Hall v. Parsons Kinghorn Harris ( 2022 )

Appellate Case: 20-4040 Document: 010110732916 Date Filed: 09/01/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 1, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
ELLIS-HALL CONSULTANTS, LLC, a
Utah limited liability company;
ANTHONY HALL, an individual,
Plaintiffs,
v.
GEORGE B. HOFMANN, IV, an
individual; PARSONS KINGHORN
HARRIS n/k/a COHNE KINGHORN,
P.C., a Utah professional corporation;
MATTHEW M. BOLEY, an individual; Nos. 20-4040, 20-4041, 20-4045
KIMBERLEY L. HANSEN, an individual; (D.C. No. 2:12-CV-00771-DB)
GARY E. JUBBER, an individual; and (D.C. No. 2:15-CV-00913-DB)
DAVID R. HAGUE, an individual; (D. Utah)
FABIAN & CLENDENIN n/k/a FABIAN
VANCOTT, P.C., a Utah professional
corporation,
Defendants,
consolidated with
In re: RENEWABLE ENERGY
DEVELOPMENT CORPORATION,
Debtor.
---------------------------------------
ELIZABETH R. LOVERIDGE, Chapter 7
Trustee,
Plaintiff,
v.
TONY HALL; ELLIS-HALL
Appellate Case: 20-4040 Document: 010110732916 Date Filed: 09/01/2022 Page: 2
CONSULTANTS, LLC; SUMMIT WIND
POWER, LLC; SSP, A Trust, Scott
Rasmussen, Trustee; CLAY R.
CHRISTIANSEN, an individual; DIANE
E. CHRISTIANSEN, an individual;
RICHARD D. FRANCOM, an individual;
STEPHEN K. MEYER, an individual;
BONNIE G. MEYER, an individual; and
DOES I-X,
Defendants,
and
SUMMIT WIND POWER, LLC; and
KIMBERLY CERUTI, an individual,
Third-Party Plaintiffs –
Appellants/Cross-Appellees,
v.
PARSONS KINGHORN HARRIS, a
professional corporation; GEORGE B.
HOFMANN, IV, an individual;
MATTHEW BOLEY, an individual;
KIMBERLEY L. HANSEN, an individual;
VICTOR P. COPELAND, an individual;
LISA R. PETERSEN, an individual; and
MELYSSA DAVIDSON, an individual,
Third-Party Defendants –
Appellees/Cross-Appellants.
_________________________________
ORDER AND JUDGMENT*
*
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 This order and judgment is not binding precedent,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. But it
may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
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_________________________________
Before MORITZ, EBEL, and EID, Circuit Judges.
_________________________________
After years of intractable litigation, defendants moved to dismiss this case under
Federal Rules of Civil Procedure 37 and 41 as a sanction for plaintiffs’ conduct during
discovery. The district court granted the motion, and plaintiffs now appeal that dismissal
order (among other rulings). For the reasons that follow, we affirm.
Background
This dispute began over a decade ago—in December 2011—when Renewable
Energy Development Corporation (REDCO), a company that develops solar- and wind-
energy products, filed for Chapter 7 bankruptcy. George Hofmann, an attorney at Parsons
Kinghorn Harris (PKH), was appointed as REDCO’s trustee. In May 2012, Hofmann
filed an adversary proceeding on REDCO’s behalf against Summit Wind Power, LLC
(SWP) and others. Two months later, SWP and its sole owner, Kimberly Ceruti (together,
plaintiffs), brought a third-party complaint asserting various claims against Hofmann,
PKH, and other PKH attorneys (collectively, defendants). Broadly, plaintiffs alleged that
defendants engaged in malpractice in connection with the REDCO bankruptcy
proceedings. Those third-party proceedings—in particular, the discovery process during
those proceedings—are now the subject of this appeal.1
As the third-party proceedings entered discovery, the parties had a difficult time
1
Three days after plaintiffs filed their third-party complaint, Hofmann resigned as
REDCO trustee. The adversary proceedings eventually settled in 2014.
