Park v. TD Ameritrade Trust Comp, Inc. , 481 F. App'x 449 ( 2012 )

FILED
United States Court of Appeals
Tenth Circuit
August 23, 2012
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
LORI L. PARK,
Plaintiff - Appellant,
No. 11-1572
v. (D.C. No. 10-CV-02599-PAB-KMT)
(D. Colo.)
TD AMERITRADE TRUST
COMPANY, INC.; TD
AMERITRADE ONLINE HOLDINGS
CORP.; TD AMERITRADE
HOLDING CORPORATION; THE
TORONTO-DOMINION BANK;
JOSEPH H. MOGLIA; J. THOMAS
BRADLEY, JR.; TD AMERITRADE
SERVICES COMPANY, INC.; TD
AMERITRADE, INC.,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges. **
Plaintiff-Appellant Lori Park appeals from the district court’s judgment
*
This order and judgment is not binding precedent, except under the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 the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
dismissing her case with prejudice for failure to prosecute based upon her non-
attendance at a scheduling conference. Fed. R. Civ. P. 16(f)(1)(A) & 41(b); R.
735-36. The district court also imposed filing restrictions. On appeal, she argues
that the district court erred in imposing this sanction “when allegations of
‘judicial case fixing’ were evident and exposed by the Plaintiff.” Aplt. Br. 1. We
have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.
Ms. Park has filed a series of actions against the Defendants-Appellees
arising from her prior employment. See Park v. TD Ameritrade Trust Co., Inc.,
461 F. App’x 753, 754-55 (10th Cir. 2012). In this action, the long story short is
that she did not attend a scheduling conference set by the magistrate judge after
the magistrate judge rejected repeated attempts to vacate it. R. 536-37. Nor did
Ms. Park provide any input in drafting the proposed scheduling order. Id. at 537.
When Ms. Park did not timely respond to an Order to Show Cause, the magistrate
judge recommended dismissal after considering the factors in Ehrenhaus v.
Reynolds, 965 F.2d 916, 921 (10th Cir. 1992); R. 540. The district court saw it
the same way after considering Ms. Park’s objections to the magistrate judge’s
recommendation. Id. at 721-24.
Our review is for an abuse of discretion. Lee v. Max Int’l, Inc., 638 F.3d
1318, 1320 (10th Cir. 2011). Although Ms. Park claims that she was unable to
attend because of her father’s illness or her own illness, before the conference she
indicated that she would not attend based on unsubstantiated allegations of
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judicial misconduct. R. 724. As for her claims of judicial bias, they lack
evidence; adverse rulings do not constitute bias. See Bixler v. Foster, 596 F.3d
751, 762 (10th Cir. 2010). Ms. Park has filed duplicative pleadings, wasting
resources and forcing other parties to incur expense. Though it is not clear
whether she is appealing the filing restrictions placed on her by the district court,
we conclude that the district court acted within its discretion. See Tripati v.
Beaman, 878 F.2d 351, 354 (10th Cir. 1989).
AFFIRMED. The motion to proceed in forma pauperis is DENIED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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