEALTH INSURANCE

COMPANY, a subsidiary of FHS Life

Holdings Company; QUALMED, INC., a

subsidiary and holding company wholly

owned by Health Net Inc.; HSI

EASTERN HOLDINGS, INC., a

subsidiary of Health Net, Inc.; GREATER

ATLANTIC HEALTH SERVICES, INC.,

a subsidiary of HSI Eastern Holdings,

Nos. 03-1424 and 03-1443
* Oral argument was initially scheduled in this case, but vacated per court order of

October 14, 2004. After examining the briefs and appellate record, this panel has now

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

submitted without oral argument.

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Inc.; QUALMED PLANS FOR

HEALTH, INC., a subsidiary of Greater

Atlantic Health Service, Inc.; QUALMED

PLANS FOR HEALTH OF

COLORADO, INC., a subsidiary of

QualMed, Inc.; QUALMED PLANS FOR

HEALTH OF PENNSYLVANIA, INC.,

also known as King of Prussia Health

Plan, a subsidiary of Health Net, Inc.; HSI

ADVANTAGE HEALTH HOLDINGS,

INC., a subsidiary of Health Net, Inc.;

QUALMED PLANS FOR HEALTH OF

OHIO AND WEST VIRGINIA, INC., a

subsidiary of HSI Advantage Health

Holdings, Inc.; QUALMED PLANS FOR

HEALTH OF WESTERN

PENNSYLVANIA, INC., a subsidiary of

HSI Advantage Health Holdings, Inc.,

Defendants-Appellees/

Cross-Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(District Court No. 99-N-1259 (MJW))

Submitted on the briefs:*

Robert P. Goe of Goe & Forsythe, LLP, Newport Beach, California, for

Plaintiffs-Appellants/Cross-Appellees.
**

 The Honorable Ronald A. White, U.S. District Judge, Eastern District of

Oklahoma, sitting by designation.

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Robert N. Miller and Stephanie E. Dunn of Perkins Coie LLP, Denver, Colorado, for

Defendants-Appellees/Cross-Appellants.

Before EBEL, HENRY, and WHITE**, Circuit Judges.

HENRY, Circuit Judge.

Plaintiffs-Appellants/Cross-Appellees Ms. Teresa Jimenez and Mr. William

Freeman (“Appellants”) have consistently ignored procedural rules and orders, failed at

every step to follow even the most basic requirements of filing an appeal with this court,

disappeared to the point that their counsel was forced to notify the court that he believed

he had been abandoned by his clients, and most recently, failed to meet this court’s

specific deadline for resurfacing. Because Appellants have failed to prosecute their

appeal, we dismiss the appeal sua sponte. We also notify Appellants that we are

concerned about the frivolity of the appeal, and thus are contemplating sanctions against

Appellants.

The “authority of a court to dismiss sua sponte for lack of prosecution has

generally been considered an inherent power, governed not by rule or statute but by the

control necessarily vested in courts to manage their own affairs so as to achieve the

orderly and expeditious disposition of cases.” Link v. Wabash R.R. Co., 370 U.S. 626,
1We wish to be clear that we are not dismissing this appeal for failure to follow our

local rules, particularly with regard to the facial requirements of briefs. See FED. R. APP.

P. 47(a)(2) (“A local rule imposing a requirement of form must not be enforced in a

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630-31 (1962) (citations and quotation omitted). Dismissal for failure to prosecute should

be imposed only after careful exercise of judicial discretion. See DeBardeleben v.

Quinlan, 937 F.2d 502, 504 (10th Cir. 1991). Nevertheless, dismissal is an appropriate

disposition against a party who disregards court orders and fails to proceed as required by

court rules. Nat’l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 642-43

(1976).

Appellants’ failures in this case are chronic. They neither filed their opening brief

on cross-appeal nor sought an extension in a timely manner. See Docket, Tenth Circuit

Court of Appeals, at entries for Dec. 22, 2003 and Feb. 20, 2004. Nevertheless, the clerk

of Court granted them an extension. See id. at entry for Feb. 20, 2004. Appellants then

filed two motions to extend the time to file their opening brief. See id. at entries for Feb.

25, 2004 and March 9, 2004. They filed the second of these motions for extension after

their original extension had already ended. See id. at entries for Feb. 20, 2004 and March

9, 2004. After receiving another extension from a panel of this court, see id. at entry for

March 15, 2004, Appellants filed a deficient opening brief. Its typeface was too small; it

included no statement regarding oral argument on its cover or in the brief itself; it

included no statement of prior or related cases; the order being appealed from was not

attached to its end; and the appendix included no table of contents.1

 See id. at entry for
manner that causes a party to lose rights because of a nonwillful failure to comply with

the requirement.”). We list the deficiencies in Appellants’ brief merely to illustrate

Appellants’ ongoing disregard for the court’s time and resources. 

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March 24, 2004. Appellants later attempted without leave of court to submit a

supplemental appendix to their reply brief with nearly 600 pages of documents that

should have been submitted with the original appendix. See id. at entries for June 10 and

15, 2004.

