* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### MAY 24 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

FLOYD P. DAVIS, on behalf of himself, Plaintiff-Appellant,

v. SIMON PROPERTY GROUP, formerly known as Simon DeBartolo Group, doing business as Oakwood Mall, Defendant-Appellee, and LES GARRETT,

Defendant. No. 00-6369 (D.C. No. 00-CV-371-R) (W.D. Okla.)

ORDER AND JUDGMENT *

Before EBEL , ANDERSON , and KELLY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of1 In his complaint below, Mr. Davis named Les Garrettas an additional

defendant. The district court dismissed Mr. Garrett from the lawsuit. Mr. Davis does not challenge that dismissal on appeal. -2- 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. Plaintiff Floyd Davis appeals from the district cou rt’s grant of summary judgment in favor of defendant Simon Property Group (Simon). Exercising our jurisdiction pursuant 28 U.S.C. § 1291, we affirm. 1 A. Facts and Procedural Background Appearing pro se , Mr. Davis brought this diversity action against S imon, alleging breach of contract and fraudulent misrepre sentation under Oklahoma law. The dispute arose from Mr. Davis’s effort to develo p a movie theater at a shopping mall in Enid, Oklahoma. Simon served as t he commercial leasing agent for the mall and its owners. On August 31, 2000, Simon moved for summary judgment on several grounds. It sent a copy of the motion to the post office box in Waukegan, Illinois, identified as Mr. Davis’s address in his complaint. Under a local rule requiring responsive pleadings to be filed within eighteen days, Mr. Davis’s response was due no later than September 18. By the 18th, howev er, he had not filed a response nor had he sought additional time by whichto file one.2 Western District of Oklahoma Local Civil Rule 7.1(e ), which was

renumbered 7.2(e) effective October 1, 2000, states: “Each party opposing a motion, application or objection shall file with th e Clerk and serve upon all other parties a response within eighteen (18) days from t he date of the motion, application or objection was filed . . . . Any motion, application or objection which is not opposed within eighteen (18) days may, in the discretion of the Court, be deemed confessed.” -3- On September 22, Simon filed a motion asking the district court to deem its summary judgment motion confessed. The motion rest ed on Local Rule 7.1(e), which provides that a motion not opposed within eig hteen days may be deemed confessed. 2 Mr. Davis did respond to that motion, arguing that his post office box was “inaccessible” between September 1 to September15, and denouncing Simon’s failure to serve an additional copy of its summary judgment motion on him personally or to serve him by fax machine. Rec . Doc. 24. Mr. Davis attached a notice from the postal service revealing why he w as denied access to his post office box: he had not paid his fees. Rec. Doc. 2 4, attachment entitled “P.O. Box Fee Due.” According to the fee notice, his box was “reopened” on September 15 when he made the appropriate payment. Id. Mr. Davis also asked the district

court to give him eighteen days from September 15, until October 3, within which to file a response to Simon’s summary judgment moti on. Rejecting Mr. Davis’s request for an extension of t ime as arriving “too late,” the district court deemed the facts set forth in Simon’s summary judg ment3 Mr. Davis claims he did submit a timely witness and exhibit list. He

informs that he faxed such a list from a Kinko’s co py store near his home in Illinois to another Kinko’s in Oklahoma City, and t hat a Kinko’s staff member there “handled the transport” of the document to th e court. The document, however, never arrived at the court. The most Mr. Davis can say, then, is that he filed the document with Kinko’s, not the district court

. -4- motion admitted. Rec. Doc. 25 at 3. The district court then granted summary judgment in favor of Simon. Id. The district court readily acknowledged that its di sposition was a harsh sanction for Mr. Davis’s failure to file a timely r esponse to the summary judgment motion. But the court also noted that its decision was informed and supported by still another, earlier failure-to-respond on the pa rt of Mr. Davis. He did not submit a final witness and exhibit list to the court, despite a directive contained in the court’s scheduling order to do so by August 1. The scheduling order warned the parties that “except for good cause shown, no w itness shall be permitted to testify and no exhibit will be admitted . . . unles s such witness or exhibit was listed [by August 1].” Rec. Doc. 19, Ex. A at 1. The district court was prepared to enforce this crippling evidentiary burden, which obviously would have precluded Mr. Davis frompresenting any evidence at trial. Said the court: “[P]ermitting Plaintiff ad ditional time in which to respond would not be of assistance, as . . . it would be impossible for him to prevail [at trial].” Rec. Doc. 25 at 2. 3-5-

