* This order and judgment is not binding precedent, except under the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 10th Cir. R. 36.3. 

F I L E D

United States Court of Appeals

Tenth Circuit

OCT 22 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BOB J. SETTLE,

Plaintiff-CounterDefendant-Appellant,

v.

JON BRIM; MICHAEL LAYER;

ALAN MILLER; and INFINITY

GROUP, INC.,

DefendantsCounterclaimantsAppellees,

and

JIM VALENTINE and BENJAMIN

BEVILLE,

Defendants-Appellees.

No. 98-2066

(D.C. No. CIV-96-1434-LH)

(D. N.M.)

ORDER AND JUDGMENT *

Before BALDOCK , EBEL , and MURPHY , Circuit Judges.
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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 case is therefore

ordered submitted without oral argument.

Plaintiff Bob J. Settle is a pro se litigant who sued his former business

partners alleging RICO violations, breach of contract, fraud, negligent

misrepresentation and interference with business expectancy. After filing his

complaint in October 1996, Mr. Settle repeatedly refused to answer defendants’

interrogatories and requests for production, raising numerous objections to all of

defendants’ discovery requests. The magistrate judge ordered Mr. Settle to

comply with defendants’ discovery requests but, because he was proceeding pro

se, also ordered simplified interrogatories so that Mr. Settle could respond as

simply and conveniently as possible. The magistrate judge also granted Mr. Settle

an extension of time in which to respond to the discovery requests. Despite these

accommodations, Mr. Settle continued to raise numerous objections to

defendants’ discovery requests and to refuse to cooperate in discovery. In

September 1997, the magistrate judge entered an order giving Mr. Settle still

additional time to comply with the discovery requests, with an explicit warning

that he risked dismissal of his action if he did not comply. Notwithstanding this
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warning, Mr. Settle failed to comply with the September 1997 discovery order or

to cooperate in the discovery process. 

In January 1998, when Mr. Settle still had not complied with the September

1997 discovery order, the magistrate judge recommended Mr. Settle’s action be

dismissed with prejudice under Fed. R. Civ. P. 37(b)(2)(C) and 41(b) because of

his repeated failure to comply with the Federal Rules of Civil Procedure and the

court orders regarding discovery. The magistrate judge concluded Mr. Settle had

failed to comply with every discovery order of the magistrate judge, that no

discovery had been completed in the action more than a year after its filing and 

that defendants had been prejudiced as a result of Mr. Settle’s repeated refusal to

cooperate in the discovery process. The magistrate judge noted that Mr. Settle

had been warned dismissal was a likely result of continued noncompliance, and

concluded that no sanction other than dismissal would be effective. The district

court adopted the magistrate judge’s recommendation after reviewing the record

de novo, and dismissed Mr. Settle’s complaint with prejudice.

Mr. Settle appeals this dismissal, raising the same objections to discovery

that he repeatedly made before the magistrate judge. We review the imposition of

sanctions for abuse of discretion. See Mobley v. McCormick , 40 F.3d 337, 340

(10th Cir. 1994). Although dismissal is a drastic sanction, our case law makes it

clear that a district judge may dismiss an action for discovery violations. See
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Ehrenhaus v. Reynolds , 965 F.2d 916, 920 (10th Cir. 1992); see also

Fed. R. Civ. P. 37(b)(2)(C) (authorizing a court to enter an order dismissing the

action if a party “fails to obey an order to provide or permit discovery”). The

magistrate judge and the district court considered all of the appropriate factors

under Jones v. Thompson , 996 F.2d 261, 264 (10th Cir. 1993) and Ehrenhaus , 965

F.2d at 920-21. The record shows that Mr. Settle abused the discovery process

and flouted several court orders compelling compliance with discovery. We find

that the district court acted within its discretion in dismissing this action and we

affirm the dismissal for substantially the reasons set forth in the thorough report

of the magistrate judge dated January 21, 1998, and the district court’s

February 11, 1998 order adopting this report.

The judgment of the United States District Court for the District of New

Mexico is AFFIRMED. The mandate shall issue forthwith.

Entered for the Court

Michael R. Murphy 

Circuit Judge