Professional Documents
Culture Documents
DEC 3 1999
PATRICK FISHER
CHIBU ANAEME,
Plaintiff-Appellant,
v.
FHP OF NEW MEXICO, INC., a New
Mexico corporation; KIRSTIN
GAUTHIER, individually and in her
official capacity as Human Resources
Manager for FHP of New Mexico,
Inc.; RAY RODMAN, individually
and in his official capacity as Hiring
Supervisor for FHP of New Mexico,
Inc.; ROBERT HOLMES, individually
and in his official capacity as Hiring
Supervisor for FHP of New Mexico,
Inc.; MICHELLE WILLIAMS,
individually and in her official
capacity as Team Leader for FHP of
New Mexico, Inc.; JEFF CAMPBELL,
individually and in his official
capacity as Hiring Supervisor for FHP
of New Mexico, Inc.; LARRY
GEORGOPOULOS, individually and
in his official capacity as Clinical
Director for FHP of New Mexico, Inc.;
TALBERT MEDICAL
MANAGEMENT COMPANY,
Defendants-Appellees.
No. 99-2076
(D.C. No. CIV-97-1243-BB)
(D. N.M.)
Clerk
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal.
This order and judgment is not binding precedent, except under the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.
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hearing. R., Doc. 64 at 2. Plaintiff did not appear at the show cause hearing and
the district court dismissed his case with prejudice.
District courts are empowered to dismiss an action for discovery violations.
See Archibeque v. Atchison, Topeka & Santa Fe Ry.
Cir. 1995); Fed. R. Civ. P. 37(b)(2)(C). We review the district courts dismissal
for abuse of discretion.
Grubbs , 841 F.2d 1512, 1520 n.6 (10th Cir. 1988) (Because dismissal with
prejudice defeats altogether a litigants right to access to the courts, it should be
used as a weapon of last, rather than first, resort.) (quotations and citation
omitted). In Ehrenhaus , we set forth the following criteria that a district court
should ordinarily consider on the record when employing this drastic measure:
(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
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Archibeque , 70 F.3d
at 1175 (affirming district courts dismissal order which stated the reasons for
dismissal despite courts failure to warn plaintiff of impending dismissal)
(quotation omitted ).
On appeal, plaintiff contends that the trial court abused its discretion by
dismissing his case with prejudice without making a record that it considered all
relevant factors which must be considered prior to a dismissal with prejudice for
noncompliance with discovery. Appellants Opening Br. at 3. Plaintiff argues
that the district court failed to follow
Ehrenhaus .
Ehrenhaus criteria.
Ehrenhaus
See
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at 1521 n.7.
The judgment of the district court is AFFIRMED.
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