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

### DEC 4 2002 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROGER D. GRIPE,

Plaintiff - Appellant,

v. CITY OF ENID, OKLAHOMA, a municipal corporation and political subdivision of the State of Oklahoma; DENNIS MADISON, individually and in his official capacity as Chief of Police for the City of Enid; TIM KING, individually and as manager of the Dillards Department Store, Enid, Oklahoma; DILLARDS, INC., a Delaware Corporation doing business in the State of Oklahoma,

Defendants - Appellees. No. 01-6430

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

(D.C. No. CIV-00-125-L)

Submitted on the briefs: David J. Batton, Norman, Oklahoma, for Plaintiff-Ap pellant. David W. Kirk of Carter & Kirk, P.C., Oklahoma City , Oklahoma, for Defendants-Appellees City of Enid and Dennis Madiso n, and Nathan L. Whatley and Shawn E. Harrell of McAfee & Taft, a Profession al Corporation, Oklahoma City, Oklahoma, for Dillards, Inc. and Tim King.1 After examining the briefs and appellate record, th is panel has determined

unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.

-2- Before HENRY , ANDERSON , and HARTZ , Circuit Judges.

HARTZ , Circuit Judge.

Plaintiff Roger D. Gripe appeals the district court ’s order dismissing his complaint as a sanction for his lawyer’s repeated v iolations of court orders and rules. The district court denied plaintiff’s motio n for relief from judgment. Because the statute of limitations on his claims ha s expired, he cannot refile them. Plaintiff’s principal argument is that he should no t be penalized for his lawyer’s shortcomings. We affirm. 1 Appellate Jurisdiction As a preliminary matter, we discuss our jurisdictio n. The district court dismissed the action on November 1, 2001. Plaintif f filed a motion for relief from judgment on November 2, and filed a timely not ice of appeal from the order of dismissal on November 30. On December 19 the di strict court denied relief from the judgment. Plaintiff did not file an amend ed notice of appeal, as required-3-

by Fed. R. App. P. 4(a)(4)(B)(ii) to challenge a po st-judgment order. Therefore, we have appellate jurisdiction over only the Novemb er 1 judgment of dismissal and not over the December 19 order denying post-judgment relief. Jernigan v. Stuchell , 304 F.3d 1030, 1031 (10th Cir. 2002). Accordingl y, we do not address plaintiff’s appellate arguments related to the post -judgment proceedings. The post-judgment order does, however, reveal some of the district court’s reasons for dismissing the case, and we consider it for that pu rpose. It would be pointless to remand for a statement of reasons when those reason s have already been expressed on the record.
Facts Plaintiff, a police officer, filed his original complaint on September 11, 1998. The complaint alleged that his federal civil rights and various state-law rights were violated when defendant Dillards, a dep artment store, and its manager wrongfully caused him to be investigated for assaul ting his wife, who was a store employee. It further alleged that the City of Enid , its police chief, and police captain Tim Goodpasture wrongfully pursued assault charges against him as punishment for his involvement in a police collecti ve bargaining unit. The district court dismissed the complaint without prejudice on January 15, 1999, because plaintiff had not taken any action in the litigation, having failed even to perfect service on the defendants. Plainti ff refiled on January 14, 2000.-4-

By this time the applicable limitations period appa rently had expired. Although the Oklahoma savings statute provides that the statute of limitations does not bar a refiled complaint if the original complaint was t imely filed and the refiling occurs within a year of a non-merits dismissal of the original complaint, Okla. Stat. tit. 12, § 100, the second complaint did not invoke this statute. Consequently, on February 7, 2000, the City and its police chief moved to dismiss the action on the ground that the statute of limitations had run. On September 29, 2000, the district court ruled that plaintiff would be allowed to file an amended complaint to cure his fa ilure to invoke the Oklahoma savings statute. Plaintiff was granted fifteen days to file an amended complaint. Plaintiff missed the deadline. On January 12, 2001 , the district court ordered plaintiff to file an amended complaint, or show cau se for a failure to do so, no later than January 18, 2001. The order expressed the court’s concern that no effort had been made to comply with its prior deadl ine and warned that failure to comply with the second order could result in dismis sal of the action with prejudice. Plaintiff filed no pleading by the Janu ary 18 deadline. On January 23 plaintiff filed an amended complaint accompanied by a motion to file it out of time. Although plaintiff had entered into a stipulated dismissal of defendant Goodpasture in June 2000, th e amended complaint again named him as a defendant. Plaintiff’s attorney cla imed his tardiness was due to-5-