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working cooperatively.2 In April 2017, a newly assigned district-court judge instructed
the parties at a hearing to “[g]et discovery going” and move the case forward. Supp. App.
vol. 6, 1713. To that end, the district court encouraged the parties to confer and agree on
a scheduling order. The district court also encouraged Ceruti, who has sometimes
represented herself in these proceedings, to retain an attorney. After the hearing,
defendants circulated a proposed scheduling order to plaintiffs. A month later, having not
received a response, defendants requested a hearing so that a scheduling order could be
entered. Ceruti twice objected to their request, citing a litany of reasons. Eventually,
about nine months after the district court’s initial instruction to move the case along, a
scheduling order was entered (following a hearing before a magistrate judge).
With the scheduling order in place, defendants served document requests and
interrogatories on plaintiffs. Defendants also attempted to schedule depositions with
Ceruti—SWP’s designated witness under Federal Rule of Civil Procedure Rule 30(b)(6),
which governs depositions directed to an organization. Although defendants offered SWP
several deposition dates over a two-month period, SWP informed defendants that neither
Ceruti (as its designated witness) nor SWP’s counsel was available—without providing
alternative dates. And despite an extension, Ceruti failed to timely respond to defendants’
document requests or the single interrogatory directed at her. Instead, pointing to her
status as a pro se litigant and other pending litigation, Ceruti moved to stay the district-
2
Before discovery, the defendants had unsuccessfully moved to dismiss the case
under a doctrine that precludes certain lawsuits against bankruptcy trustees. That motion
led to an interlocutory appeal, which was pending from December 2013 until August
2015.
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court proceedings, a motion the district court denied.
Citing these difficulties with the scheduling order, the Rule 30(b)(6) deposition,
and the document requests and interrogatory, as well as Ceruti’s motion to stay,
defendants moved to dismiss Ceruti’s claims under Rule 41(b) for failing to participate in
discovery in compliance with the Federal Rules of Civil Procedure. Weighing the
relevant factors, the district court denied defendants’ motion but observed that the
circumstances of the case only “narrowly weigh[ed] against dismissal.” Supp. App. vol.
7, 2053. Agreeing with defendants, the district court attributed “significant delays” in the
case to Ceruti. Id. It noted that Ceruti’s “failure to comply with deadlines, refusal or
inability to attend hearings and schedule depositions, failure to respond to discovery
requests, and repeated attempts to stay or delay the litigation” had burdened the judicial
system and court staff while interfering “with the effective administration of justice.” Id.
The court explained that it had not “explicitly provided [Ceruti] with advance[] notice of
the potential sanction of dismissal,” but it added that its order should be understood to
“provide[] such notice.” Id. at 2053–54.
So the case continued, but matters did not improve. In the months that followed,
defendants filed several motions to compel discovery. For instance, defendants’ first
attempt to conduct SWP’s Rule 30(b)(6) deposition was marred by Ceruti’s disruptive
behavior, including verbose and nonresponsive answers to defendants’ questioning,
requiring defendants to continue the deposition and request judicial supervision. The
district court granted the motion, explaining that given the “facts and history of this
case,” judicial supervision was “an appropriate remedy”; it ordered the magistrate judge
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to supervise the deposition in person. Supp. App. vol. 9, 2556. Similar disruptive
behavior occurred during Ceruti’s personal deposition: Following a joint phone call from
the parties during that deposition, the magistrate judge “encouraged [Ceruti] to answer
counsel’s questions to the best of her ability without being argumentative and warned that
a failure to do so could result in sanctions.” Id. at 2520.
A few weeks later, on its own initiative, the district court issued a show-cause
order requiring the parties to explain why the action should not be “dismissed as a
sanction due to misconduct.” Id. at 2569. The district court was “troubled by the ongoing
willful pattern of conduct that [had] delay[ed] and disrupt[ed] the litigation.” Id. The
court specifically called out Ceruti’s conduct at SWP’s Rule 30(b)(6) deposition and
noted that its prior admonition—that the case could be dismissed as a sanction—had gone
unheeded. The district court ordered briefing from the parties and, together with the
magistrate judge, conducted a hearing on its show-cause order.
