* The case is unanimously ordered submitted without o ral argument pursuant

to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G ). This order and judgment is not binding precedent, except under the doctrines o f law of the case, res judicata, and collateral estoppel.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. 

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

### MAY 24 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CURTIS L. MURRAY, JR., Plaintiff - Appellant, v. THE CITY OF TAHLEQUAH, OKLAHOMA; CHEROKEE COUNTY, OKLAHOMA; SURETY COMPANY(S), Defendant - Appellee. No. 00-7007 (D.C. No. 99-CV-522-S) (Eastern District of Oklahoma)

ORDER AND JUDGMENT *

Before BALDOCK , HENRY and LUCERO , Circuit Judges.

Curtis L. Murray, Jr., appearing pro se, appeals fr om the district court’s denial of his motion for continuance and subsequentsua sponte dismissal of his action for failure to appear and prosecute at a status and scheduling conference. Exercising jurisdiction pursuant to 28 U.S.C. § 129 1, we reverse.- 2 -

Murray filed his complaint in the instant action on September 29, 1999, in the United States District Court for the Eastern Di strict of Oklahoma, asserting numerous causes of action arising from an allegedly unlawful arrest. On October 7, 1999, the district court mailed a notice to all parties instructing them to meet as soon as practicable and setting a status and schedu ling conference for October 28, 1999. Murray filed a motion to continue the schedu ling conference on October 25, 1999, on the ground that the defendants had notyet been served. The district court denied the motion the same day, notifying him of its decision both in writing and by leaving a message on his answering m achine. When defendants appeared for the scheduling conference but Murray d id not, the district court entered an order dismissing the case “for failure o f the plaintiff to appear and prosecute at status and scheduling conference.” (I R. Doc. 8.) Murray first argues the district court erred in denying his motion to continue the scheduling conference. We review thatdenial for abuse of discretion. See United States v. Simpson , 152 F.3d 1241, 1251 (10th Cir. 1998). The proffered reason for the continuance was that t he defendants had not yet been served and therefore might not appear. We hold the district court did not abuse its discretion in concluding that Murray’s concern for defendants did not warrant a continuance. If defendants required a continuanc e, they themselves were presumably capable of requesting one.- 3 -

Next, Murray argues the dismissal for failure to ap pear and prosecute was unwarranted and in violation of his right to due pr ocess. A district court has the authority to dismiss a case sua sponte for failure to appear at a scheduling conference, and we will not reverse such a dismissa l unless it was an abuse of discretion. See Link v. Wabash , 370 U.S. 626, 633 (1962); see also Fed. R. Civ. P. 16(f); E.D. Okla. R. 16.1(c). Because the law f avors disposition of litigation on its merits, however, dismissal with prejudice is a severe sanction appropriate only when a less drastic sanction would not serve t he interest of justice. See Meade v. Grubbs , 841 F.2d 1512, 1520 (10th Cir. 1988). Accordingl y, the district court should ordinarily consider and address all of the following factors on the record before opting for the sanction of dismissal: “(1) the degree of actual prejudice to the defendant; (2) the amount of inter ference with the judicial process; . . . (3) the culpability of the litigant; (4) whether the court warned the party in advance that dismissal of the action would be a likely sanction for noncompliance; and (5) the efficacy of lesser sanct ions.” Ehrenhaus v. Reynolds , 965 F.2d 916, 921 (10th Cir. 1992) (internal quotat ions and citations omitted). The district court did not conduct the analysis setforth in Ehrenhaus , thereby preventing “this court from engaging in any meaningful review of the trial court’s decision.” Mobley v. McCormick , 40 F.3d 337, 341 (10th Cir. 1994). Moreover, it is not apparent from the evidence in t he record before us that a- 4 -

proper weighing of the Ehrenhaus factors would necessarily result in the sanction of dismissal with prejudice. We therefore conclude that the district court abused its discretion in dismissing with prejudice Murray’ s action. The unpublished decisions cited by appellees illust rate why dismissal was an abuse of discretion, rather than bolstering thei r contention that dismissal was warranted. In Zenati v. Echostar, Inc. , No. 99-1233, 2000 WL 43719, at **1 (10th Cir. Jan. 20, 2000), the district court dismi ssed the action for failure to prosecute only after it “carefully analyzed the [Eh renhaus ] factors,” including the failure to appear at three scheduling conferences, timely provide discovery, and cooperate in preparing a pretrial order. In the in stant case, by contrast, the record reveals only a single failure to comply with proced ural rules and no analysis of the Ehrenhaus factors. Unlike in Robbalaa v. United States , No. 97-7144, 1998 WL 317475, at **1 (10th Cir. June 11, 1998), Murray was not allowed “a full and fair opportunity to provide justification for his a bsence.” And, unlike in Owens v. Oklahoma University Health Sciences Center , No. 92-6397, 1993 WL 335804, at **1 (10th Cir. Aug. 27, 1993), Murray has not mi srepresented the reason for his failure to appear at the scheduling conference in response to an order to show

cause. More applicable to the present facts are those case s holding that dismissal with prejudice was an abuse of discretion. As in M eade , 841 F.2d at 1520,- 5 -

Murray’s “only infraction was his failure to appearat a hearing on pre-trial matters which were the first noticed for dispositio n in the case.” Although Murray’s “failure to appear at the status conferenc e certainly reflects on his culpability, nothing in the record bears on how thi s single failure might have prejudiced the defendants or the meaningful impact, if any, on the judicial process itself.” Hardage v. James , No. 00-7019, 2000 WL 565057 (10th Cir. May 11, 2000) (unpublished) (citing Murray v. Archambo , 132 F.3d 609, 610-11 (10th Cir. 1998)). To paraphrase Hardage , the proper procedure in this particular case would have been for the district court to issue a s how cause order directing Murray to account for his failure to appear. Then, after an on-record balancing of Murray’s response against the factors set out in Eh renhaus , the court should have determined whether dismissal with prejudice was the appropriate sanction. The judgment of the district court is VACATED and the case is
REMANDED for further proceedings consistent with this opini on. The mandate shall issue forthwith.
ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge