1 This order and judgment is not binding precedent, except under the doctrines of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

_______________

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 JUDGMENT1

________________

Before PORFILIO, MCKAY, and KELLY, Circuit Judges.

_______________

After examining the briefs and appellate record, this 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 ordered submitted
2

without oral argument. 

This is an appeal from an order dismissing plaintiff’s civil

rights complaint because his counsel did not attend a pre-trial

status and scheduling conference. According to the record before

us, the court set the conference for December 22, 1994. On

December 21, 1994, plaintiff’s counsel filed a motion for

continuance in which counsel stated a death had occurred in his

“immediate family” and that he had to fly to Greenville, South

Carolina, for a funeral scheduled at 2:00 PM that day. The motion

was accompanied by counsel’s statement made under 28 U.S.C. § 1764

(unsworn statements made under penalty of perjury). The statement

recited and verified the facts asserted in the motion. Also

included in the filing was a statement of counsel advising the

court although formal service had not been obtained on 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 dismissing

the case for the failure of “plaintiff’s counsel to appear at

Status & Scheduling conference.” Plaintiff’s counsel moved for

reconsideration restating the grounds upon which the motion for

continuance had been filed and asking for reinstatement of the

cause. A subsequent minute order was entered denying the motion

for reconsideration because “plaintiff made no effort to prove the

matter, and, not only did he not appear at the Status & Scheduling
3

Conference but he did not retain local counsel as required by

Local Rule 4 (h).” The court also noted service had not been

accomplished “within the last six weeks.” This appeal followed.

We judge the dismissal of a case following non-appearance 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 is 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 did so under the

penalty of perjury. Nothing in the record indicates his

assertions were untrue, that he filed the motions purely for the

purpose of delay, or that anyone was prejudiced by his conduct. 

Moreover, it appears the government was put on notice, but did not

appear to stake out a position in the case. Under these

circumstances, the failure of service to the contrary

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 REVERSED and the cause

REMANDED with instructions to reinstate the complaint.

Entered for the Court

John C. Porfilio

Circuit Judge