* This order and judgment is not binding precedent, e xcept under the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

### JUN 22 1999 

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

BOBBY CROFT; KEVIN OWENS; AARON STIMPSON; and DANIEL ROBERTS, Plaintiffs-Appellants,

v. ASSOCIATED FOOD STORES, INC.,

Defendant-Appellee. No. 98-4104 (D.C. No. 96-CV-379-B) (D. Utah)

ORDER AND JUDGMENT *

Before BRORBY , EBEL , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.1 Although plaintiffs’ complaint contained other clai ms and other defendants,

they appeal only the grant of summary judgment on their Title VII claim in favor of defendant Associated Food Stores, Inc. -2- Plaintiffs Bobby Croft, Kevin Owens, Aaron Stimpson , and Daniel Roberts, appeal the district court’s orders (1) granting sum mary judgment on plaintiffs’ employment discrimination claims in favor of defend ant Associated Food Stores, Inc., and (2) denying plaintiffs’ motion to reconsi der. We affirm. Plaintiffs, who are African-Americans, worked as “l umpers” between 1994 and 1996, unloading independent truckers’ deliverie s at defendant’s warehouse. In June 1996, plaintiffs brought this action, alleg ing, inter alia, that defendant discriminated against them based on their race in v iolation of Title VII of the Civil Rights Act of 1964. 1 On October 15, 1997, defendant moved for summary ju dgment on the ground that plaintiffs were independent contractors and could not, therefore, maintain a Title VII action. Plaintiffs did not fi le their response when due, but instead requested and received an extension of time until November 17, 1997. Plaintiffs failed to meet this deadline. On Novemb er 21, 1997, plaintiffs filed a motion for extension of time until November 30, 199 7. Plaintiffs again failed to meet the deadline. On December 15, 1997, after rev iewing defendant’s motion and supporting evidence, the district court found g ood cause for granting the-3-

motion for summary judgment. On December 16, 1997, plaintiffs attempted to file their response to the summary judgment motion. On December 29, 1997, plaintiffs filed a motion forrelief from the summary judgment order, and on January 7, 1998, the y filed a motion to reconsider. The matter was set for a hearing, at w hich plaintiffs’ attorney failed to appear. Thereafter, the district court found th at plaintiffs had not shown extraordinary circumstances meriting relief from th e summary judgment order, and that, in any case, the evidence submitted in pl aintiffs’ response would not have changed the outcome of the case. We review the district court’s grant of summary jud gment de novo and apply the same legal standard as the district court. See Wolf v. Prudential Ins. Co. of Am. , 50 F.3d 793, 796 (10th Cir. 1995). Summary judgm ent is appropriate if there is “no genuine issue as to any material fa ct and . . . the moving party is entitled to a judgment as a matter of law.” Fed. R . Civ. P. 56(c). We review the court’s denial of plaintiffs’ motion to reconsider for an abuse of discretion. See Herr v. Heiman , 75 F.3d 1509, 1515 n.1 (10th Cir. 1996). Plaintiffs argue first that the district court erre d in granting summary judgment based on District of Utah Local Rule 56-1( a), because a rule authorizing summary judgment on any ground other than the absen ce of a genuine issue of fact and legal entitlement violates Fed. R. Civ. P. 56. Several courts have held-4-

that summary judgment may not be granted as a sanct ion for a party’s failure to respond, but may be granted only when the moving party’s evidence itself demonstrates no genuine issue of fact and entitlement to judgment. See, e.g. , Tobey v. Extel/JWP, Inc. , 985 F.2d 330, 332 (7th Cir. 1993) (holding summary judgment could not be granted as a sanction); Henry v. Gill Indus., Inc. , 983 F.2d 943, 950 (9th Cir. 1993) (holding local rule author izing summary judgment as sanction for failure to respond, without regard to merits, impermissibly violated Fed. R. Civ. P. 56). Here, however, the district court did not grant sum mary judgment as a sanction. Instead, after noting that plaintiffs ha d not disputed any of defendant’s facts, the district court held that defendant’s evi dence itself raised no issue of material fact and that defendant was entitled to ju dgment as a matter of law. This approach is consonant with Fed. R. Civ. P. 56(e), w hich authorizes entry of summary judgment “if appropriate,” when a nonmoving party fails to respond to a properly supported summary judgment motion. Further, we agree with the district court that defe ndant’s undisputed evidence shows that plaintiffs were not “employees” as a matter of law. Plaintiffs negotiated the terms of their contracts, including price and hours, with the independent truckers. They contracted out their se rvices to the truckers under their own business names. Defendant did not pay pl aintiffs; did not require them-5-

to work particular hours, or for that matter, to wo rk at all; did not provide benefits, and did not regulate how plaintiffs did their work. See Lambertsen v. Utah Dep’t of Corrections , 79 F.3d 1024, 1028 (10th Cir. 1996) (adopting tes t to determine employment relationship which looks mainl y at right to control “means and manner” of worker’s performance, but considers other factors as well). Finally, to obtain lumping privileges at the wareho use, each plaintiff signed a policy acknowledging that they were not employees o f defendant. Plaintiffs point to the fact that they were require d to obtain a lumper card from defendant; that certain conduct was required o f them; and that their lumping privileges could be suspended or revoked by defendant. Although defendant controlled certain rudimentary aspects of plaintiff s’ conduct while on defendant’s property, this was not the degree of control necess ary to create an employeremployee relationship. See id. at 1026, 1028-29 (holding as a matter of law that controlling worker’s entry, reviewing classroom mat erials for security threats, investigating worker’s background, and requiring adherence to code of conduct within facility, did not create employment relation ship with Department of Corrections). Because defendant’s evidence did not raise a factua l dispute regarding plaintiffs’ employment status, but showed instead that plaintiffs were independent contractors as a matter of law, summary judgment wa s properly granted. Further,-6-

plaintiffs have not shown the district court abusedits discretion in denying their motion to reconsider. Accordingly, the judgment of the United States District Court for the District of Utah is AFFIRMED .

Entered for the Court

David M. Ebel Circuit Judge