* This order and judgment is not binding precedent, e xcept under the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. 

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

### FEB 3 1999 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

KIMBERLY MARTINEZ, Plaintiff-Appellant,

v. TOBY ALIRE; WAL-MART STORES, INC., doing business as Sam’s Club, Defendants-Appellees. No. 97-2397 (D.C. No. CIV 97-174) (Dist. New Mex.)



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, ANDERSON and BRISCOE, Circuit Judges.

Kimberly Martinez appeals from the district court’s order dismissing her complaint with prejudice. The district court ruled that her failure to serve a responsive motion to Wal-Mart’s motion to dismiss c onstituted consent to grant1 That Rule states that “[f]ailure to serve . . . aresponse in opposition to

any motion constitutes consent to grant the motion. ” D.N.M.LR-Civ. 7.5(b).

2 Wal-Mart’s Motion to Exclude Motions, Briefs and Memoranda is denied.

3 Under the District of New Mexico Local Rules, the movant serves the opposing party with any pre-judgment motions and th e opposing party responds to the movant. Once both parties have finished respon ding and replying, the movant then files all documents as a package with the court. See D.N.M.LR-Civ. 7.3. Both parties to this appeal are under the impressio n that the entire package was required to be filed by October 16, 1997, under the terms of the Pretrial Report. -2- the motion pursuant to D.N.M.LR-Civ. 7.5(b), 1 and, additionally, that the motion was well-taken. We reverse. 2 Kimberly Martinez sued Wal-Mart and her co-worker T oby Alire alleging assault, battery, and negligent and intentional inf liction of emotional distress. She sued Wal-mart alone for negligent supervision. These claims arose out of Mr. Alire’s alleged physical and psychological sexu al harassment of Ms. Martinez, as well as Wal-Mart’s unreasonable failur e to stop his behavior and its attempt to cover it up. When Mr. Alire was dismiss ed as a defendant without prejudice, Wal-Mart removed the case to federal cou rt. After receiving the case, the district court approv ed an Initial Pre-Trial Report requiring that all pre-trial motions be file d by October 16, 1997; 3 any motions filed after that date would “be considered untimely in the discretion of the Court.” Aplt. App. at 21. On October 16, 1997 , Wal-Mart served upon Ms. Martinez a motion to dismiss. In a letter to the m agistrate judge, Wal-Mart asked-3-

the court to “accommodate [its] service of the Moti on today,” id. at 57, but did not file a motion for an extension of time pursuantto Fed.R.Civ.P. 16(b) and D.N.M.R.LR-Civ. 16.1 (“Any deadlines established inthe Initial Pretrial Report will govern actions in pretrial matters once the re port is entered by the Court. Any modification of the deadlines, whether or not o pposed, will require a showing of good cause and Court approval.”). Appar ently neither the magistrate judge nor the district court ever replied to this i nformal request. Ms. Martinez’ counsel, however, responded by letter directly to d efense counsel, with a copy to the magistrate judge: Since there has been no motion filed to extend the time periods of the IPTR, and no motion has been filed, or requested to be filed, asking the Court to grant you leave to file your motion late, I am assuming that I do not have to respond to your Motion or Bri ef. If I am in error, please let me know. Id. at 58. A few weeks later, on November 12, 1997, c ounsel wrote again with a copy to the magistrate judge, “I am reluctant to di shonor the Court’s deadline by responding to your motion. . . . I would be ready, willing, and able to respond to your motion if it can be filed with the Court’s ble ssing.” Id. at 60. The next day, Wal-Mart filed its motion to dismiss with the district court, almost one month after the deadline for filing pret rial motions had passed. No motion for an extension of time was ever filed. Wi thout notifying the plaintiff that it would consider Wal-Mart’s untimely motion, the district court granted the4 The Order also summarily states that Wal-Mart’s m otion is “well-taken.”

Aplt. App. at 29. If the district court meant to d ismiss the action on the merits as well as for non-compliance with the rule, it erred in doing so. The court never notified Ms. Martinez it would accept Wal-Mart’s un timely filing, cf. Stewart Title Guar Co. v. Cadle Co. , 74 F.3d 835, 836-37 (7th Cir. 1996) (reversing th e trial court’s unexpected dismissal and cautioning a gainst “surprise dispositive action”), and Ms. Martinez claims are not frivolous so as to deny her the right to such notice, cf. McKinney v. State of Okla. , 925 F.2d 363, 365 (10th Cir. 1991) (upholding dismissal of case without notice where d istrict court found case “frivolous, improper and totally void of merit”). -4- motion, dismissing Ms. Martinez’ complaint with pre judice due to her failure to respond. 4
We review for an abuse of discretion a district cou rt decision to dismiss a case with prejudice due to non-compliance with a lo cal rule. See Murray v. Achambo , 132 F.3d 609, 610 (10th Cir. 1998). We have held that the court must consider three factors in deciding whether dismissa l for the failure to file a responsive pleading is proper: “‘1) the degree of actual prejudice to the defendant[s]; 2) the amount of interference with th e judicial process; [and] 3) the culpability of the litigant.’” Id. at 611 (quoting Hancock v. City of Oklahoma , 857 F.2d 1394, 1396 (10th Cir. 1988)); see also Miller v. Department of Treasury , 934 F.2d 1161, 1162 (10th Cir. 1991). “[O]nly when the se aggravating factors outweigh[] the judicial system’s strong predisposit ion to resolve cases on their merits is outright dismissal with prejudice an appr opriate sanction.” Hancock, 857 F.2d at 1396.-5-

Under our cases, the district court abused its disc retion by summarily dismissing with prejudice Ms. Martinez’ action with out any analysis of whether dismissal was appropriate. See Miller , 934 F.2d at 1162. Moreover, on this record we are convinced dismissal was not appropriate. First, Ms. Martinez’ failure to serve a response did not harm defendant or the judicial process. She was “ready, willing and able” to respond, and would not have caused any material delay had she been informed the court would accept Wal-Mart’s untimely motion. Second, Ms. Martinez is hardly culpable. Defendantfiled past the deadline and without moving for an extension of time. The courtnever gave her notice that it would consider the untimely dismissal motion, and h er letters indicate an understandable confusion about whether her response was required. At worst, Ms. Martinez’ failure to respond was “a single inci dent, completely unintentional and not contumacious in nature.” Hancock, 857 F.2d at 1396. Dismissal with prejudice was not warranted.
We REVERSE the trial court’s order dismissing Ms. Martinez’ a ction with prejudice and REMAND the case for further proceedings.

ENTERED FOR THE COURT
Stephanie K. Seymour Chief Judge