Viewed in its most generous light, Mr. Davis’s pro se appeal challenges two aspects of the district court’s ruling. First, he attacks the grounds offered by the court in support of the sanction it imposed on him for failing to respo nd to Simon’s motion for summary judgment. Second, he ob jects to the district court’s refusal to grant him an extension of time within wh ich to file a response to the summary judgment motion. He does not challenge the district court’s award of summary judgment to Simon on the merits. That is, he does not argue or point out to us the existence of any genuine issue of mat erial fact such that a trial is necessary, nor does he deny that Simon is entitled to judgment as a matter of law. B. The District Court’s Refusal to Grant an Extens ion of Time We review the district court’s denial of an extensi on of time for an abuse of discretion. See Ellis v. Univ. of Kan. Med. Ctr. , 163 F.3d 1186, 1193 (10th Cir. 1998). An abuse of discretion will be found only where the trial court makes “an arbitrary, capricious, whimsical, or manifestlyunreasonable judgement.” United States v. Hernandez-Herrera , 952 F.2d 342, 343 (10th Cir. 1991) (quotations omitted)

. In light of this difficult standard, Mr. Davis fail s to convince us that the district court abused its discretion. To begin with, given that he gained access to his postal box on September 15–three days before hi s response to Simon’s motion for summary judgment was due–he does not explain why he was unable to prepare-6-

either a response or a timely request for an extens ion of time during that three-day period. Second, we reject Mr. Davis’s contention that Simon acted deceptively in sending a copy of its motion to his postal box with out, as it had done frequently (but not always) in the past, serving additional co pies on him personally or by fax. Simon served the motion at the address given by Mr. Davis in his complaint. The record reveals no change of address for Mr. Davis; to the contrary, it reveals that he continued to provide this address in all papers he submitted after the complaint. The Federal Rules of Civil Procedure st ate that “[s]ervice upon the attorney or upon a party shall be made by deliverin g a copy to the attorney or party or by mailing it to the attorney or party at the attorney ’s or party’s last known address . . . . ” Fed. R. Civ. P. 5(b) (emphasis added). This Sim on did; nothing else was required under the rules. See Theede v. United States Dep’t. of Labor , 172 F.3d 1262, 1267 (10th Cir. 1999) (holding that mailing to last known address sufficient under Rule 5 and placing burden on party to inform court of any change of address). C. The District Court’s Decision to Deem Facts Admitted We next consider the district court’s decision to d eem the facts contained in Simon’s motion for summary judgment admitted. As w e noted above, the court imposed this sanction on Mr. Davis for his failure to file a timely response to the4 Local Rule 56.1 provides that “[a]ll material facts set forth in the statement

of the material facts of the movant shall be deemed admitted for the purpose of summary judgment unless specifically controverted b y the statement of material facts of the opposing party.” W.D. Okla. L. Cv. R 56.1(c). -7- summary judgment motion. Such a sanction is a type of evidentiary ruling, and, in consequence, w e review it for abuse of discretion. Durtsche v. Am. Colloid Co. , 958 F.2d 1007, 1011 (10th Cir. 1992) (holding that a trial court’s evidentiary rulings are reviewed under abuse of discretion standard). See also Sports Racing Servs., Inc. v. Sports Car Club of Am., Inc. , 131 F.3d 874, 894 (10th Cir. 1997) (reviewing exclusion of evidence at summary judgment stage of proceedings for abuse of discretion). Local Rule 7.1(e), under which Simon filed its moti on to confess, is not limited to summary judgment, but covers motions gen erally. It is unclear from the record whether the district court accepted Simon’s statement of facts pursuant to this rule, or instead whether it did so under an other local rule, Local Rule 56.1. That latter rule, which is applicable specifically to summary judgment motions, expressly authorizes a trial court to deem the movi ng party’s statement of facts admitted in the event the adverse party fails to respond. 4 We need not determine the source of the district court’s ruling, for w e may affirm on any basis the record supports, even one the district court did not cite. See Wolfgang v. Mid-America Motorsports, Inc. , 111 F.3d 1515, 1524 (10th Cir. 1997) (“[W]e are n ot-8-

constrained by the district court’s conclusions, bu t may affirm the district court on any legal ground supported by the record.”). We see nothing arbitrary, whimsical, or manifestly unreasonable about the district court’s evidentiary ruling here. Local Rule 56.1 plainly authorized the court to sanction Mr. Davis in precisely the fashion it did. Other courts within this circuit employ similar rules, and we have not questioned their application. See, e.g. , Taylor v. Pepsi-Cola Co. , 196 F.3d 1106, 1108 n.1 (10th Cir. 1999); Mitchael v. Intracorp, Inc. , 179 F.3d 847, 856 (10th Cir. 1999); O’Toole ex rel. O’Toole v. Olathe Dist. Sch. Unified Sch. Dist. No. 233 , 144 F.3d 692, 709 (10th Cir. 1998); see also Hagelin for President Comm. of Kan. v. Graves , 25 F.3d 956, 959 (10th Cir. 1994) (holding, without citation to local rule, that “[b]ecause [defendant] failed to submit any materials contradi cting plaintiffs’ statement of facts in support of their motion for summary judgme nt, these facts are deemed admitted”). Furthermore, other circuits have held that a party who fails to respond to a summary judgment motion waives the rig ht to contest the facts asserted by the moving party in the motion. See Anchorage Assocs. v. Virgin Islands Bd. of Tax Review , 922 F.2d 168, 175-76 (3d Cir. 1990); Jaroma v. Massey , 873 F.2d 17, 20, 21 (1st Cir. 1989). We conclude that the district court did not abuse its discretion in deeming the facts c ontained in Simon’s motion admitted.-9-

