UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

WILLIE HARRINGTON, 

 Plaintiff - Appellant, 

v. 

OZARK WAFFLE, L.L.C., 

 Defendant - Appellee. 

No. 17-1430 

(D.C. No. 1:16-CV-01236-MJW) 

(D. Colo.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before BRISCOE, MATHESON, and EID, Circuit Judges.**

_________________________________ 

Plaintiff-Appellant Willie Harrington sued Defendant-Appellee Ozark Waffles, 

L.L.C. (“Ozark”) in state court alleging employment discrimination. Construing the 

claim as based on Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., 

Ozark removed the case to federal district court. Based on Mr. Harrington’s failure to 

prosecute, the district court dismissed the case with prejudice under Federal Rules of 

 *

 This order and judgment is not binding precedent, except under the doctrines 

of law of the case, res judicata, and collateral estoppel. It may be cited, however, for 

its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. ** After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

May 29, 2018

Elisabeth A. Shumaker 

Clerk of Court
2 

Civil Procedure 37(b) and 41(b) and denied Mr. Harrington’s motion under Rule 60(b) to 

vacate the judgment.1

 Mr. Harrington appears to attempt to appeal both orders.2 

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court’s 

dismissal of this case with prejudice, and we dismiss the appeal of the district court’s 

denial of the Rule 60(b) motion for lack of jurisdiction. 

I. BACKGROUND

 Mr. Harrington filed his complaint in state court in April 2016. After removal, the 

federal district court set a status conference for August 11, 2016. Mr. Harrington failed 

to appear. The court set another status conference for August 25, 2016. He failed to 

appear again. Mr. Harrington finally attended a status conference on November 1, 2016, 

and a scheduling conference on December 14, at which the court set various deadlines, 

including a discovery cut-off of May 15, 2017. Mr. Harrington refused to respond to 

discovery requests and did not otherwise participate in the litigation. 

On August 7, 2017, the court ordered Mr. Harrington to pay attorney fees for his 

failure to respond to discovery requests. When he failed to respond to Ozark’s motion to 

dismiss, the court, on August 11, 2017, warned that if he did not respond by August 28, 

the case would be dismissed with prejudice. Despite this warning, Mr. Harrington did 

not respond. The court analyzed the factors for dismissal with prejudice under 

Ehrenhaus v. Reynolds, 965 F.2d 916 (10th Cir. 1992), and granted the motion. 

 1

 A magistrate judge adjudicated all matters in this case under 28 U.S.C. 

§ 636(c). 

2

 Because Mr. Harrington is pro se, we liberally construe his filings but do not 

act as his advocate. Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008). 
3 

On October 27, 2017, Mr. Harrington filed an untitled motion to vacate the 

judgment because of his inability to receive mail. Construing the motion as asking for 

relief due to mistake or excusable neglect under Rule 60(b)(1), the court, noting that Mr. 

Harrington should have provided an alternative address to the court, denied the motion. 

II. DISCUSSION

A. Dismissal with Prejudice 

 “We review dismissals under Rule 41(b) for abuse of discretion.” Nasious v. Two 

Unknown B.I.C.E. Agents, 492 F.3d 1158, 1161 (10th Cir. 2007); see also Auto-Owners 

Ins. Co. v. Summit Park Townhome Ass’n, 886 F.3d 852, 859-61 (10th Cir. 2018). 

Mr. Harrington’s briefing on appeal is sparse and fails to show the court abused its 

discretion. In his opening brief, he lists “59 E” and “59 b” and states that the district 

court applied the wrong law. Aplt. Br. at 3-4. We assume he is referencing Federal 

Rules of Civil Procedure 59(e), which provides that “[a] motion to alter or amend a 

judgment must be filed no later than 28 days after the entry of the judgment,” and 59(b), 

which provides that “[a] motion for a new trial must be filed no later than 28 days after 

the entry of judgment.” Mr. Harrington also cites two cases from the Massachusetts 

Court of Appeals—Albano v. Bonanza Int’l Dev. Co., 5 Mass. App. Ct. 692 (1977), and 

Arthur D. Little, Inc. v. E. Cambridge Sav. Bank, 35 Mass. App. Ct. 734 (1994). He does 

not explain how either rule or either case supports a challenge to the district court’s 

orders, nor can we discern any such support from these authorities. 

 Also in his opening brief, Mr. Harrington states that he “never signed a lease any 

place still living in the same residence since 2010.” Aplt. Br. at 4. He states that he 
4 

“never ignored a summons to appear in court, never served officer or received anything 

certified mail. I didn’t destroy or vandalize my mail box. The property has about 14 

mail boxes other than mine that are defected also.” Id. Neither of these statements shows 

the district court abused its discretion in dismissing this case with prejudice for failure to 

prosecute. 

 In his reply brief, Mr. Harrington attempts to shift responsibility to counsel for 

Defendant-Appellee, whom, he says, the court “instructed . . . to work with me Willie 

Harrington since I am representing myself” and that he “never received an email or phone 

call” from defense counsel’s law firm. Aplt. Reply Br. at 2. Ozark’s response brief states 

that “all correspondence was sent to [Mr. Harrington’s] address of record, and many of 

Defendant-Appellee’s communications were confirmed delivered.” Aplee. Br. at 5. We 

need not resolve this factual dispute because doing so would not alter our conclusion that 

the district court did not abuse its discretion. 

B. Denial of Rule 60(b) Motion

After the district court dismissed this case with prejudice, it entered a final 

judgment on October 24, 2017. On October 27, Mr. Harrington filed his untitled motion 

to vacate the judgment, which tolled the time to appeal. Fed. R. App. P. 4(a)(4)(A)(vi). 

On November 28, 2017, he filed a notice of appeal from the final judgment. On that 

same day, this court abated the appeal pending the district court’s disposition of his 

pending post-judgment motion, which the court denied on January 25, 2018. We then 

lifted the abatement. 
5 

Mr. Harrington did not file a notice of appeal or an amended notice of appeal from 

the order denying his post-judgment motion. Id. 4(a)(4)(B)(ii). As a result, the district 

court’s order denying the post-judgment motion under Rule 60(b)(1) is not within the 

scope this appeal. We dismiss any challenge to the denial of that motion based on our 

lack of jurisdiction. 

III. CONCLUSION

We (1) affirm the district court’s dismissal of this case under Federal Rules of 

Civil Procedure 37(b) and 41(b), (2) dismiss Mr. Harrington’s challenge to the 

district court’s denial of his post-judgment motion under Federal Rule of Civil 

Procedure 60(b)(1), and (3) deny his request to proceed in forma pauperis on appeal. 

Entered for the Court 

Scott M. Matheson, Jr. 

Circuit Judge