Quarrie v. N.M. Inst. of Mining & Tech , 621 F. App'x 928 ( 2015 )


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  •                                                                                 FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS                        Tenth Circuit
    FOR THE TENTH CIRCUIT                          July 23, 2015
    _________________________________
    Elisabeth A. Shumaker
    Clerk of Court
    LINDSAY O’BRIEN QUARRIE,
    Plaintiff - Appellant,
    v.                                                         No. 15-2006
    (D.C. No. 2:13-CV-00349-MV-SMV)
    NEW MEXICO INST. OF MINING &                                (D. N.M.)
    TECH.; BHASKAR MAJUMDAR;
    LORIE LIEBROCK; KENNETH (KEN)
    MINSCHWANER; SCOTT TEARE;
    DANIEL LOPEZ; PETER GERITY,
    Defendants - Appellees.
    _________________________________
    ORDER AND JUDGMENT*
    _________________________________
    Before HARTZ, PHILLIPS, and McHUGH, Circuit Judges.
    _________________________________
    Lindsay O’Brien Quarrie appeals the district court’s dismissal of his pro se
    civil rights action under Fed. R. Civ. P. 41(b). The court dismissed his action with
    prejudice based on his failure to comply with a court order to pay Defendants’
    expenses incurred in opposing Mr. Quarrie’s frivolous motion for protective order.
    Exercising jurisdiction under 
    28 U.S.C. § 1291
    , we affirm.
    *
    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. This order and judgment is not binding
    precedent, except under the doctrines of law of the case, res judicata, and collateral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.
    I.
    Mr. Quarrie filed his pro se action asserting various claims under federal and
    state law arising from his termination from a Ph.D. program at the New Mexico
    Institute of Mining and Technology. He alleged that Defendants improperly
    terminated his course of study and denied him the degree he had earned because he is
    African American.
    A.
    Defendants served Mr. Quarrie with a notice scheduling his deposition for
    March 31, 2014. In response, he filed a motion to quash the deposition notice and
    also sought a protective order. The magistrate judge quashed the deposition notice
    on April 16 because Defendants failed to confer with Mr. Quarrie before scheduling
    his deposition. But noting that Mr. Quarrie presented no argument why he was not
    subject to being deposed at a later date, the magistrate judge denied his request for a
    protective order and expressly instructed him to cooperate with Defendants’ counsel
    in scheduling his deposition.
    Mr. Quarrie did not cooperate. He refused to respond to Defendants’ counsel’s
    voicemails or emails. Instead, he filed a second motion for protective order on
    May 6, 2014, arguing he should be excused from a deposition because it would
    interfere with his work schedule and would be an extension of Defendants’
    oppressive acts, which continued to cause him emotional distress. The magistrate
    judge found that Mr. Quarrie’s motion for protective order was frivolous and ordered
    him to appear for his deposition on July 25. The magistrate judge also found that an
    2
    award of Defendants’ reasonable expenses was required by Fed. R. Civ. P.
    37(a)(5)(B).
    Defendants submitted an affidavit of expenses totaling $786.45. Mr. Quarrie
    objected to the magistrate judge’s order denying his motion for protective order and
    awarding expenses, but he did not challenge the amount or reasonableness of
    Defendants’ stated expenses. On July 28, 2014, the district court overruled
    Mr. Quarrie’s objections and ordered him to appear for his deposition.1 The court
    agreed that his second motion for protective order was frivolous, that an award of
    expenses was mandated, and that Defendants’ stated expenses were reasonable. It
    ordered Mr. Quarrie to pay Defendants $786.45 by August 27, 2014 (hereafter,
    “expenses order”). The expenses order warned Mr. Quarrie that if he failed to
    comply he risked sanctions up to and including dismissal of his action.
    Mr. Quarrie moved for reconsideration of the expenses order. The district
    court denied his motion. He filed a second motion for reconsideration, which the
    court also denied. Mr. Quarrie then filed objections to the order denying his second
    motion for reconsideration.
    On August 26, 2014—one day before Mr. Quarrie’s deadline to comply with
    the expenses order—he filed a notice attempting to appeal that order to this court.
    This court dismissed Mr. Quarrie’s appeal for lack of jurisdiction on September 15,
    2014. Meanwhile, after Mr. Quarrie failed to pay Defendants’ expenses by the
    1
    Mr. Quarrie had apparently already appeared for his deposition on July 25,
    2014, as previously ordered by the magistrate judge.
