UNITED STATES COURT OF APPEALS
Filed 3/18/96
FOR THE TENTH CIRCUIT
_______________
ROY W. COWINS, )
)
Plaintiff-Appellant, )
) No. 95-7044
v. ) (D.C. No. CV-94-610)
) (E.D. Oklahoma)
DEPARTMENT OF VETERAN AFFAIRS; )
JESSE BROWN, Secretary; JOE )
SMITH, )
)
Defendants-Appellees. )
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ORDER AND JUDGMENT1
________________
Before PORFILIO, MCKAY, and KELLY, Circuit Judges.
_______________
After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially
assist the determination of this appeal. See Fed. R. App. P. 34(a);
10th Cir. R. 34.1.9. The cause is therefore ordered submitted
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This order and judgment is not binding precedent, except under the doctrines of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 the court’s General Order filed November 29, 1993. 151 F.R.D. 470.
without oral argument.
This is an appeal from an order dismissing plaintiff’s civil
rights complaint because his counsel did not attend a pre-trial
status and scheduling conference. According to the record before
us, the court set the conference for December 22, 1994. On
December 21, 1994, plaintiff’s counsel filed a motion for
continuance in which counsel stated a death had occurred in his
“immediate family” and that he had to fly to Greenville, South
Carolina, for a funeral scheduled at 2:00 PM that day. The motion
was accompanied by counsel’s statement made under 28 U.S.C. § 1764
(unsworn statements made under penalty of perjury). The statement
recited and verified the facts asserted in the motion. Also
included in the filing was a statement of counsel advising the
court although formal service had not been obtained on the
defendant government parties, a copy of the motion and the
advisory were served on the United States Attorney.
On the following day, a minute order was entered dismissing
the case for the failure of “plaintiff’s counsel to appear at
Status & Scheduling conference.” Plaintiff’s counsel moved for
reconsideration restating the grounds upon which the motion for
continuance had been filed and asking for reinstatement of the
cause. A subsequent minute order was entered denying the motion
for reconsideration because “plaintiff made no effort to prove the
matter, and, not only did he not appear at the Status & Scheduling
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Conference but he did not retain local counsel as required by
Local Rule 4 (h).” The court also noted service had not been
accomplished “within the last six weeks.” This appeal followed.
We judge the dismissal of a case following non-appearance of
counsel by an abuse of discretion standard. Ikerd v. Lacy, 852
F.2d 1256, 1258 (10th Cir. 1988). As we noted in Ikerd, sanction
of counsel for failure to obey a scheduling order is provided in
Fed. R. Civ. P. 16(f). Id. Nonetheless, the sanction should be
appropriate to the offense. Here counsel informed the court of
the family emergency with which he was faced and did so under the
penalty of perjury. Nothing in the record indicates his
assertions were untrue, that he filed the motions purely for the
purpose of delay, or that anyone was prejudiced by his conduct.
Moreover, it appears the government was put on notice, but did not
appear to stake out a position in the case. Under these
circumstances, the failure of service to the contrary
notwithstanding, we believe the sanction was not in keeping with
whatever offense was committed by counsel and that the dismissal
of the case was an abuse of discretion.
The judgment of the district court is REVERSED and the cause
REMANDED with instructions to reinstate the complaint.
Entered for the Court
John C. Porfilio
Circuit Judge
3