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-Appellant.

David W. Kirk of Carter & Kirk, P.C., Oklahoma City, Oklahoma, for

Defendants-Appellees City of Enid and Dennis Madison, and Nathan L. Whatley

and Shawn E. Harrell of McAfee & Taft, a Professional Corporation, Oklahoma

City, Oklahoma, for Dillards, Inc. and Tim King.
1 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)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

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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 violations of court orders and

rules. The district court denied plaintiff’s motion for relief from judgment. 

Because the statute of limitations on his claims has expired, he cannot refile them. 

Plaintiff’s principal argument is that he should not be penalized for his lawyer’s

shortcomings. We affirm. 1

 Appellate Jurisdiction

As a preliminary matter, we discuss our jurisdiction. The district court

dismissed the action on November 1, 2001. Plaintiff filed a motion for relief

from judgment on November 2, and filed a timely notice of appeal from the order

of dismissal on November 30. On December 19 the district court denied relief

from the judgment. Plaintiff did not file an amended notice of appeal, as required
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by Fed. R. App. P. 4(a)(4)(B)(ii) to challenge a post-judgment order. Therefore,

we have appellate jurisdiction over only the November 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). Accordingly, 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 purpose. It would be pointless to

remand for a statement of reasons when those reasons 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 department store, and its manager

wrongfully caused him to be investigated for assaulting 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 collective 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. Plaintiff refiled on January 14, 2000.
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By this time the applicable limitations period apparently had expired. Although

the Oklahoma savings statute provides that the statute of limitations does not bar

a refiled complaint if the original complaint was timely 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 failure 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 cause 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 deadline and warned that failure to

comply with the second order could result in dismissal of the action with

prejudice. Plaintiff filed no pleading by the January 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, the amended complaint again

named him as a defendant. Plaintiff’s attorney claimed his tardiness was due to
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inadvertence, miscalendaring of the due date by his office, and a family

emergency. 

On May 22, 2001, over objection, the district court allowed 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 timely and professional manner,”

but would let the case proceed because of “the harshness of dismissal and the

court’s preference for determining cases on their merits.” 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 “inadvertently overlooking”

court deadlines and similar requirements will be met with the utmost

disapproval and possible sanctions, including, if appropriate,

dismissal of this action. 

Id. at 102. The court imposed no sanction except to order plaintiff to file a

second amended complaint omitting Goodpasture and to 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 did appear. The court

dismissed the action, finding that plaintiff’s counsel had been given sufficient

notice that the case would be dismissed for continued failure to comply with the
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court’s orders and applicable rules and that the inconvenience and expense to the

other parties and the court warranted dismissal. 

Plaintiff filed a motion for relief from judgment under Federal Rule of

Civil Procedure 60(b), and later supplemented the motion with an affidavit from

his attorney. Plaintiff’s attorney sought to excuse his failure to comply with the

court’s order to appear at the status conference by pointing to his personal

obligations and busy litigation schedule. In denying relief, the district court

observed that in addition to failing to appear at the status conference, plaintiff’s

attorney had “a disturbing history of missed deadlines 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 would be effective. The court

further held that dismissal did not penalize plaintiff unjustly because he had

chosen the attorney who had repeatedly failed to comply with court orders and

rules. Plaintiff appeals, claiming dismissal was too harsh a sanction under the

circumstances. 

Analysis

The Federal Rules of Civil Procedure authorize sanctions, 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 comply with court rules or any
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order of the court, see Fed. R. Civ. P. 41(b). As stated in an en banc opinion of

this court, Rule 16(f) “indicates the intent to give courts very broad discretion to

use sanctions where necessary to insure . . . that lawyers and parties . . . fulfill

their high duty to insure the expeditious and sound management 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 court’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 case 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 district court should ordinarily

evaluate the following factors on the record: “(1) the degree of actual prejudice

to the [other party]; (2) the amount of interference 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 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
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have held that “Rule 41(b) involuntary dismissals should be determined by

reference to the Ehrenhaus criteria.” Mobley v. McCormick , 40 F.3d 337, 341

(10th Cir. 1994). Similarly, we conclude that dismissal 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 sanctions imposed for discovery

violations and sanctions imposed for noncompliance with other orders”). The

factors do not create a rigid test but are simply criteria for the court to consider. 

Ehrenhaus , 965 F.2d at 921. 

The record demonstrates that the district court’s decision 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 orders and rules could result in

dismissal of his case; and (3) found that a sanction 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. Nevertheless, the district court dealt

with this criterion when it said: “[D]ismissal does not unjustly penalize the

individual plaintiff in this case in light of the repeated and documented failure of
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his chosen representative. A litigant is bound by the actions of its attorney, and

the relative innocence of the litigant in the failure 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 decision was not an abuse of

discretion. 

Plaintiff argues against the harshness of penalizing him for his attorney’s

conduct. But there is nothing novel here. Those who 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 trial 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 not totally without a remedy. 

There may be a meritorious malpractice claim against 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 district 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 conference without an adequate

excuse. Although the dismissal in Link was categorized as being for “failure to
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prosecute,” the substance of the district court’s ruling was essentially the same as

that of the district court in this case. Justice Harlan wrote: 

There is certainly no merit to the contention that dismissal of

petitioner’s claim because of his counsel’s unexcused conduct

imposes an unjust penalty on the client. Petitioner 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 inconsistent with

our system of representative litigation, in which each party is deemed

bound by the acts of his lawyer-agent and is considered to have

notice of all facts, notice of which can be charged upon the attorney. 

Id. at 633-34 (internal quotation marks omitted). The footnote to this passage

explains: 

Clients have been held to be bound by their counsels’ inaction in

cases in which the inferences of conscious acquiescence have been

less supportable than they are here, and when the consequences have

been more serious. Surely if a criminal defendant may be convicted

because he did not have the presence of mind to repudiate his

attorney’s conduct in the course of a trial, a civil 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. And if an attorney’s

conduct falls substantially below what is reasonable under the

circumstances, the client’s remedy is against the attorney in a suit for

malpractice. But keeping this suit alive merely because plaintiff

should not be penalized for the omissions of his own attorney would

be visiting the sins of plaintiff’s lawyer upon the defendant. 

Moreover, this Court’s own practice is in keeping with this general

principle. For example, if counsel files a petition for certiorari out of

time, we attribute the delay to the petitioner and do not request an

explanation from the petitioner before acting on the 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 passage in
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Link to support rejection of court of appeals’ suggestion 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 excusable neglect). 

We recognize, as plaintiff argues, that this circuit has remanded cases

where the record was not clear that the district court 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, however, the record shows

that the district court considered all the Ehrenhaus factors, including the

culpability of the litigant. The district court acted within its discretion in

dismissing the case. 

AFFIRMED.