    3
    August 27 deadline, they filed a notice of non-compliance and requested dismissal of
    his action under Rule 41(b).
    After his appeal was dismissed, Mr. Quarrie repeatedly attempted to renew his
    objections to the expenses order in the district court, asking that it be set aside at
    least six more times. On September 24, in addition to asking the district court to
    vacate the expenses order, Mr. Quarrie sought an extension until October 31 to
    comply. On October 3, he notified the court he had been laid off from his job and
    asked that the expenses order be set aside on that basis. He moved for the same relief
    on October 6; renewed that request on October 8; and moved again on October 19.
    Mr. Quarrie asserted that his requests to set aside the expenses order were no longer
    frivolous due to his unemployment.
    Mr. Quarrie’s proposed extension date—October 31—came and went without
    him paying Defendants’ expenses. Defendants filed a second notice of
    non-compliance and again sought dismissal under Rule 41(b). Mr. Quarrie responded
    by stating he had paid $50 toward Defendants’ expenses, but he continued to
    challenge the expenses order as unjust and unlawful.
    B.
    On November 13, 2014, the magistrate judge issued proposed findings and a
    recommended disposition (“PF&RD”) on Defendants’ request for dismissal under
    Rule 41(b). That rule provides: “If the plaintiff fails . . . to comply with . . . a court
    order, a defendant may move to dismiss the action or any claim against it.” The
    PF&RD applied the Ehrenhaus factors: (1) “the degree of actual prejudice to the
    4
    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.” Ehrenhaus v. Reynolds, 
    965 F.2d 916
    , 921 (10th Cir.
    1992) (internal quotation marks omitted).
    The magistrate judge found that Defendants were prejudiced by Mr. Quarrie’s
    failure to comply with the expenses order and would continue to be prejudiced by his
    frivolous filings. At that time, Mr. Quarrie still had not paid the full amount of
    Defendants’ expenses and had offered little indication he intended to do so. The
    magistrate judge also found that Mr. Quarrie’s repeated, frivolous filings were
    interfering with the judicial process. The PF&RD further concluded that Mr. Quarrie
    alone was culpable for his failure to comply with the expenses order. Regarding his
    claim of poverty, the magistrate judge found that, through the deadline to comply
    with the expenses order, the evidence indicated that Mr. Quarrie was earning $8,000
    per month. Therefore, even assuming he later became indigent, his current poverty
    did not mitigate his culpability for failing to comply with the expenses order by the
    August 27 deadline. The magistrate judge also found that the district court had
    expressly warned Mr. Quarrie at least three times before that date that his case may
    be dismissed if he failed to pay Defendants’ expenses. Finally, the PF&RD
    concluded that a lesser sanction would not be effective based on Mr. Quarrie’s
    continued frivolous challenges to the expenses order. The magistrate judge therefore
    5
    recommended dismissal of Mr. Quarrie’s action based on his failure to comply with
    the expenses order.
    C.
    Mr. Quarrie filed objections to the PF&RD, in which he indicated he had made
    another partial payment of Defendants’ expenses. Over the next two weeks, he filed
    several more notices of additional partial payments, indicating that he had paid
    Defendants’ expenses in full as of December 1, 2014.
    On January 6, 2015, the district court overruled Mr. Quarrie’s objections,
    adopted the magistrate judge’s PF&RD, and dismissed his action with prejudice. The
    court agreed that Mr. Quarrie’s repeated attempts to challenge the expenses order
    were frivolous and had impeded the judicial process; Defendants had been prejudiced
    and would continue to be prejudiced by having to respond to his frivolous filings;
    Mr. Quarrie’s failure to comply with the expenses order by the August 27 deadline
    demonstrated his defiance of that order; he alone was culpable for his failure to
    comply and for his frivolous filings; Mr. Quarrie had been admonished that his action
    would be dismissed if he failed to comply with the expenses order; and further
    sanctions less than dismissal had not been and would not be effective.
    Regarding Mr. Quarrie’s culpability, the district court addressed his alleged
    poverty and the fact he had ultimately paid Defendants’ expenses in full. Like the
    magistrate judge, the court found his current poverty was irrelevant because he was
    still employed and able to pay as of the August 27 deadline to comply with the
    expenses order. It also concluded that Mr. Quarrie’s payment in full of Defendants’
    6
    expenses, after the magistrate judge recommended dismissal of his action, did
    nothing to mitigate his culpability for failing to pay Defendants’ expenses in August,
    as ordered.
    II.
