F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 16 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
MALTA JEFFRIES,
Plaintiff-Appellant,
No. 03-5202
v. (D.C. No 02-CV-924-EA)
PROPACK, INC., an Oklahoma
corporation; GRAEBEL/
OKLAHOMA MOVERS, INC., an
Oklahoma corporation,
Defendants-Appellees.
ORDER
Before LUCERO , McKAY , and PORFILIO , Circuit Judges.
This matter is before the court for consideration of dismissal in light of
appellant’s noncompliance with procedural obligations, particularly those relating
to timely briefing. For the reasons explained below, we dismiss the appeal.
Appellant, represented by counsel throughout the proceedings, has ignored
routine obligations in prosecuting this appeal and has responded in an inadequate
and dilatory manner after being admonished to cure various deficiencies. At the
outset, appellant failed to file a transcript order form or statement that a transcript
was not necessary, Fed. R. App. P. 10(b); 10th Cir. R. 10.1(A)(2), a prerequisite
to initiating the briefing schedule, Fed. R. App. P. 31; 10th Cir. R. 11.1 &
31.1(A)(1). It took a deficiency notice from the clerk to prompt appellant to
complete this first step.
Appellant showed considerably more dereliction regarding her ensuing
briefing obligations. A week after the deadline had passed for filing her opening
brief and appendix, with neither these materials nor a motion for extension of
time appearing, the clerk sent appellant a letter noting the noncompliance and
warning that the appeal would be subject to dismissal without further notice if the
omission was not cured within ten calendar days. In the meantime, one of the
appellees moved to dismiss for lack of a timely brief. See Fed. R. App. P. 31(c)
(“If an appellant fails to file a brief within the time provided by this rule, or
within an extended time, an appellee may move to dismiss the appeal.”).
Despite the clerk’s warning and opposing counsel’s motion, appellant did
not file her brief or move for an extension of time in the period prescribed. A
few days later, the clerk issued an order reserving the question of dismissal to the
panel selected to hear the appeal. Appellant then promptly submitted a brief and
appendix, but due to a long list of deficiencies, these were not accepted for filing.
Two short extensions of time followed. Only after the expiration of the second
did appellant finally file a corrected opening brief.
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This court is authorized to address appellant’s noncompliance with her
procedural obligations “as it considers appropriate, including [by] dismissing the
appeal.” Fed. R. App. P. 3(a)(2). This case reflects a patent persistent inattention
to clearly delineated routine requirements, for which the only excuse offered has
been inexperience with the appellate process. The court expects counsel to read
and follow the rules–indeed, we expect this of parties proceeding pro se, Nielsen
v. Price , 17 F.3d 1276, 1277 (10 th Cir. 1994)–and litigants are accountable for
the acts and omissions of their counsel. Pioneer Inv. Servs. Co. v. Brunswick
Assocs. Ltd. P’ship , 507 U.S. 380, 396 (1993). Accordingly, we deem it an
appropriate exercise of our discretion to dismiss this appeal. See Nielsen , 17 F.3d
at 1277 (affirming district court’s discretionary dismissal of bankruptcy appeal for
comparable conduct).
The appeal is DISMISSED.
Entered for the Court
PATRICK FISHER, Clerk
By:
Deputy Clerk
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