At that hearing, the district court and magistrate judge detailed plaintiffs’ conduct
during discovery, and the district court twice noted that it was “this close” to dismissing
Ceruti from the case. App. vol. 13, 2920, 2945. The district court attributed much of the
difficulty to Ceruti litigating the case pro se. Accordingly, the district court explained that
Ceruti had six weeks to find an attorney, or else it would appoint Jared Bramwell (who
was already representing SWP, Ceruti’s company) to represent her. The district court
added that it had not previously been assigned to “a case that has been this naggingly
burdensome,” id. at 2907, that this “case has got to become a normal case,” and that the
parties “have to cooperate,” id. at 2951. The magistrate judge added that the parties’
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conduct had to change, urging “[r]esponsiveness, cooperation, [and] meaningful meet and
confer[s].” Id. at 2931. The magistrate judge emphasized that attempts “to resolve issues”
with the court had to be “a last resort, not a first one.” Id. Later, when Ceruti failed to
obtain an attorney to represent her within the allotted time, the district court appointed
Bramwell as her attorney.
After this hearing, the parties stipulated to an amended scheduling order. In the
months that followed, defendants made supplemental discovery disclosures, including
some documents that they disclosed only after plaintiffs obtained some of those same
documents by third-party subpoena. Given the newly produced documents, defendants
made Hofmann available for an additional deposition, so he could be questioned about
the new documents. Additionally, ten days before the close of fact discovery, new
attorneys entered appearances to represent plaintiffs, including Ceruti. Shortly after new
counsel appeared, plaintiffs unilaterally canceled PKH’s Rule 30(b)(6) deposition—
which the parties had agreed to hold even though fact discovery had closed—after a
dispute over the number of topics in the notice of deposition, as well as disagreements
over the time permitted for the deposition.
Then, apparently because of what plaintiffs perceived as defendants’ belated
document disclosures, plaintiffs moved to strike defendants’ answer and enter default
judgment in their favor. Plaintiffs also moved to stay the case until their pending default
motion was resolved, or alternatively, asked that the pending expert-discovery deadlines
be extended.
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The next day—the day of the deadline—plaintiffs submitted their expert
disclosures. But the disclosures did not conform to the requirements of Federal Rule of
Civil Procedure 26(a)(2)(B) because plaintiffs failed to include the actual expert reports.
Rather, plaintiffs stated that they would only disclose expert reports after the district court
ruled on their motion to strike defendants’ answer or after the completion of fact
discovery. What’s more, one of plaintiffs’ experts was retained only two days before the
disclosure deadline. And that expert’s retainer agreement expressly contemplated that no
report would be submitted by the deadline.
The district court and the magistrate judge conducted a hearing on July 29, 2019,
to address the pending motions. At the hearing, the district court remarked that this case
has “a history that is uncommonly difficult, torture.” Supp. App. vol. 12, 3378. And after
reviewing the transcript and videotape of SWP’s Rule 30(b)(6) deposition, the district
court described the conduct of plaintiffs’ new counsel as “one of the more troubling
things to watch” and stated that the attorney was “obstructionist,” “difficult,” and
“uncooperative in the extreme.” Id. The magistrate judge echoed that sentiment. All of
the pending motions were decided in defendants’ favor, including their motion to strike
plaintiffs’ expert disclosures, which they filed shortly after this hearing.
Defendants then moved, under Rules 37 and 41, to dismiss the case—this time in
its entirety—with prejudice as a sanction for plaintiffs’ improper discovery conduct; they
also moved for summary judgment on plaintiffs’ remaining claims. After more than
seven years of litigation over plaintiffs’ claims, the district court granted both motions in
a single written order, dismissing the case with prejudice. Plaintiffs appeal those
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dispositive orders (Ceruti in Appeal No. 20-4040, and SWP in Appeal No. 20-4041), as
well as several discovery rulings.3
Analysis
We review involuntary dismissals under Rules 37(b)(2) and 41(b) for abuse of
discretion. See Olsen v. Mapes, 333 F.3d 1199, 1204 (10th Cir. 2003) (reviewing
dismissal under Rule 41(b) for failure to comply with rules and court orders); Procter &
Gamble Co. v. Haugen, 427 F.3d 727, 738 (10th Cir. 2005) (reviewing dismissal under
Rule 37 as discovery sanction). A district court abuses its discretion when it makes “a
clear error of judgment or exceed[s] the bounds of permissible choice in the
circumstances.” Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1143
(10th Cir. 2007) (alteration in original) (quoting McEwen v. City of Norman, 926 F.2d
1539, 1553–54 (10th Cir. 1991)). It is also an abuse of discretion to rely “upon clearly
erroneous findings of fact.” Id. A factual “finding is clearly erroneous if we are left with a
definite and firm conviction that a mistake has been made.” Scalia v. Paragon
Contractors Corp., 957 F.3d 1156, 1161 (10th Cir. 2020).