    We review for an abuse of discretion a district court’s dismissal of an action
    under Rule 41(b) based on a party’s failure to comply with a court order. See Gripe
    v. City of Enid, 
    312 F.3d 1184
    , 1188 (10th Cir. 2002). Discovery rulings are also
    reviewed for an abuse of discretion. See World Publ’g Co. v. U.S. Dep’t of Justice,
    
    672 F.3d 825
    , 832 (10th Cir. 2012). Under this standard,
    [A] trial court’s decision will not be disturbed unless the appellate court has
    a definite and firm conviction that the lower court made a clear error of
    judgment or exceeded the bounds of permissible choice in the
    circumstances. . . . An abuse of discretion occurs when the district court’s
    decision is arbitrary, capricious or whimsical, or results in a manifestly
    unreasonable judgment.
    Moothart v. Bell, 
    21 F.3d 1499
    , 1504-05 (10th Cir. 1994) (citation and internal
    quotation marks omitted).
    We liberally construe a pro se party’s briefs. See de Silva v. Pitts, 
    481 F.3d 1279
    , 1283 n.4 (10th Cir. 2007). But contrary to Mr. Quarrie’s suggestion, the court
    rules apply equally to represented parties and pro se litigants. See Garrett v. Selby
    Connor Maddux & Janer, 
    425 F.3d 836
    , 840 (10th Cir. 2005). And we will not craft
    legal arguments for a pro se party. See 
    id. at 841
    .
    On appeal, Mr. Quarrie contends that the district court abused its discretion by:
    (1) denying his second motion for protective order; (2) entering the unlawful and
    7
    unduly harsh expenses order; and (3) dismissing his action under Rule 41(b) because
    (i) his filings after entry of the expenses order were not frivolous; (ii) he was not
    required to comply with the expenses order while it was on appeal to this court;
    (iii) the court ignored his loss of employment and his requests for relief from the
    expenses order; and (iv) he paid Defendants’ expenses in full before the district court
    entered the dismissal order.
    A.
    In his second motion for protective order, Mr. Quarrie asked the district court
    to preclude Defendants from taking his deposition altogether. He argues the court
    abused its discretion in denying that motion because he was legitimately concerned
    about his ability to attend a deposition in New Mexico while he was working in
    another state. But the district court found that Mr. Quarrie made no attempt to show
    that the requested discovery would be unduly costly or burdensome. We see no
    abuse of discretion.
    Mr. Quarrie also contends that the district court abused its discretion in
    denying his second motion for protective order—and more specifically, in ordering
    him to appear for his deposition on July 25, 2014—because the deadline for
    discovery had passed at that time. The district court held that Mr. Quarrie waived
    this argument by failing to raise it before the magistrate judge. But in any event, the
    court said his contention failed on the merits because Mr. Quarrie’s filing of the
    second motion for protective order caused the delay in scheduling his deposition and
    the magistrate judge had discretion to reopen discovery to allow the taking of a single
    8
    deposition. See Dowell ex rel Dowell v. Bd. of Educ. of Okla. City Pub. Sch., 
    8 F.3d 1501
    , 1508 (10th Cir. 1993) (“The decision to reopen discovery is . . . left to the
    district court’s discretion.”).
    Mr. Quarrie has not demonstrated that the district court abused its discretion in
    denying his second motion for protective order.
    B.
    Mr. Quarrie contends that the district court abused its discretion in entering the
    expenses order because the order is unlawful and unduly harsh. The first contention
    lacks merit, and Mr. Quarrie cannot raise the second issue for the first time on
    appeal.
    After the district court denied his second motion for protective order,
    Rule 37(a)(5)(B) required the court to order Mr. Quarrie to pay Defendants’
    “reasonable expenses incurred in opposing the motion, including attorney’s fees”
    unless his “motion was substantially justified or other circumstances make an award
    of expenses unjust.” The district court found that Mr. Quarrie’s second motion for
    protective order was frivolous and therefore not substantially justified. It noted that
    he filed his second motion for protective order after the magistrate judge, in denying
    his first motion for protective order, admonished him that he was subject to being
    deposed and ordered him to cooperate with Defendants’ counsel in scheduling his
    deposition. Mr. Quarrie fails to show an abuse of discretion in the court’s ruling that
    his second motion for protective order was frivolous.
