Luo v. Wang

Appellate Case: 22-1403 Document: 010110967857 Date Filed: 12/13/2023 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 13, 2023
_________________________________
Christopher M. Wolpert
Clerk of Court
XINGFEI LUO,

Plaintiff - Appellant,

v. No. 22-1403
(D.C. No. 1:20-CV-02765-RMR-MEH)
PAUL WANG, (D. Colo.)

Defendant - Appellee.

------------------------------

EUGENE VOLOKH,

Intervenor - Appellee.
_________________________________

ORDER AND JUDGMENT*
_________________________________

Before PHILLIPS, KELLY, and McHUGH, Circuit Judges.
_________________________________

Xingfei Luo brought this action against Paul Wang asserting various

defamation-related claims. After a magistrate judge concluded Ms. Luo

“unreasonably refused necessary efforts to conduct discovery and prepare [the] case

*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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for conclusion,” R., Vol. V at 288, and disobeyed the magistrate judge’s order to

answer questions at her deposition, the magistrate judge recommended dismissal of

the action as a sanction. After reviewing Ms. Luo’s objections, the district court

agreed with the recommendation and dismissed the action with prejudice. She

appeals the dismissal and challenges various other orders the district court issued in

the case. We have jurisdiction, see 28 U.S.C. 1291, and we affirm.

BACKGROUND

1. Facts Underlying Ms. Luo’s Third Amended Complaint (TAC)

Ms. Luo alleged that she and Mr. Wang began an intimate relationship during

Mr. Wang’s 2012 visit to China. Mr. Wang returned to the United States and the

couple decided to continue their relationship. In July 2013, Ms. Luo moved to the

United States to live with Mr. Wang in Colorado.

Ms. Luo alleged that in May 2013, while she was still in China, she was

sexually assaulted by a man named Mr. Chen. She reported the assault to Chinese

authorities and Mr. Chen was arrested and prosecuted. The rape charges were still

pending when Ms. Luo traveled to the United States to live with Mr. Wang.

At one point during their time together in Colorado, Mr. Wang purchased a

plane ticket for Ms. Luo to return to China. But Ms. Luo lost her passport, so she did

not take the flight. She reported her lost passport to the Aurora, Colorado police

department. She later located the passport and did not pursue the matter further.

In October 2013, Ms. Luo ended her relationship with Mr. Wang and moved to

California. Years later, in 2020, she learned through a separate lawsuit in California

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that Mr. Wang had made what she alleges were false statements about her.

Specifically, Mr. Wang had allegedly denounced Ms. Luo for (1) falsely accusing

Mr. Chen of sexual assault, (2) filing a false police report that she had lost her

passport, and (3) fraudulently obtaining travel insurance funds based on the lost

passport.

2. Procedural History of this Case

Ms. Luo filed this diversity action in September 2020. She complained that

Mr. Wang had unreasonably disclosed private facts about her and had committed

outrageous conduct, intentional infliction of emotional distress, and defamation

per se.1 Mr. Wang filed a motion to dismiss the TAC. The district court granted the

motion in part, concluding that to the extent Ms. Luo’s claims pertained to allegedly

defamatory statements Mr. Wang had made in the California litigation, those

statements were protected by the absolute litigation privilege. The court also held

that under Colorado law, a defamation claim accrues on the date of publication.

As the case proceeded, a controversy arose concerning Internet posts Ms. Luo

purportedly made from her cell phone. In an unrelated California criminal

proceeding, the Los Angeles County Sheriff’s Department (LASD) had obtained a

forensic image of Ms. Luo’s cell phone. Seeking information to bolster his defense,

1
Ms. Luo initially proceeded under a pseudonym, but the district court later
denied her request to proceed anonymously. We upheld that decision. Luo v. Wang,
71 F.4th 1289, 1303 (10th Cir. 2023).

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Mr. Wang subpoenaed this data from the LASD. Ms. Luo filed motions to quash the

subpoena, but the district court denied them.

On July 12, 2022, after her attorney withdrew from the case, the magistrate

judge ordered Ms. Luo to provide her current contact information. On September 14,

2022, he reiterated that order. Nearly two weeks later, however, the magistrate judge

concluded that Ms. Luo had refused to comply with the order, causing “considerable

inconvenience to the Court.” R., Vol. V at 289.

On August 24, 2022, the magistrate judge held a discovery conference. At the

conference, Mr. Wang’s counsel outlined various court orders that Ms. Luo had

violated, including orders requiring her to provide a financial affidavit, amend her

request for damages, and provide an unredacted letter from a witness. During the

conference, both Mr. Wang’s counsel and the magistrate judge questioned Ms. Luo

on the record. The magistrate judge later characterized her responses as “evasive at

best and deceiving or untrue at worst.” Id.