In addition to this woeful procedural litany, the court received a letter in October

2004 from Appellants’ counsel, indicating his belief that he had been abandoned by his

clients. See id. at entry for Oct. 2, 2004. He had not heard from Appellants in more than

a year, despite his written warning to them in August 2004 that he would notify the court

of their abandonment if they did not respond to a letter he sent to their last known

addresses. We construed counsel’s letter to the court as a motion to withdraw, granted

the motion, entered an appearance of Appellants pro se, and vacated oral argument. See

id. at entries for Oct. 14, 2004, and Nov. 8, 2004. 

In November 2004, we became concerned that we no longer had Appellants’ valid

contact information and therefore ordered each Appellant to provide written notice to the

court of his or her current address and telephone number. See id. at entry for Nov. 24,

2004. We stated clearly that if we did not receive responses to that order by December

13, 2004, we would dismiss the appeal. 

Both Appellants failed to comply with our November order. Ms. Jimenez did not
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respond at all, and Mr. Freeman’s former counsel notified us of Mr. Freeman’s current

address in an untimely fashion by way of a letter seeking his reinstatement as counsel. 

We refuse to accept this late filing by Mr. Freeman’s former counsel on behalf of Mr.

Freeman. We therefore dismiss the appeal sua sponte as to both Appellants for lack of

prosecution as reflected by their failure to respond to our order requiring a timely status

report to prevent dismissal. We do so in our “inherent power . . . to manage [our] own

affairs so as to achieve the orderly and expeditious disposition of cases.” Link, 370 U.S.

at 630-31 (citations and quotation omitted). Dismissal of the appeal is a strong sanction

to be sure, but it is no trifling matter for Appellants to abuse our office by disappearing

and failing to meet our deadlines. The federal courts are not a playground for the petulant

or absentminded; our rules and orders exist, in part, to ensure that the administration of

justice occurs in a manner that most efficiently utilizes limited judicial resources. 

Defendants-Appellees/Cross-Appellants (“Appellees”) have filed three motions

addressing Appellants’ failures, each of which is currently pending. The first is a Motion

to Dismiss, the second is a Motion for Just Damages and Costs, and the third is a Motion

to Strike Portions of the Supplemental Appendix. Appellees indicate in their Motion to

Dismiss that they will voluntarily dismiss their cross-appeal if we dismiss the appeal. In

reliance on this, we construe Appellees’ proposed voluntary dismissal as a Motion to

Withdraw the Cross-Appeal, and we grant the motion as construed. Because we are

dismissing the appeal, we deny as moot the Motion to Strike Portions of the Supplemental
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Appendix.

We are also inclined to grant Appellees’ Motion for Just Damages and Costs in the

amount of $1,000. Our power to impose sanctions is plenary: “[t]o deter frivolous and

abusive litigation and promote justice and judicial efficiency, the federal courts are

empowered to impose monetary sanctions, by statutes and the rules of civil and appellate

procedure as well as their inherent right to manage their own proceedings.” Braley v.

Campbell, 832 F.2d 1504, 1510 (10th Cir. 1987); see also FED. R. APP. P. 38 (“If a court

of appeals determines that an appeal is frivolous, it may, after a separately filed motion or

notice from the court and reasonable opportunity to respond, award just damages and

single or double costs to the appellee.”).

We are contemplating imposing $1,000 in damages against each Appellant, but not

against Appellants’ counsel. We note that these damages would have no bearing on any

cost bill imposed by the district court. We would base our imposition of damages on the

frivolity of the appeal, because our review indicates that “the result is obvious, [and] the

appellant’s arguments of error are wholly without merit.” Braley, 832 F.2d at 1510

(internal quotation marks omitted). Appellants were free to file this qui tam action in

hopes that the government would intervene and prosecute the case, thereby creating the

possibility of recovery for the Appellants under the False Claims Act. See 31 U.S.C. §§

3730(d)(1), (2) (providing relators shall receive a percentage of the proceeds of a

successful action, plus reasonable expenses, fees, and costs). But the government’s
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decision not to intervene did not relieve Appellants of their responsibilities as litigants to

refrain from stating frivolous claims for which they could not provide admissible support. 

It seems clear that when the government declined to intervene, Appellants lost interest. 

Nevertheless, the court has expended its resources determining the best course of action

for this appeal. We will do so no longer. 

Due process requires us to give Appellants notice that we are contemplating

imposing sanctions and an opportunity to respond. See Braley, 832 F.2d at 1514 (“The

basic requirements of due process with respect to the assessment of costs, expenses, or

attorney’s fees are notice that such sanctions are being considered by the court and a

subsequent opportunity to respond.”); see also FED. R. APP. P. 38 (requiring court to grant

notice and reasonable opportunity to respond before awarding damages and single or

double costs to appellee). We hereby give Appellants notice that we are contemplating

imposing damages against each of them individually in the amount of $1,000 and we

order Appellants to show cause why we should not impose such damages. Appellants’

response is due by the close of business on April 1, 2005.

For the foregoing reasons, we DISMISS the appeal sua sponte for failure to

prosecute, CONSTRUE Appellees’ Motion to Dismiss Appeal for Failure to File

Opening Brief and Failure to Prosecute as a Motion to Withdraw the Cross-Appeal,

GRANT Appellees’ Motion to Withdraw the Cross-Appeal so construed, DENY as moot

Appellees’ Motion to Strike Portions of the Supplemental Appendix that should have
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been Included in the Original Appendix, and ORDER each Appellant to show cause by

April 1, 2005 why we should not impose costs against him or her in the amount of

$1,000.