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

### DEC 3 1999 

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

CHIBU ANAEME,

Plaintiff-Appellant,

v. FHP OF NEW MEXICO, INC., a New Mexico corporation; KIRSTIN GAUTHIER, individually and in her official capacity as Human Resources Manager for FHP of New Mexico, Inc.; RAY RODMAN, individually and in his official capacity as Hiring Supervisor for FHP of New Mexico, Inc.; ROBERT HOLMES, individually and in his official capacity as Hiring Supervisor for FHP of New Mexico, Inc.; MICHELLE WILLIAMS, individually and in her official capacity as Team Leader for FHP of New Mexico, Inc.; JEFF CAMPBELL, individually and in his official capacity as Hiring Supervisor for FHP of New Mexico, Inc.; LARRY GEORGOPOULOS, individually and in his official capacity as Clinical Director for FHP of New Mexico, Inc.; TALBERT MEDICAL MANAGEMENT COMPANY,

Defendants-Appellees. No. 99-2076 (D.C. No. CIV-97-1243-BB)

(D. N.M.)* This order and judgment is not binding precedent, e xcept under the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. -2- ORDER AND JUDGMENT *

Before ANDERSON , BARRETT , and BRISCOE, Circuit Judges.

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. Plaintiff Chibu Anaeme appeals the district court’s order dismissing his civil rights/employment discrimination case with pr ejudice. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm. Plaintiff initiated this action under Title VII, 42 U.S.C. § 1981, the New Mexico Human Rights Act, and common law (raising a claim of intentional infliction of emotional distress). In his complaint, plaintiff, a registered pharmacist in New Mexico of Nigerian origin, allege d that he applied to work for defendants and they refused to interview him and/orto hire him on the basis of his race, color, or national origin.1 Fed. R. Civ. P. 37(a)(4)(A) provides in part that:

If the motion [to compel] is granted . . . the court shall . . . require the party or deponent whose conduct necessitated th e motion . . . to pay to the moving party the reasonable expenses inc urred in making the motion, including attorney’s fees, unless the c ourt finds . . . that other circumstances make an award of expenses unjus t.

-3- Although plaintiff was initially represented, couns el withdrew and plaintiff continued pro se. Discovery stalled early in the l itigation when plaintiff postponed his deposition multiple times, claiming h e was seeking new counsel. Thereafter, defendants noticed his deposition sever al more times but he failed to appear. Plaintiff also failed to respond to defend ants’ written discovery requests. Defendants sought sanctions and an order compelling discovery, or, in the alternative, dismissal, attorneys’ fees, and costs. On June 30, 1998, the magistrate judge issued an order sanctioning plaint iff pursuant to Fed. R. Civ. P. 37(a)(4) 1 and compelling discovery. The order directed plai ntiff to respond to defendants’ discovery requests within five days andto appear at a deposition within fifteen days (with at least four days’ notic e). He failed to comply with either dictate. Subsequently, the district court i ssued an order to show cause why plaintiff’s case should not be dismissed “for his f ailure to respond to discovery requests and participate in completion of the Pretr ial Order,” and set a one-hour-4-

hearing. R., Doc. 64 at 2. Plaintiff did not appe ar at the show cause hearing and the district court dismissed his case with prejudic e. District courts are empowered to dismiss an action for discovery violations.
See Archibeque v. Atchison, Topeka & Santa Fe Ry. , 70 F.3d 1172, 1174 (10th Cir. 1995); Fed. R. Civ. P. 37(b)(2)(C). We reviewthe district court’s dismissal for abuse of discretion. See National Hockey League v. Metropolitan Hockey Club, Inc. , 427 U.S. 639, 642 (1976). “Determination of the correct sanction for a discovery violation is a fact-specific inquiry th at the district court is best qualified to make.” Ehrenhaus v. Reynolds , 965 F.2d 916, 920 (10th Cir. 1992). We have recognized that “dismissal represents an extreme sanction appropriate only in cases of willful misconduct.” Id. at 920; see also Meade v. Grubbs , 841 F.2d 1512, 1520 n.6 (10th Cir. 1988) (“Becaus e dismissal with prejudice defeats altogether a litigant’s right to access to the courts, it should be used as a weapon of last, rather than first, resort .”) (quotations and citation omitted). In Ehrenhaus , we set forth the following criteria that a distri ct court should “ordinarily” consider on the record when emp loying this drastic measure: “(1) the degree of actual prejudice to the defendan t; (2) the amount of interference with the judicial process; . . . (3) t he 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-5-

sanctions.” Ehrenhaus , 965 F.2d at 921 (quotations and internal citation s omitted). We explained in Ehrenhaus that “[t]hese factors do not constitute a rigid test; rather, they represent criteria for the distr ict court to consider prior to imposing dismissal as a sanction.” Id. Not every case will require the district court’s evaluation of all the Ehrenhaus criteria, however, since “often some of these factors will take on more importance tha[n] others.” Archibeque , 70 F.3d at 1175 (affirming district court’s dismissal orderwhich stated the reasons for dismissal despite court’s failure to warn plaintiff of impending dismissal) (quotation omitted ). On appeal, plaintiff contends that the trial court abused its discretion by dismissing his case “with prejudice without making a record that it considered all relevant factors which must be considered prior to a dismissal with prejudice for noncompliance with discovery.” Appellant’s Opening Br. at 3. Plaintiff argues that the district court failed to follow Ehrenhaus

. While plaintiff correctly states that the district court’s three-paragraph dismissal order does not discuss the Ehrenhaus criteria, the record nevertheless permits meaningful review of that dismissal. Speci fically, the magistrate judge’s order of June 30, 1998--upon which the district cou rt’s order to show cause and dismissal order build--explicitly discussed the Ehrenhaus criteria.-6-

The magistrate judge found that defendants were pre judiced by plaintiff’s behavior because they incurred additional costs rel ated to filing motions and were delayed in completing discovery. In addition, the magistrate judge noted that there was no justification for plaintiff’s behaviornor did his pro se status excuse him from following the Federal Rules of Civil Proce dure. The magistrate judge further noted that plaintiff was familiar with the litigation process (plaintiff has filed numerous other civil cases in the District of New Mexico). Last, the magistrate judge took pains to explicitly warn plai ntiff that if he continued to not cooperate, his case could be dismissed under Ehrenhaus . Plaintiff failed to comply with the deadlines set forth in that order. While the magistrate judge’s order does not address all the Ehrenhaus factors, the factors discussed support dismissal under our case law. See Archibeque , 70 F.3d at 1175 . In addition to inconveniencing defendants by forcing them to file countless motions and to renot ice his deposition, plaintiff flouted the Federal Rules of Civil Procedure, the m agistrate judge’s June 30, 1998 order, and the district court’s order to show cause . He also failed to respond to many of defendants’ motions. We conclude that the district court did not abuse its discretion in dismissing plaintiff’s case with prejudice. On this record, “the aggravating factors outweigh the judicial system’s strong predisposition to resolve-7-

cases on their merits” and dismissal is an appropriate sanction. Meade , 841 F.2d
at 1521 n.7. The judgment of the district court is AFFIRMED.

Entered for the Court

Mary Beck Briscoe Circuit Judge