    9
    He also argues that the amount of the expenses award—$786.45—is
    unreasonable. Although he claims that he objected to Defendants’ proffered
    expenses, citing his filings in response to the magistrate judge’s order, the record
    does not support that contention. As the district court found, Mr. Quarrie never
    objected to the amount or the reasonableness of Defendants’ expenses. And he
    cannot raise that issue for the first time on appeal. See Somerlott v. Cherokee Nation
    Distribs., Inc., 
    686 F.3d 1144
    , 1150 (10th Cir. 2012) (“An issue is preserved for
    appeal if a party alerts the district court to the issue and seeks a ruling.” (internal
    quotation marks omitted)).
    C.
    In dismissing Mr. Quarrie’s action under Rule 41(b), the district court
    addressed each of the Ehrenhaus factors, concluding that they weighed in favor of
    dismissal as a sanction for his failure to comply with the expenses order. Mr. Quarrie
    contends that the district court abused its discretion.
    He first argues that Defendants were not prejudiced by his failure to timely
    comply with the expenses order because he ultimately paid their expenses several
    months later, and his numerous filings in the interim were not frivolous, but were part
    of the normal course of jurisprudence. The district court disagreed. It found that
    Mr. Quarrie repeatedly challenged the expenses order as unlawful and unjust, even as
    he finally began making partial payments long after the deadline to comply.
    Consequently, Defendants were required to expend further resources in responding to
    his repeated frivolous and dilatory attempts to challenge that order, thereby causing
    10
    and continuing to cause prejudice to Defendants. Moreover, Mr. Quarrie’s string of
    frivolous filings evidenced his willful disregard of the expenses order, and they
    interfered with—and would continue to interfere with—the judicial process to an
    unacceptable extent. Mr. Quarrie fails to show the district court abused its discretion
    in making these findings.
    Mr. Quarrie also challenges the district court’s finding that he alone was
    culpable for his failure to comply with the expenses order. He first argues that he
    was not required to comply with that order while it was on appeal to this court. But
    the district court did not lose jurisdiction to enforce the expenses order based on his
    deficient notice appealing a non-final order. See Arthur Andersen & Co. v.
    Finesilver, 
    546 F.2d 338
    , 340-41 (10th Cir. 1976). Nor did Mr. Quarrie seek, and
    this court did not grant, a stay of the expenses order pending his appeal. In any
    event, Mr. Quarrie did not file his notice of appeal until the day before the August 27
    deadline to comply with the expenses order. Thus, the pendency of his appeal could,
    at most, excuse his noncompliance for a single day.
    In finding him entirely culpable, Mr. Quarrie also contends that the district
    court ignored his unemployment, his poverty, and his requests to modify the terms of
    the expenses order, as well as his eventual payment in full of Defendants’ expenses
    as of December 1, 2014. But the court did not ignore these allegations; rather, it
    found them irrelevant to his culpability because he did not lose his job until October,
    and there was no evidence that he was unable to pay Defendants’ expenses by the
    August 27 deadline. As to his eventual full reimbursement months later, the court
    11
    concluded it did not mitigate Mr. Quarrie’s culpability for advancing repeated,
    frivolous attempts to challenge the expenses order, rather than timely complying with
    it. Mr. Quarrie has not demonstrated an abuse of discretion in the district court’s
    finding that he was solely culpable for his failure to obey the expenses order.
    As to the final factor,2 Mr. Quarrie asserts generally that courts should
    consider the efficacy of lesser sanctions against pro se parties. But he does not
    identify any lesser sanction that would have been effective in his case where, despite
    the district court’s several warnings before the August 27 deadline, he persisted in his
    refusal to obey the expenses order, and he continued (before and after that date) his
    frivolous challenges to the order. He did not make any partial payment until
    Defendants’ filed their second notice of noncompliance, asking for dismissal of his
    action. And he made no additional partial payments until after the magistrate judge
    recommended the dismissal sanction. In finding that no lesser sanction would be
    effective, the district court concluded, “Plaintiff has never indicated his willingness
    to comply with the sanctions, and instead insists that he is entitled to endlessly repeat
    and rehash his complaints about the expenses order itself. And Plaintiff sees no
    reason such conduct is outside the normal course of civil procedures.” R. at 2189
    (internal quotation marks omitted).
    2
    Mr. Quarrie does not contend that the district court failed to warn him his
    action could be dismissed based on his noncompliance with the expenses order.
    12
    Mr. Quarrie has not demonstrated that the district court abused its discretion in
    dismissing his action under Rule 41(b) based on his failure to comply with the
    expenses order.
    III.
    The judgment of the district court is affirmed.
    Entered for the Court
    Carolyn B. McHugh
    Circuit Judge
    13