1 This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. The court generally disfa vors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court’s General Order filed November 29, 1993. 151 F.R.D. 470. UNITED STATES COURT OF APPEALS Filed 3/18/96 FOR THE TENTH CIRCUIT

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ROY W. COWINS, ) ) Plaintiff-Appellant, ) ) No. 95-7044 v. ) (D.C. No. CV-94-610) ) (E.D. Oklahoma) DEPARTMENT OF VETERAN AFFAIRS; ) JESSE BROWN, Secretary; JOE ) SMITH, ) ) Defendants-Appellees. )

_______________ ORDER AND JUDGMENT 1

________________ Before PORFILIO, MCKAY, and KELLY, Circuit Judges.

_______________ After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordere d submitted2

without oral argument. This is an appeal from an order dismissing plaintif f’s civil rights complaint because his counsel did not attenda pre-trial status and scheduling conference. According to the record before us, the court set the conference for December 22, 1 994. On December 21, 1994, plaintiff’s counsel filed a mot ion for continuance in which counsel stated a death had occ urred in his “immediate family” and that he had to fly to Greenv ille, South Carolina, for a funeral scheduled at 2:00 PM that d ay. The motion was accompanied by counsel’s statement made under 2 8 U.S.C. § 1764 (unsworn statements made under penalty of perjury). The statement recited and verified the facts asserted in the moti on. Also included in the filing was a statement of counsel a dvising the court although formal service had not been obtainedon the defendant government parties, a copy of the motion and the advisory were served on the United States Attorney. On the following day, a minute order was entered di smissing the case for the failure of “plaintiff’s counsel to appear at Status & Scheduling conference.” Plaintiff’s couns el moved for reconsideration restating the grounds upon which th e motion for continuance had been filed and asking for reinstate ment of the cause. A subsequent minute order was entered denyi ng the motion for reconsideration because “plaintiff made no effo rt to prove the matter, and, not only did he not appear at the Stat us & Scheduling3

Conference but he did not retain local counsel as r equired by Local Rule 4 (h).” The court also noted service ha d not been accomplished “within the last six weeks.” This app eal followed. We judge the dismissal of a case following non-appe arance of counsel by an abuse of discretion standard. Ikerd v. Lacy, 852 F.2d 1256, 1258 (10th Cir. 1988). As we noted in Ikerd , sanction of counsel for failure to obey a scheduling order i s provided in Fed. R. Civ. P. 16(f). Id. Nonetheless, the sanction should be appropriate to the offense. Here counsel informed the court of the family emergency with which he was faced and di d so under the penalty of perjury. Nothing in the record indicate s his assertions were untrue, that he filed the motions p urely for the purpose of delay, or that anyone was prejudiced by his conduct. Moreover, it appears the government was put on noti ce, but did not appear to stake out a position in the case. Under these circumstances, the failure of service to the contra ry notwithstanding, we believe the sanction was not in keeping with whatever offense was committed by counsel and that the dismissal of the case was an abuse of discretion. The judgment of the district court is REVERSEDand the cause
REMANDEDwith instructions to reinstate the complaint. Entered for the Court John C. Porfilio Circuit Judge