inadvertence, miscalendaring of the due date by his office, and a family
emergency. On May 22, 2001, over objection, the district courtallowed the amended complaint to stand. The court stated that it was “ troubled by plaintiff’s counsel’s inability to comply with the court’s orders in a ti mely and professional manner,” but would let the case proceed because of “the hars hness of dismissal and the court’s preference for determining cases on their m erits.” Aplt. App. doc. 15, at 101-02. The court issued the following warning: [T]he court expects and directs plaintiff’s counsel to fully comply with all orders of the court and to comply with all applicable federal and local rules. Further instances of “inadvertent ly overlooking” court deadlines and similar requirements will be me t with the utmost disapproval and possible sanctions, including, if appropriate, dismissal of this action. Id. at 102. The court imposed no sanction except to o rder plaintiff to file a second amended complaint omitting Goodpasture and t o pay Goodpasture’s attorney fees for having to respond to the amended complaint. Plaintiff complied with the order. On November 1, 2001, plaintiff’s attorney failed to appear at a court-ordered status conference. Defense counsel d id appear. The court dismissed the action, finding that plaintiff’s coun sel had been given sufficient notice that the case would be dismissed for continu ed failure to comply with the-6-

court’s orders and applicable rules and that the in convenience and expense to the other parties and the court warranted dismissal. Plaintiff filed a motion for relief from judgment u nder Federal Rule of Civil Procedure 60(b), and later supplemented the m otion with an affidavit from his attorney. Plaintiff’s attorney sought to excus e his failure to comply with the court’s order to appear at the status conference bypointing to his personal obligations and busy litigation schedule. In denyi ng relief, the district court observed that in addition to failing to appear at t he status conference, plaintiff’s attorney had “a disturbing history of missed deadli nes and noncompliance with the court’s orders in this case.” Id. doc. 30, at 266. The court held that plaintiff had failed to justify his request for relief under Rule 60(b), in part because there was no reason to believe that another warning wouldbe effective. The court further held that dismissal did not penalize plaint iff unjustly because he had chosen the attorney who had repeatedly failed to co mply with court orders and rules. Plaintiff appeals, claiming dismissal was t oo harsh a sanction under the circumstances. Analysis The Federal Rules of Civil Procedure authorize sanc tions, including dismissal, for failing to appear at a pretrial or scheduling conference, see Fed. R. Civ. P. 16(f) and 37(b)(2)(C), and for failing to c omply with court rules or any-7-

order of the court, see Fed. R. Civ. P. 41(b). As stated in an en banc op inion of this court, Rule 16(f) “indicates the intent to giv e courts very broad discretion to use sanctions where necessary to insure . . . that lawyers and parties . . . fulfill their high duty to insure the expeditious and soundmanagement of the preparation of cases for trial.” Mulvaney v. Rivair Flying Serv., Inc. (In re Baker) , 744 F.2d 1438, 1440 (10th Cir. 1984) (en banc). We review for an abuse of discretion the district c ourt’s decision to impose the sanction of dismissal for failure to follow court orders and rules. Archibeque v. Atchison, Topeka & Santa Fe Ry. Co. , 70 F.3d 1172, 1174 (10th Cir. 1995). “It is within a court’s discretion to dismiss a cas e if, after considering all the relevant factors, it concludes that dismissal alone would satisfy the interests of justice.” Ehrenhaus v. Reynolds , 965 F.2d 916, 918 (10th Cir. 1992). Before imposing dismissal as a sanction, a districtcourt should ordinarily evaluate the following factors on the record: “(1) the degree of actual prejudice to the [other party]; (2) the amount of interferenc e with the judicial process; . . . (3) the culpability of the litigant; (4) whet her the court warned the party in advance that dismissal of the action would be a lik ely sanction for noncompliance; and (5) the efficacy of lesser sanctions.” Id. at 921 (internal quotation marks and citations omitted) (dismissing case as sanction for discovery violation). Although Ehrenhaus involved sanctions for discovery violations, we-8-