Under Rule 41(b), “a district court may dismiss an action with prejudice if the
plaintiff fails ‘to comply with [the Federal Rules of Civil Procedure] or any order of
court.’” Olsen, 333 F.3d at 1204 (alteration in original) (quoting Fed. R. Civ. P. 41(b)).
Under Rule 37(b)(2), a district court may sanction a party who “fails to obey an order to
provide or permit discovery.” Procter & Gamble, 427 F.3d at 737. Among “the available
3
Defendants also cross-appeal (in Appeal No. 20-4045) the denial of the motion to
dismiss that they filed earlier in the litigation.
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sanctions” is an order “‘dismissing the action or proceeding.’” Id. (quoting Fed. R. Civ.
P. 37(b)(2)(A)(v)).
Before dismissing a case with prejudice as a sanction—whether under Rule 41 or
37—a district court should evaluate specific factors “on the record.” Ehrenhaus v.
Reynolds, 965 F.2d 916, 921 (10th Cir. 1992); see also Ecclesiastes, 497 F.3d at 1143–44
(applying these factors in Rule 41(b) dismissal). Those factors are: “(1) the degree of
actual prejudice to the other party; (2) the amount of interference with the judicial
process; (3) the litigant’s culpability; (4) whether the court warned the party in advance
that dismissal would be a likely sanction for noncompliance; and (5) the efficacy of lesser
sanctions.” Ecclesiastes, 497 F.3d at 1143. These factors are “not exhaustive, nor are the
factors necessarily” of equal weight. Procter & Gamble, 427 F.3d at 738 (quoting Chavez
v. City of Albuquerque, 402 F.3d 1039, 1044 (10th Cir. 2005)). Further, “[t]hese factors
do not constitute a rigid test; rather, they represent criteria for the district court to
consider prior to imposing dismissal as a sanction.” Ehrenhaus, 965 F.2d at 921. “Only
when the aggravating factors outweigh the judicial system’s strong predisposition to
resolve cases on their merits is dismissal an appropriate sanction.” Id. (quoting Meade v.
Grubbs, 841 F.2d 1512, 1521 n.7 (10th Cir. 1988)).
Plaintiffs concede that the district court applied the correct factors but challenge its
conclusion as to each, arguing that the ultimate dismissal ruling was an abuse of
discretion.4 We accordingly review the district court’s analysis of each factor, beginning
4
Ceruti, proceeding pro se on appeal, incorporates SWP’s brief, so we consider
plaintiffs’ arguments collectively.
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with the degree of prejudice suffered by defendants. See id. The district court found this
factor satisfied because plaintiffs’ conduct unnecessarily delayed the litigation, caused
defendants’ legal fees to increase, and created uncertainty around defense strategy.
Specifically, the district court highlighted plaintiffs’ conduct related to the Rule 30(b)(6)
depositions of both SWP and PKH, plaintiffs’ unwillingness to work towards resolving
discovery disputes rather than involving the court, plaintiffs’ failure to produce timely
and proper expert reports, and plaintiffs’ failure to provide a damages calculation. On
appeal, plaintiffs complain that defendants’ belated production of documents went
unpunished and assert various challenges to the district court’s factual assessment of their
conduct. But these challenges do not demonstrate that the district court’s factual findings
are clearly erroneous.
