F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 1 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
KAREN WILLIAMSON,
Plaintiff-Appellant,
v. No. 03-4066
(D.C. No. 2:98-CV-904-TS)
OWNERS RESORT & EXCHANGE; (D. Utah)
JIM JEWEKES; COLLEEN
FREEMAN; ANIE LNU; SALLY
DUNCAN; ANGIE WILLIAMS;
JUDY ANGHELL; BETTY
CRAWFORD; MICHELE WARD;
ANNIE TRACY; JOSEPH HATCH;
BRAD GILLIES; BEAR LAKE
CONDOMINIUMS; BEAR LAKE
HOMEOWNERS ASSOCIATION;
PRESTON PROPERTIES
TIMESHARE TRAVEL
ASSOCIATION,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before McCONNELL , ANDERSON , and BALDOCK , Circuit Judges.
*
This order and judgment is not binding precedent, except under the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.
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)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Plaintiff Karen Williamson, appearing pro se, appeals from the district
court’s order dismissing her complaint with prejudice for her repeated failure to
attend pretrial hearings, and to comply with the court’s orders and the federal
rules of civil procedure. We affirm.
Plaintiff filed a complaint in December 1998, against Owners’ Resorts &
Exchange, Inc. (ORE), numerous ORE employees, and other defendants. It
appears from the original complaint, which can fairly be described as
incomprehensible, that plaintiff is complaining about the foreclosure of her
timeshare property for failure to make payments. Because the complaint is replete
with incomplete and unintelligible sentences, it is not possible to determine with
any certainty the nature of plaintiff’s allegations or claims. Though plaintiff
listed dozens of federal statutes in the complaint, she does not explain how any of
the listed statutes were allegedly violated, which defendants allegedly violated
which statutes, or how any of the defendants allegedly harmed her.
The ORE defendants filed a motion for more definite statement; two
defendants (the defaulting defendants) failed to enter an appearance. The district
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court granted the motion for more definite statement, ruling that the complaint did
not provide sufficient detail to put the defendants on notice of the claims against
them. See Conley v. Gibson , 355 U.S. 41, 47 (1957) (complaint must provide ‘a
short and plain statement of the claim’ that will give the defendant fair notice of
what the plaintiff’s claim is and the grounds upon which it rest.”) (quoting Fed.
R. Civ. P. 8(a)(2)). The district court ordered plaintiff to file an amended
complaint in compliance with Fed. R. Civ. P. 8(a) within thirty days, which would
have been March 22, 2001. The district court explained the requirements of
Rule 8(a) to plaintiff, and, because it appeared plaintiff was attempting to allege
fraud claims, the court also explained the requirements of Fed. R. Civ. P. 9(b),
which requires that fraud claims be pled with particularity.
Plaintiff failed to file an amended complaint by the deadline. Instead, she
filed a motion for an extension of time “ to [r]espond to [d]efendants inability to
understand their own illegal dba in yet another simple statement.” R. Vol. I ,
Doc. 39, at 1. She also filed a motion to enter default judgment against the
defaulting defendants.
The district court ordered plaintiff to show cause why her complaint should
not be dismissed for failure to prosecute based on her failure to file a timely
amended complaint. Plaintiff filed an unintelligible pleading entitled as a
response to the motion for more definite statement. Six months later, the district
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court ordered the defaulting defendants to show cause why default judgment
should not be entered against them, and set a hearing date. Neither plaintiff nor
the defaulting defendants appeared at this hearing. Six months later, the district
court gave plaintiff one additional month to file an amended complaint, giving a
deadline of May 16, 2002. On May 21, 2002, plaintiff filed a fifty-six-page
pleading, construed as an amended complaint, but did not serve it upon the
defendants. Aplee. Supp. App. at 38-93.
This amended complaint is in large part confusing and incomprehensible
because of its lack of complete sentences, lucidity, or specificity. Plaintiff again
asserted violations of numerous federal statutes and constitutional provisions, but
still failed to allege with any clarity what conduct by which defendants violated
which federal statutes.
The district court ordered plaintiff to serve the defendants within ten days
and set a hearing date for a scheduling conference. Plaintiff failed to attend the
scheduling conference. She did file a motion for sanctions and for entry of
default judgment against the defaulting defendants. The district court denied the
former and set a hearing date on the latter. The district court ruled that it was not
possible to determine the relief sought against the defaulting defendants and
ordered a hearing pursuant to Fed. R. Civ. P. 55(b)(2) to determine the amount of
damages and the truth of any averment in the amended complaint. Further,
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because of plaintiff’s failure to appear at two pretrial hearings, the court ordered
a status conference be held at the same hearing. The district court recited
plaintiff’s repeated failures to comply with court rules and orders and warned
plaintiff that failure to appear at this hearing would be grounds for dismissal of
her complaint without further warning.