have held that “Rule 41(b) involuntary dismissals s hould be determined by reference to the Ehrenhaus criteria.” Mobley v. McCormick , 40 F.3d 337, 341 (10th Cir. 1994). Similarly, we conclude that dism issal as a sanction under Rules 16(f) and 37(b)(2)(C) should ordinarily be evaluated under the same factors. See id. (finding “no principled distinction between sancti ons imposed for discovery violations and sanctions imposed for noncompliance with other orders”). The factors do not create a rigid test but are simply c riteria for the court to consider. Ehrenhaus , 965 F.2d at 921. The record demonstrates that the district court’s d ecision to dismiss the action was based on the appropriate considerations. The district court (1) noted on at least two occasions that plaintiff’s failure to follow court orders and rules had inconvenienced and prejudiced the defendants and the court; (2) twice clearly warned plaintiff that failure to follow court order s and rules could result in dismissal of his case; and (3) found that a sanctio n less severe than dismissal would not be effective. As for the remaining criterion mentioned in Ehrenhaus —“the culpability of the litigant,” id. at 921—the record contains no direct evidence regarding what plaintiff knew of his attorney’s derelictions. Nev ertheless, the district court dealt with this criterion when it said: “[D]ismissal doe s not unjustly penalize the individual plaintiff in this case in light of the r epeated and documented failure of-9-

his chosen representative. A litigant is bound by the actions of its attorney, and the relative innocence of the litigant in the failu re does not constitute grounds for relief.” Aplt. App. doc. 30, at 269. Thus, the district court unquestionably considered the appropriate factors in deciding to dismiss plaintiff’s case, and its decis ion was not an abuse of discretion. Plaintiff argues against the harshness of penalizin g him for his attorney’s conduct. But there is nothing novel here. Those w ho act through agents are customarily bound by their agents’ mistakes. It is no different when the agent is an attorney. When an attorney drafting a contract omits an important clause, the client who signs the contract is bound. When a tri al attorney is poorly prepared to cross-examine an expert witness, the client suffers the consequences. (It should be noted, however, that the mistreated client is no t totally without a remedy. There may be a meritorious malpractice claim agains t the attorney.) Virtually the same issue came before the Supreme Court in Link v. Wabash
R.R. Co. , 370 U.S. 626 (1962). The Court upheld the distri ct court’s inherent power to dismiss an action with prejudice when the plaintiff’s attorney, who had a history of dilatory conduct, missed a pretrial conf erence without an adequate excuse. Although the dismissal in Link was categorized as being for “failure to-10-

prosecute,” the substance of the district court’s ruling was essentially the same as that of the district court in this case. Justice H arlan wrote: There is certainly no merit to the contention that dismissal of petitioner’s claim because of his counsel’s unexcus ed conduct imposes an unjust penalty on the client. Petitione r voluntarily chose this attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected agent. Any other notion would be wholly i nconsistent with our system of representative litigation, in which e ach party is deemed bound by the acts of his lawyer-agent and is consid ered to have notice of all facts, notice of which can be charged upon the attorney. Id . at 633-34 (internal quotation marks omitted). Th e footnote to this passage explains: Clients have been held to be bound by their counsel s’ inaction in cases in which the inferences of conscious acquiesc ence have been less supportable than they are here, and when the c onsequences have been more serious. Surely if a criminal defendant may be convicted because he did not have the presence of mind to rep udiate his attorney’s conduct in the course of a trial, a civi l plaintiff may be deprived of his claim if he failed to see to it that his lawyer acted with dispatch in the prosecution of his lawsuit. A nd if an attorney’s conduct falls substantially below what is reasonabl e under the circumstances, the client’s remedy is against the attorney in a suit for malpractice. But keeping this suit alive merely be cause plaintiff should not be penalized for the omissions of his ow n attorney would be visiting the sins of plaintiff’s lawyer upon the defendant. Moreover, this Court’s own practice is in keeping w ith this general principle. For example, if counsel files a petitio n for certiorari out of time, we attribute the delay to the petitioner and do not request an explanation from the petitioner before acting on th e petition. Id . at 634 n.10 (citations omitted). Cf. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship , 507 U.S. 380, 396 (1993) (quoting from above pass age in-11-

Link to support rejection of court of appeals’ suggesti on that it is inappropriate to penalize client for attorney’s error when assessing whether attorney’s filing untimely proof of claim in bankruptcy court was exc usable neglect). We recognize, as plaintiff argues, that this circui t has remanded cases where the record was not clear that the district co urt evaluated the fault of the parties and other applicable factors. See, e.g. , Ocelot Oil Corp. v. Sparrow Indus. , 847 F.2d 1458, 1465 (10th Cir. 1988). Here, howe ver, the record shows that the district court considered all the Ehrenhaus factors, including the culpability of the litigant. The district court ac ted within its discretion in dismissing the case.
AFFIRMED.