And critically, plaintiffs do not address the crux of the district court’s reasoning as
to the prejudice factor—that plaintiffs’ conduct resulted in increased costs and delay and
that the failure to comply with the expert-disclosure rules prejudiced defendants because
it created uncertainty about how defendants would litigate the case. Indeed, consistent
with the district court’s conclusion, increased costs and delays are valid reasons to find
actual prejudice. See Jones v. Thompson, 996 F.2d 261, 264 (10th Cir. 1993) (“Plaintiffs
have prejudiced the [d]efendants by causing delay and mounting attorney[] fees.”); Auto-
Owners Ins. Co. v. Summit Park Townhome Ass’n, 886 F.3d 852, 860 (10th Cir. 2018)
(concluding prejudice factor satisfied when defendant’s violation of disclosure order
wasted time and then “sparked months of litigation”). Accordingly, the district court did
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not err in finding that defendants were prejudiced by plaintiffs’ conduct on the basis of
delays and increased costs.
Turning to the next factor—interference with the judicial process—the district
court noted that in addition to the discovery issues highlighted above, plaintiffs had
forced the court (and its staff) to handle their numerous extraneous filings, motions, and
hearings. See Ehrenhaus, 965 F.2d at 921. The district court again highlighted plaintiffs’
failure to provide timely expert reports, as well as their attempt to file such reports six
weeks late, without permission, a deadline extension, or a showing of good cause,
remarking that this course of action “effectively destroyed” the court’s schedule for the
case. App. vol. 12, 2557.
On appeal, plaintiffs contend that the district court’s findings on this factor
“focused principally and uniquely on Ceruti.” SWP Br. 24. They also note that their
expert reports were eventually produced with months to go before the scheduled trial
date. Yet contrary to plaintiffs’ contention, the district court’s analysis did not focus
solely on Ceruti’s conduct. Indeed, the district court attributed the failure to provide
timely expert reports without good cause to all plaintiffs, not just Ceruti.5 Moreover,
although plaintiffs suggest that their late expert reports did not interfere with the judicial
process because the trial was still months away, the district court disagreed, stating that
the “failures to comply with the . . . scheduling order would have delayed trial
5
Further, in other parts of its dismissal order, the district court detailed additional
conduct attributable to all plaintiffs, including their unwillingness to work towards
resolving discovery disputes rather than involving the court, their conduct during the
Rule 30(b)(6) depositions, and their failure to provide a damages calculation.
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significantly.” App. vol. 12, 2557. And plaintiffs’ conclusory suggestion to the contrary
does not render the district court’s factual finding on this point clearly erroneous.
We have held that causing a district court to expend unnecessary resources can
establish interference with the judicial process. See Jones, 996 F.2d at 265 (finding
interference with judicial process when plaintiffs “repeatedly ignored court orders and
thereby hindered the court’s management of its docket and its efforts to avoid
unnecessary burdens on the court and the opposing party”); Auto-Owners Ins., 886 F.3d
at 860 (finding this factor satisfied when there were “hundreds of wasted hours by [the
opposing party], the court,” and other entities involved in the case). Having found that
both the unnecessary discovery motions and the untimely expert reports wasted judicial
resources, the district court did not err in weighing this factor in favor of dismissal.
Next, the district court considered plaintiffs’ culpability. See Ehrenhaus, 965 F.2d
at 921. This factor requires “‘willfulness, bad faith, or [some] fault’ rather than just a
simple ‘inability to comply.’” Lee v. Max Int’l, LLC, 638 F.3d 1318, 1321 (10th Cir.
2011) (alteration in original) (quoting Archibeque v. Atchison, Topeka & Santa Fe Ry., 70
F.3d 1172, 1174 (10th Cir. 1995)). “[W]illful” conduct stands in contrast to instances of
“‘involuntary noncompliance.’” Sheftelman v. Standard Metals Corp. (In re Standard
Metals Corp.), 817 F.2d 625, 628–29 (10th Cir. 1987) (quoting Patterson v. C. I. T.