D. The District Court’s Grant of Summary Judgment We turn now to the grant of summary judgment itself. While its implications are no doubt dire for an opposing party, a district court’s decision to deem facts admitted is not the same thing as granting summary judgment. See Mitchael , 179 F.3d at 856 (recognizing distinction under Ru le 56). The district court must still determine, as the rule requires, “ that there is no genuine issue as to any material fact and that the moving party is e ntitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). “If those facts e ntitle the moving party to judgment as a matter of law, summary judgment will be granted.” Jaroma , 873 F.2d at 21. Here, immediately after declaring that it would acc ept Simon’s statement of facts, the district court granted summary judgment against Mr. Davis. It di d so without offering the legal analysis required by Rul e 56(c). However, Mr. Davis has not challenged this aspect of the court’s rulin g on appeal. He has therefore waived any objection to the legal basis for the court’s ruling. State Farm Fire & Cas. Co. v. Mhoon , 31 F.3d 979, 984 n.7 (10th Cir. 1994). E. An Alternate Interpretation of the District Cou rt’s Ruling We acknowledge that the sanction imposed by the dis trict court could be interpreted differently.-10-

It is possible to construe it not as an admission o f facts but rather as a confession of summary judgment itself. Although the district court was careful to deem Simon’s statement of facts admitted before it granted summary judgment, the court also stated, earlier in its order, that “[c]onfessing amotion for summary judgment is a harsh remedy.” Rec. Doc. 25, at 2. This interpretation is bolstered somewhat by the court’s failure to conduct any lega l analysis in support of its grant of summary judgment. It is further bolstered in light of the motion that was before the court, and which arguably the court gran ted: Simon sought confession of summary judgment under a local rule specifically authorizing such a remedy as a sanction for a party’s failure-to-respond. Even so, were we to accept such an interpretation w e would still affirm the district court’s ruling. The severe sanction of di smissal may, under certain circumstances, be an appropriate remedy where a party fails to oppose a summary judgment motion. D G Shelter Products Co. v. Forest Products Co. , 769 F.2d 644, 645 (10th Cir. 1985). Reviewed under an abuse of discretion standard, we have focused on three considerations in determining whether such a sanction is improper: (1) the extent of actual prejudice to th e moving party; (2) the amount of interference with the judicial process; and (3) the culpability of the party failing to respond. Hancock v. City of Okla. City , 857 F.2d 1394, 1396 (10th Cir. 1988). If these aggravating factors outweigh the c ourts’ “strong predisposition to-11-

resolve cases on their merits,” dismissal with prej udice is an appropriate sanction. Id. Having reviewed the district court’s order, we cann ot say it abused its discretion. Although the court did not explicitly address the factors above, it did so implicitly. First, as the court noted, Mr. Davi s bears full culpability; his failure to receive a copy of Simon’s motion was att ributable “only to his own lack of diligence.” Rec. Doc. 25, at 2. Not only did h e fail to pay his mail box fee (the record, incidentally, contains no indication t hat Mr. Davis was unable to pay the fee), he gained access to his mail box with thr ee full days remaining before his response was due. Yet he made no apparent effo rt to file a response or ask the court for additional time. In addition, we are as unconvinced as the district court by Mr. Davis’s attempt to shift blame to Simon for its method of service. Simon, as we observed above, properly served its motion onMr. Davis under the rules. The two remaining factors are enveloped by the court’s consideration of the certitude of an eventual defense verdict at trial. That Mr. Davis could not in the end prevail was due to his failure to submit a fina l witness and exhibit list as required by the court’s scheduling order, a failure that would cripple his case by preventing him, as the plaintiff, from introducing any evidence and thereby sustain his burden of proof. The inevitability of Mr. Davis’s defeat at trial underscores the needless expenditure of resources–t ime, money, and energy–on-12-

the part of both Simon and the court system had the district court opted for some lesser sanction. In other words, to allow a case t o proceed in the face of certain defeat not only would visit actual prejudice on Sim on but would also no doubt interfere with the sound-working of the judicial pr ocess. Under these circumstances, we will not s econd guess the district court ’s decision. Accordingly, the judgment of the United States Dist rict Court for the Western District of Oklahoma is AFFIRMED.

Entered for the Court

David M. Ebel Circuit Judge