Hook v. Commissioner , 103 F. App'x 661 ( 2004 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 13 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
MARY JULIA HOOK,
Petitioner - Appellant,
No. 03-9006
v. (T.C. Nos. 8747-00 & 11725-02)
COMMISSIONER OF INTERNAL
REVENUE,
Respondent - Appellee.
ORDER AND JUDGMENT *
Before KELLY, HENRY, and TYMKOVICH, Circuit Judges. **
Petitioner Mary Julia Hook, a lawyer appearing pro se, appeals from the
United States Tax Court’s (1) dismissal of her and her husband’s joint
consolidated tax cases for failure to prosecute, (2) consolidation of her and her
husband’s tax cases involving different time periods, and (3) issuance of various
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
**
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.
scheduling orders. We have jurisdiction pursuant to 26 U.S.C. § 7482, and we
affirm.
The parties are familiar with the facts and we need not restate them here.
Suffice it to say that Ms. Hook and her husband David Lee Smith (collectively
“Taxpayers”) filed two petitions with the Tax Court contesting the
Commissioner’s determination that they owed additional federal income taxes for
1992, 1993, and 1994 (Case I), and 1995 and 1996 (Case II). I R. Doc. 1; II R.
Doc. 2. 1 Case I was originally set for trial on September 10, 2001, but was
continued, at Taxpayers’ request, after a hearing. I R. Docs. 4, 10. Following
four days of trial between May 2, 2002, and August 19, 2002, I R. Docs. 25, 49,
50, 59; several additional continuances at taxpayers’ request, I R. Docs. 6, 59 at
430-31; and the consolidation of the first case with the more recently filed second
case, I R. Doc. 68; II R. Doc. 10; Taxpayers failed to appear at the resumption of
the trial scheduled for May 19, 2003, I R. Doc. 80 at 1. Taxpayers had filed an
emergency motion to strike and reset the trial date on May 16, 2003. I R. Doc.
75. Taxpayers neglected to notify their ten witnesses under subpoena who did
appear at the trial setting along with one witness on behalf of the Commissioner.
I R. Doc. 80 at 11-12. Ms. Hook claims that she and her husband missed the trial
1
“I R. Doc.” references are to the documents in the original record of the
first case, Tax Court No. 8747-00; and “II R. Doc.” references are to the
documents in the original record of the second case, Tax Court No. 11725-02.
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setting because “they were both very, very sick.” Aplt. Br. at 26. After
permitting the taxpayers to show cause, the tax court then dismissed the
consolidated cases for failure to properly prosecute, I R. Doc. 82; II R. Doc. 24,
and entered a decision in the amounts requested by the Commissioner for each
year, I R. Doc. 83; II R. Docs. 25.
We review the dismissal for failure to prosecute for an abuse of discretion.
Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994). “The authority of a court
to dismiss . . . for lack of prosecution has generally been considered an ‘inherent
power,’ governed not by rule or statute but by the control necessarily vested in
courts to manage their own affairs so as to achieve the orderly and expeditious
disposition of cases.” Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962).
Dismissal for failure to prosecute is a severe sanction, and thus should be
imposed only after the careful exercise of judicial discretion. DeBardeleben v.
Quinlan, 937 F.2d 502, 504 (10th Cir. 1991). However, it is nevertheless an
appropriate sanction against a party who disregards court orders and fails to
proceed as required by court rules. Nat’l Hockey League v. Metro. Hockey Club,
Inc., 427 U.S. 639, 642 (1976).
In Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992), this court
described the following five factors that are relevant in determining whether a
court abused its discretion in dismissing a case:
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(1) the degree of actual prejudice to the [Commissioner]; (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. Only
when the aggravating factors outweigh the judicial system’s
strong predisposition to resolve cases on their merits is dismissal
an appropriate sanction.
(internal quotation marks and citations omitted). Upon our review of the record
and these five factors, we conclude that the Tax Court did not abuse its discretion.
First, Taxpayers’ repeated failure to comply fully with the tax court’s
orders requiring adequate pretrial preparation and stipulations not only resulted in
delay, but also wasted the Commissioner’s time and impeded efforts to resolve
these matters on the merits. Second, Taxpayers’ failure to comply with the tax
court’s orders wasted the tax court’s time and borders on contumacious behavior.
No court, including the tax court, is required to tolerate conduct that disrupts the
orderly administration of justice and hinders the court’s management of its
docket. The fact that Taxpayers’ ten witnesses showed up for the continuation of
the trial reflects a lack of consideration for and attention to obvious
consequences.
Third, despite Ms. Hook’s claims that she and her husband were “very, very
sick” on the May 19 trial date, the tax court is entitled to great deference in its
findings on credibility, McGoffin v. Barnhart, 288 F.3d 1248, 1254 (10th Cir.
2002), and it is clear that the tax court did not find her excuses to be credible, I R.
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Doc. 82 at 15. Moreover, Ms. Hook has not offered reasonable explanations for
her other failures to comply with the court’s orders.
Fourth, the tax court had threatened at least once to dismiss the case for
Taxpayers’ failure to comply with its orders and be prepared for trial, I R. Doc.
25 at 16; and no fewer than three orders setting these cases for trial contained the
following statement: “YOUR FAILURE TO APPEAR MAY RESULT IN
DISMISSAL OF THE CASE AND ENTRY OF DECISION AGAINST YOU,” I
R. Docs 4, 15; II R. Doc. 4.
Finally, Ms. Hook has not addressed the efficacy of lesser sanctions, other
than to say that there were unspecified sanctions short of dismissal that could
have been imposed. Aplt. Br. at 27. The tax court had already attempted to
remedy Taxpayers’ failure to prepare for trial by issuing additional, more specific
orders and by giving more time. Given that Taxpayers consistently failed to obey
the court’s orders, there is no reason to believe that lesser sanctions would have
been effective. The tax court did not abuse its discretion in dismissing the
consolidated case for failure to prosecute.
Ms. Hook also argues that the tax court abused its discretion by issuing
orders that
(1) consolidated two tax appeals, filed two years apart and at very
different stages of factual complexity and preparation; (2) used
the consolidation of Docket Nos. 8747-00 and 11725-02 to force
an unfair and unrealistic timetable on Ms. Hook and her husband
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for the trial of Docket No. 11725-02; (3) changed the original
May 12, 2003 trial date for the consolidated docket approximately
two weeks before the previously scheduled date, thereby forcing
Ms. Hook to cancel long-scheduled client matters . . . ; and (4)
treated Ms. Hook’s and her husband’s serious illnesses in mid-
May of 2003 as if they were non-existent . . . .
Aplt. Br. at 28. We have thoroughly reviewed the record in this case and do not
find any of the tax court’s above-referenced decisions to be an abuse of
discretion.
AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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