Plaintiff did not appear at the hearing. The district court dismissed the
complaint with prejudice based on plaintiff’s failure to appear at pretrial hearings
and her non-compliance with the federal rules of civil procedure and court orders.
The district court considered and addressed the factors required to be considered
before choosing the sanction of dismissal: (1) the amount of actual prejudice to
the opposing party, (2) the amount of interference with the judicial process, (3)
the litigant's culpability, (4) whether the litigant was warned in advance that
dismissal was a likely sanction, and (5) whether a lesser sanction would be
effective. See Ehrenhaus v. Reynolds , 965 F.2d 916, 921 (10th Cir. 1992).
Plaintiff filed a motion for reconsideration, which was denied.
On appeal, plaintiff challenges the dismissal. “A district court undoubtedly
has discretion to sanction a party for failing to prosecute or defend a case, or for
failing to comply with local or federal procedural rules.” Reed v. Bennett ,
312 F.3d 1190, 1195 (10th Cir. 2002); see also Fed. R. Civ. P. 41(b) (stating that
district court may dismiss an action with prejudice if the plaintiff fails “to
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prosecute or to comply with [the Federal Rules of Civil Procedure] or any order
of court.”). We review the district court’s dismissal of plaintiff’s suit under
Rule 41(b) for abuse of discretion. See Mobley v. McCormick , 40 F.3d 337, 340
& n.1 (10th Cir. 1994).
We have reviewed plaintiff’s brief on appeal and the entire record before
the district court. We agree with the district court, for the reasons stated in its
order, that plaintiff’s repeated failure to attend any pretrial hearings or
conferences prejudiced the defendants and substantially interfered with the
judicial process; that she is entirely culpable for her repeated failures to make
herself available to the court; that she received adequate warning that dismissal
was a likely sanction for her continued failure to appear; and that no lesser
sanction would have been effective because, despite the court’s prior efforts,
plaintiff “continue[d] to file incomprehensible pleadings and refuse[d] to make
herself available for hearings necessary to advance this case.” Aplee. Supp. App.
at 102. Contrary to her apparent claim, the record demonstrates that plaintiff had
adequate notice of all of the hearings. Though she now claims to have been
unable to afford the expense of traveling to the hearings, the record does not
demonstrate that she ever raised this argument before the district court or offered
to make herself available by telephone.
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This is not a case in which the plaintiff only failed to appear at a single
pretrial hearing. See Meeker v. Rizley , 324 F.2d 269, 271-72 (10th Cir. 1963)
(reversing dismissal where plaintiff’s only infraction was failure to appear at one
pretrial hearing). Rather, plaintiff repeatedly failed to appear at all of the pretrial
hearings, which interfered with the court’s ability to resolve outstanding motions
and to manage its case load, wasted judicial resources, and caused unnecessary
expense to the ORE defendants. See Jones v. Thompson , 996 F.2d 261, 265 (10th
Cir. 1993) (finding interference with judicial process where 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.”). Although plaintiff is a pro se litigant, she “must follow the same rules
of procedure that govern other litigants.” Green v. Dorrell , 969 F.2d 915, 917
(10th Cir. 1992).
We further conclude that, even liberally construed, both the original and
amended complaint in this case are nearly incomprehensible. See Carpenter v.
Williams , 86 F.3d 1015, 1016 (10th Cir. 1996). Although a pro se litigant’s
filings are held to “less stringent standards than formal pleadings drafted by
lawyers,” Haines v. Kerner , 404 U.S. 519, 520 (1972) (per curiam), they are still
subject to the federal rules of civil and appellate procedure, see Ogden v. San
Juan County , 32 F.3d 452, 455 (10th Cir. 1994). When a complaint is
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incomprehensible and does not provide a “short and plain” statement of the claims
sufficient to give the defendants reasonable and fair notice of the basis of the
claims under Rule 8(a)(2), dismissal is proper where, as here, the district court
has given the plaintiff leave to amend and the successive pleading remains "so
confused, ambiguous, vague, or otherwise unintelligible that its true substance, if
any, is well disguised.” Salahuddin v. Cuomo , 861 F.2d 40, 42 (2d Cir. 1988);
Carpenter , 86 F.3d at 1016.
Plaintiff’s motions to proceed without prepayment of costs or fees and to
file a supplemental appendix are GRANTED. For substantially the reasons stated
by the district court in its order dated January 17, 2003, the judgment of the
district court is AFFIRMED.
Entered for the Court
Michael W. McConnell
Circuit Judge
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