* This order and judgment is not binding precedent, except under the

doctrines of the 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.

** The Honorable Paul H. Roney, Senior Circuit Judge, United States Court of

Appeals for the Eleventh Circuit, sitting by designation.

UNITED STATES COURT OF APPEALS

Filed 11/5/96 TENTH CIRCUIT

 

FRED A. SCHNEBERGER and

ZOLA SCHNEBERGER, )

)

Plaintiffs-Appellants, )

) 

v. ) No. 95-6023

) (CIV-89-1895-L) 

APACHE CORPORATION, ) (W.D. Okla.)

)

Defendant-Appellee. )

 

ORDER AND JUDGMENT*

 

Before BALDOCK, McWILLIAMS, and RONEY** Circuit Judges.

 

This matter is before the court on Appellants’ appeal of the district court’s

dismissal of this case for Appellants’ failure to comply with the terms of the district

court’s order administratively closing the case, which set forth the conditions for

reopening the case. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.
2

Appellants Fred A. Schneberger and Zola Schneberger filed this diversity case in

federal district court over a settlement agreement to clean up alleged contamination of

soil and groundwaters caused by Appellee Apache Corporation. As part of its disposition

of the case, the district court certified two questions to the Oklahoma Supreme Court by

order issued June 15, 1992. On June 16, 1992, the district court issued an order

administratively closing the case without prejudice to reopening the proceedings after the

Oklahoma Supreme Court had answered the certified questions. The order notified the

parties that if the parties did not move to reopen the case within 30 days after the

Oklahoma Supreme Court answered the certified questions, the case would be dismissed

with prejudice.

The Oklahoma Supreme Court answered the certified questions in a published

opinion filed on October 25, 1994. Appellants filed a motion for rehearing in the

Oklahoma Supreme Court, and that court denied the motion on January 18, 1995. On

November 30, 1994, the district court, on its own, issued an order dismissing the case

with prejudice, noting that no party had complied with the conditions for reopening the

case set forth in its order administratively closing the case. On December 30, 1994,

Appellants filed a notice of appeal with regard to the district court’s order dismissing the

case with prejudice.

Subsequently, Appellants filed in the district court a motion to vacate the order

dismissing the case with prejudice and a motion for relief under Rule 60(b). On
3

September 8, 1995, the district court denied the motions, ruling that Appellants had

ignored the plain language of the order administratively closing the case. The district

court further ruled that Appellants had failed to explain why they did not inform the court

that they had filed a motion for rehearing with the Oklahoma Supreme Court and that they

had otherwise failed to articulate a convincing ground for relief under either Rule 59(e) or

Rule 60(b).

We review the district court’s dismissal of the case for an abuse of discretion. See

Link v. Wabash R.R. Co., 370 U.S. 626, 629-33 (1962) (affirming district court’s

dismissal of a case based on counsel’s failure to appear for a pretrial conference under an

abuse of discretion standard); see also Pioneer Investment Svcs. Co. v. Brunswick Assoc.

Ltd. Partnership, 507 U.S. 380, 396-97 (1993) (reaffirming Link principle that clients may

be held accountable for the acts of their attorneys). A district court abuses its discretion

when its decision is arbitrary, capricious, or whimsical. United States v. Wright, 826 F.2d

938, 943 (10th Cir. 1987).

In this case the district court did not act arbitrarily, capriciously, or whimsically. It

administratively closed the case and notified the parties in plain language that they could

reopen it within 30 days of the day the Oklahoma Supreme Court answered the certified

questions. The record reflects that no party timely sought to reopen the case. For this

reason, the district dismissed the case with prejudice more than 30 days after October 25,

1994, the date the opinion answering the certified questions was filed.
1 Appellee’s motion to dismiss this appeal is moot in light of our affirmance

of the district court’s order.

4

While the district court’s dismissal of the case with prejudice was harsh in light of

Appellants’ motion for rehearing, which was pending before the Oklahoma Supreme

Court on the date the district court dismissed the case, Appellants did not apprise the

district court of that motion. The district court did not abuse its discretion in dismissing

the case in accordance with the terms of the order administratively closing the case.1

AFFIRMED.

Entered for the Court,

Bobby R. Baldock