Corp., 352 F.2d 333, 336 (10th Cir. 1965)). The district court found plaintiffs were
culpable because they: (1) unilaterally canceled PKH’s 30(b)(6) deposition;
(2) obstructed the taking of SWP’s 30(b)(6) deposition; (3) moved to strike defendants’
answer and seek default judgment rather than take the more moderate approach offered
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by defendants; and (4) failed to provide timely expert reports and instead filed them six
weeks late despite being denied an extension.
Plaintiffs argue that this factor is not met because they did not act willfully—
rather, on plaintiffs’ telling, the problems in this case (particularly with respect to their
expert disclosures) stemmed from simple misunderstandings with defendants. We
disagree. To illustrate the point, consider plaintiffs’ approach to the expert reports. First,
one of their experts was not retained until two days before the expert-disclosure deadline.
Second, plaintiffs do not dispute that the expert’s retainer agreement expressly
contemplated seeking an extension and therefore missing the deadline for his report. And
third, plaintiffs unilaterally refused to disclose their expert reports until the district court
ruled on the motion to strike defendants’ answer—essentially choosing to substitute their
own judgment and preference for the district court’s. Given these events, we agree with
the district court’s conclusion that plaintiffs “consciously chose” to submit the reports
late and therefore acted willfully. App. vol. 12, 2558; see also Sheftelman, 817 F.2d at
628–29 (distinguishing “willful” and “intentional” conduct from involuntary failures to
comply, such as failing to pay fine due to insolvency).
Moreover, even if we were to accept plaintiffs’ explanation that their initial failure
to timely produce their expert report stemmed from a misunderstanding with opposing
counsel, that does not explain why over a month later they had still not produced their
expert reports. Further, plaintiffs conceded at the July 29 motion hearing that the decision
to cancel the Rule 30(b)(6) deposition, scheduled after the close of fact discovery, was
“an error in hindsight.” SWP Br. 22. Accordingly, plaintiffs’ “protestations ring hollow.”
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Ecclesiastes, 497 F.3d at 1148. Their attempt to shift blame to defendants’ purportedly
belated discovery disclosures (which under the operative scheduling order were in fact
timely) does not account for plaintiffs’ own behavior or the fact that defendants offered a
deposition for plaintiffs to inquire about the newly disclosed documents.6
What’s more, plaintiffs fail to address several aspects of the district court’s ruling,
including their decision—after defendants supplemented their initial disclosures—to
move to strike defendants’ answer and seek default judgment, rather than working with
defendants to arrange depositions to ask about the new documents. And they do not
persuasively address counsel’s and Ceruti’s unprofessional conduct at SWP’s and PKH’s
Rule 30(b)(6) depositions.7 Cf. Ecclesiastes, 497 F.3d at 1148–49 (concluding that
disruptive conduct related to scheduling depositions satisfied culpability factor). In short,
we conclude the district court did not err in weighing this factor in favor of dismissal.
As for the next factor—whether the court warned the plaintiffs in advance that
dismissal would be a likely sanction for noncompliance—plaintiffs concede the district
court warned that dismissal was possible. See Ehrenhaus, 965 F.2d at 921. In particular,
6
Plaintiffs cite Toma v. City of Weatherford, 846 F.2d 58 (10th Cir. 1988), to
support their contention that their missteps were involuntary. But their conduct is unlike
the plaintiff’s behavior in Toma, which amounted to “some laxity and inattentiveness to
filing deadlines.” Toma, 846 F.3d at 61. Moreover, in Toma, the suit had been pending
for only seven months at the time of dismissal. Id. Here, by stark contrast, plaintiffs’
claims had been pending for over seven years.
7
Plaintiffs also complain that they should not be punished for disagreements
between opposing attorneys. That argument is unavailing. In the involuntary-dismissal
context, we have explained that there is “‘nothing novel’ about holding clients
responsible for the conduct of their attorneys, even conduct they did not know about.”
Ecclesiastes, 497 F.3d at 1145 n.12 (quoting Gripe v. City of Enid, 312 F.3d 1184, 1189
(10th Cir. 2002)).
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when denying defendants’ initial motion to dismiss Ceruti’s claims, the district court
provided her with clear notice. And the district court’s later show-cause order required
“[e]ach party” to separately “show cause why this action should not be dismissed.” Supp.
