## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 27 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff-Appellant, v. NORRIS, a Dover Resources Company, Defendant-Appellee. No. 99-5068 N. Dist. Okla. (D.C. No. 99-CV-195)

MELVIN E. EASILEY, Reverend; MARVIN SAMPLE; DAVID SAWYER; TERRI MCCONNELL; GALIAN MURPHY; KENNETH CARRUTHERS; DONALD MCCONNELL; CORPORAL TATE, JR.; RAPHAEL EDWARDS; O.Z. WALKER, JR.; LAWRENCE SANDERS; RICHARD PONDS; EZELL CHATMAN; GEORGE MCCURDY; DAVID BURKS; SHAWN CARRUTHERS; REVEREND RUTH,

Plaintiffs - Appellants,

v. NORRIS, a Dover Resources Company, Defendant - Appellee. No. 99-5089 N. Dist. Okla. (D.C. No. 99-CV-196)* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** The Honorable Zita Weinshienk of the United State s District Court for the District of Colorado, sitting by designation. -2- ORDER AND JUDGMENT *

Before HENRY , PORFILIO , Circuit Judges and WEINSHIENK , District Judge. **

This order disposes of two lawsuits with a most acr imonious litigation history. On February 25, 1999, appellee Norris fil ed a lawsuit against Reverend Melvin E. Easiley, a Baptist Minister and an offici al of the NAACP in the District Court of Tulsa County (hereinafter, the “underlyingstate court action”). In the underlying state court action, which is pending, No rris alleges that Rev. Easiley’s purported assistance to then current and former Norris employees interfered with its collective bargaining agreement. Pursuant to this agreement, the United Steel Workers of America Union is the sole bargaining age nt between Norris’s employees and Norris.-3-

Subsequent to the filing of the underlying state co urt action, Rev. Easiley and several Norris employees filed charges with the EEOC alleging that Norris pursued the state court action to retaliate againstRev. Easiley’s for assisting several Norris employees with potential Title VII c laims. On March 12, 1999, both Rev. Easiley and the EEOC filed a federal acti on making similar allegations of retaliation against Norris. In each action, Rev . Easiley and the EEOC sought to enjoin Norris from proceeding with the state court action. On March 17, 1999, the district court denied the motions for injunctiv e relief. Rev. Easiley and the EEOC appeal these denials of injunctive relief purs uant to 28 U.S.C. § 1292. Because of the substantially similar arguments set forth by the appellants, we consolidated the cases for disposition.

DISCUSSION EEOC v. Norris Appeals from an interlocutory order granting or denying a preliminary injunction do not divest the district court of juri sdiction to proceed with the underlying action of the merits. See State of Colorado v. Idarado Mining Co. , 916 F.2d 1486, 1490 n.2 (10th Cir. 1990). In Augus t 1999, the district court requested a case management plan from the parties. When neither party complied, the court sue sponte dismissed the underlying action without prejudice,-4-

noting that the parties agreed that the “case has b een fully decided on the merits” and that “all issues before [the district court] have been adjudicated.” See EEOC v. Norris , No. 99-CV-195 (N. Dist. Okla. August 17, 1999) at1-2. At oral argument, the parties did not adequately advise thi s court as to the proceedings in the underlying action. The district court’s dismis sal was a final adjudication on the merits. The appeal from the denial of the preliminary injun ction is therefore mooted by the fact that the district court proceede d to adjudicate the underlying federal action on the merits. A preliminary injunc tion is by its nature a temporary measure intended to furnish provisional p rotection while awaiting a final judgment on the merits. See United States ex rel. Berger v. Lawrence , 848 F.2d 1502, 1512 (10th Cir. 1988). Because the unde rlying action has been dismissed, no party has a “cognizable interest in the appeal’s outcome.” Keyes v School Dist. No. 1 , 895 P.2d 659, 663 (10th Cir. 1990). The EEOC contends that we have appellate jurisdicti on over the district court’s denial of the preliminary injunction becaus e we are not precluded from granting the EEOC effective relief. Plaintiff’s ar gument is misplaced. “With the entry of the final judgment, the life of the prelim inary injunction [comes] to an end, and it no longer ha[s] a binding effect on any one.” Lawrence , 848 F.2d at 1512 (internal quotation omitted). See also SEC v. Mount Vernon Mem’l Park ,-5-

664 F.2d 1358, 1361-62 (9th Cir. 1982) (applying th e “long-recognized” doctrine that the propriety of preliminary relief merges int o a decision on the merits). Accordingly, we dismiss the appeal in case number 9 9-5068 as moot.

Easiley v. Norris Before this case was orally argued, Rev. Easiley fi led a motion to dismiss the underlying federal action without prejudice. N orris filed a motion to dismiss with prejudice, largely based on Rev. Easiley’s app arent discovery abuses. Although the underlying federal action had not beendismissed at the time of oral argument, neither party informed this court of thes e motions pending before the district court. In an apparent attempt to evade th e magistrate judge’s imposition of further discovery sanctions, and likely attorney s fees, Rev. Easiley subsequently filed a motion to dismiss with prejudi ce. The district court granted the motion, and declared all other pending motions moot, save for Norris’s pending motion for sanctions. Norris now seeks dis missal of Rev. Easiley’s appeal. For substantially the same reasons iterate d above, the appeal in case number 99-5089 appeal is now moot and is dismissed.-6- CONCLUSION Accordingly, we DISMISS the appeals in cases number ed 99-5068 and 99-
5089 as MOOT. Entered for the Court,

Robert H. Henry Circuit Judge