Elsoueissi v. Denny's, Inc. ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 6 1997
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
HOUSSAM ELSOUEISSI, an
individual,
Plaintiff-Appellant,
No. 97-5030
v. (D.C. No. 96-CV-832-H)
(N.D. Okla.)
DENNY’S, INC., a California
corporation,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the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.
Plaintiff Houssam Elsoueissi commenced this action to enforce various
statutory and common-law employment rights on September 11, 1996. Defendant
Denny’s, Inc., secured an extension to answer through October 22, 1996, on
which date it filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6). Plaintiff
obtained an extension to respond through November 19, 1996. When he had not
responded as of November 26, 1996, defendant moved for default. The district
court deemed the Rule 12(b)(6) motion confessed and summarily dismissed the
case with prejudice. Within ten days, plaintiff sought relief under Fed. R. Civ. P.
60(b), which was denied on December 12, 1996. Following an unsuccessful
request for reconsideration, plaintiff appealed. Because the Rule 60(b) motion
tolled the appeal period until December 12, 1996, see Fed. R. App. P. 4(a)(4)(F),
the notice of appeal filed Monday, January 13, 1997, secures our jurisdiction over
both the denial of that motion and the underlying order of dismissal.
Although issued in the context of Rule 12(b)(6), the order under review is
properly deemed an involuntary “sanction” dismissal under Fed. R. Civ. P. 41(b),
rather than a disposition based on the legal sufficiency of the complaint. See
Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994); see, e.g., Meade v.
Grubbs, 841 F.2d 1512, 1520 (10th Cir. 1988); see also Security Nat’l Bank v.
John Deere Co., 927 F.2d 519, 521 (10th Cir. 1991). We review for an abuse of
discretion, see Mobley, 40 F.3d at 340, and reverse.
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“[A] dismissal with prejudice is clearly a severe sanction reserved for
extreme circumstances.” Meade, 841 F.2d at 1520. “Because 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.” Id. at 1520 n.6 (citations
and quotations omitted). Thus, prior to imposing such a sanction, the district
court must ordinarily consider, on the record, several factors designed to caution
against premature or unreflective resort to this ultimate penalty. See Mobley, 40
F.3d at 340.
These criteria include: “(1) the degree of actual prejudice to the
defendant; (2) the amount of interference with the judicial process;
. . . (3) the 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 sanctions.”
Id. (quoting Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992)).
Here, as in Mobley, the “record on appeal contains no indication the trial
court considered these criteria.” Id. at 341. The summary order of dismissal,
prepared by defendant for the judge’s signature, simply recounts plaintiff’s failure
to file a timely response to the pending Rule 12(b)(6) motion and, with no further
elaboration, dismisses the action with prejudice. 1 The facial inadequacy of this
order would suffice to warrant reversal. Id. at 341; see, e.g., Ruplinger v. Rains
1
The court’s subsequent orders relate to matters of excuse specific to
plaintiff’s request for relief from judgment under Rule 60(b), and thus do not cure
the distinct deficiencies in the order of dismissal discussed above.
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(In re Rains), 946 F.2d 731, 733-34 (10th Cir. 1991); Ocelot Oil Corp. v. Sparrow
Indus., 847 F.2d 1458, 1465 (10th Cir. 1988) (collecting cases reflecting this
court’s “reluctance to affirm [dismissal sanctions] . . . where the district court’s
findings did not make specific reference to [the pertinent factors]”).
However, the sanction imposed is not just unsubstantiated as an expository
matter. Even if the district court had explicitly invoked the pertinent factors, we
would still be constrained to reverse because “[w]e are convinced that the
circumstances here clearly did not justify dismissal of [plaintiff’s] action with
prejudice.” Meade, 841 F.2d at 1520-21.
Two points in particular, relevant to the first three factors cited above,
weigh heavily in plaintiff’s favor: dismissal is ordinarily unwarranted on the
basis of “isolated incidents of noncompliance,” Ocelot, 847 F.2d at 1465; Smith
v. United States, 834 F.2d 166, 171 (10th Cir. 1987); see, e.g., DeBardeleben v.
Quinlan, 937 F.2d 502, 505 (10th Cir. 1991); Hancock v. City of Okla. City, 857
F.2d 1394, 1396 (10th Cir. 1988), especially when the incident causes minimal
delay at an early stage of the litigation, see, e.g., Meade, 841 F.2d at 1521, 1522;
Hollis v. United States, 744 F.2d 1430, 1433 (10th Cir. 1984). Further, our
record reveals no specific warning from the court that an automatic dismissal with
prejudice was impending. While it appears plaintiff shares responsibility with
counsel for missing the operative deadline, that was also the case in Meade,
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where we nevertheless held that, given the alignment of the remaining factors in
favor of the plaintiff--essentially replicated here--dismissal was an abuse of
discretion. Meade, 841 F.2d at 1521-22. Finally defendant’s reliance on Green v.
Dorrell, 969 F.2d 915 (10th Cir. 1992) is misplaced. In upholding a dismissal in
Green, this court took pains to distinguish Meade, see Green, 969 F.2d at 918,
and, for the reasons set out therein as well as those discussed above, we see the
present case as falling squarely on the Meade side of that dichotomy.
The judgment of the United States District Court for the Northern District
of Oklahoma is REVERSED and the case is REMANDED for further proceedings
consistent with this order and judgment.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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