App. vol. 9, 2570. Such direction effectively warned all plaintiffs that dismissal was a
possibility. See Ecclesiastes, 497 F.3d at 1150 (explaining that “notice (1) without an
express warning and (2) objectively based upon the totality of the circumstances (most
importantly, the trial court’s actions or words)” is “deemed to be sufficient”); Ehrenhaus,
965 F.2d at 921 (finding notice factor satisfied by district court’s invitation to defendant
to move to dismiss case if plaintiff failed to attend deposition). Plaintiffs contend,
however, that there was no “‘noncompliance’ meriting the harsh sanction of dismissal.”
SWP Br. 28. But as we have detailed, plaintiffs’ conduct did not change, even after the
district court’s warnings. Accordingly, the district court did not err in weighing this factor
in favor of dismissal as well.
With respect to the final factor—the efficacy of lesser sanctions—plaintiffs argue
that the district court failed to consider less severe alternatives. See Ehrenhaus, 965 F.2d
at 921. In weighing this factor, the district court explained that plaintiffs’ actions were
“willful and deliberate” and that their disruptive conduct in the case had “not abated
despite prior orders, warnings, multiple hearings, and admonitions.” App. vol. 12, 2559.
All of this led the district court—which, along with the magistrate judge, observed
plaintiffs’ conduct in this case firsthand—to conclude that anything short of “dismissal
would be ineffective.” Id. Plaintiffs offer no meaningful reason to doubt the district
court’s conclusion.
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In sum, it is true that “dismissal is a severe sanction and is not ordinarily
warranted if lesser sanctions would be effective.” Jones, 996 F.2d at 265. Yet after
careful review of the district court’s order and the relevant portions of the voluminous
record, we conclude that the district court “thoroughly considered and properly applied”
the relevant factors. Ecclesiastes, 497 F.3d at 1151. The record “shows [plaintiffs] flouted
numerous court orders . . . and abused the discovery process.” Jones, 996 F.2d at 266.
And notably, the district court narrowly denied an earlier motion to dismiss Ceruti’s
claims and warned that failure to correct course could lead to dismissal; it then also
issued its own show-cause order directing the parties to explain why the case should not
be dismissed after no course correction took place. The district court’s decision to
ultimately follow through on its warnings is not an abuse of discretion under these
circumstances.
Moreover, that Ceruti at times proceeded pro se in this litigation does not help her
here. The district court repeatedly urged Ceruti to obtain counsel and finally appointed
SWP’s attorney to represent her after she failed to retain one. That Ceruti “did not have
[the] benefit of counsel at various times was a problem of [her] own making.” Id. And
although we take a solicitous approach to pro se litigants, we have repeatedly “insisted
that pro se parties follow the same rules of procedure that govern other litigants.” Garrett
v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (quoting Nielsen v.
Price, 17 F.3d 1276, 1277 (10th Cir. 1994)).
For all of these reasons, we conclude that the district court did not display a clear
error of judgment or exceed the bounds of permissible choice under these circumstances.
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Accordingly, we conclude the district court did not abuse its discretion in dismissing this
action.8
Conclusion
Finding no abuse of discretion in the district court’s careful analysis, we affirm its
order dismissing the complaint under Rules 37(b)(2)(A)(v) and 41(b).
Entered for the Court
Nancy L. Moritz
Circuit Judge
8
Because we affirm the district court’s dismissal order, we do not address the
summary-judgment order or any of the nondispositive issues that plaintiffs, including
Ceruti, pursue on appeal. And given this disposition, we do not reach defendants’ cross-
appeal. See Meyerhoff v. Michelin Tire Corp., 70 F.3d 1175, 1184 n.6 (10th Cir. 1995)
(declining to reach merits of pending cross-appeal). As a final matter, we decline to
consider the exhibits Ceruti submitted with her briefs on appeal, many of which were not
presented in the district court. See United States v. Kennedy, 225 F.3d 1187, 1191 (10th
Cir. 2000) (explaining that we “will not consider material outside the record before the
district court” except in rare circumstances).
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