At the conference, the parties also discussed Ms. Luo’s deposition.

Mr. Wang’s counsel requested an in-person deposition. Ms. Luo did not object to

being deposed in the federal courthouse in Denver. The magistrate judge later

explained that he adopted the “unusual procedure” of taking her deposition at the

courthouse because of Ms. Luo’s “contumacious behavior in this lawsuit.” Id. at 288.

Notwithstanding her lack of objection, Ms. Luo later moved to quash the

subpoena to appear at her deposition. She contended she should only be deposed in

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California, not Colorado. The district court denied the motion to quash, and the

deposition went forward.

During the deposition, Mr. Wang’s counsel asked the magistrate judge to come

into the courtroom to address an issue. He explained that Ms. Luo had refused to

answer questions concerning her travel to the United States, specifically about “the

legal basis for her entry into the United States.” Id. at 290. The magistrate judge

ordered her to answer, but he also advised her of certain legal options she might have

concerning these questions. After the advisement, Ms. Luo declined (1) to invoke

her Fifth Amendment right to refuse to answer or (2) to answer subject to certain

procedural protections the magistrate judge described. The magistrate judge then

advised Ms. Luo that “[i]f she persisted in disobeying my Order to answer the

questions, this could be construed as a contempt of court, and the sanction could

include, without limitation, dismissal of her lawsuit with prejudice.” Id. at 291. She

responded that she understood, but she still refused to answer on grounds of

“relevance.” Id. (internal quotation marks omitted).

The magistrate judge issued a recommendation that the action be dismissed as

a sanction for Ms. Luo’s discovery-related abuses, including and especially her

disobedience of his direct orders to answer questions during her deposition, which he

found constituted direct contempt. Before choosing dismissal as a just sanction, the

magistrate judge analyzed the required factors, see Ehrenhaus v. Reynolds, 965 F.2d

916, 921 (10th Cir. 1992). He concluded that under this analysis “the question [was]

not a close one.” R., Vol. V at 292. He recommended that the action be dismissed

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with prejudice and that Mr. Wang be awarded his reasonable fees and costs related to

the deposition.

The district court accepted and adopted the recommendation, dismissed the

action with prejudice, and ordered that Mr. Wang receive his expenses and fees

associated with Ms. Luo’s deposition. She appealed.

ANALYSIS

1. Standard of Review

Rule 37(b) of the Federal Rules of Civil Procedure authorizes the district court

to sanction a party for failure to cooperate with discovery. We review the district

court’s imposition of sanctions, including dismissal, for an abuse of discretion. See

Ehrenhaus, 965 F.2d at 920. We also review the amount of attorney’s fees awarded

for a discovery violation for an abuse of discretion. Centennial Archaeology, Inc. v.

AECOM, Inc., 688 F.3d 673, 678 (10th Cir. 2012). The district court’s factual

findings are reviewed for clear error. See id.

2. The Procedures Followed in this Case Afforded Ms. Luo Due Process
and the Contempt Finding was not an Abuse of Discretion.

Ms. Luo challenges both the substance and procedure of the contempt finding.

Substantively, she contends the district court erred in concluding that information

about her travels to the United States was relevant. In reaching this conclusion, both

the magistrate judge and the district court cited allegations in the TAC about

Ms. Luo’s international travels in July 2013. See R., Vol. V at 290, 303-04. Ms. Luo

argues this rationale was flawed because she only refused to answer questions

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concerning her travel and immigration status in 2014. She argues throughout her

brief that these questions were irrelevant to the allegations in the TAC about her 2013

travels and interactions with Mr. Wang. See, e.g., Aplt. Opening Br. at 18-19, 25-26.

But that is not the argument she made to the district court. In her objections to

the magistrate judge’s recommendation, Ms. Luo did not present any argument about

the relevance of her travels in 2013 versus her travels in 2014. See Suppl. R., Vol. I

at 331-57. That being the case, she waived the right to appellate review of this

contention. See Luo, 71 F.4th at 1297 (declining, under this court’s “firm waiver

rule,” to reach contentions of error not raised in objections to a magistrate judge’s

order, where the interests of justice did not support making an exception to the rule).

More generally, Ms. Luo challenges the district court’s reliance on her refusal

to answer questions about her travel to the United States. She characterizes these

questions as irrelevant and abusive. But the district court found the questions were

sufficiently relevant to require her to answer them. Notably, this case presents issues

concerning Mr. Wang’s invitation to Ms. Luo to come to the United States, her

failure to leave the country after Mr. Wang bought her a plane ticket, her alleged

police report concerning the loss of her passport, and her alleged filing of a

fraudulent travel insurance claim on the ticket Ms. Wang bought for her. As the

district court determined, the allegations of Ms. Luo’s complaint “relate to her travels

to and in the United States.” R., Vol. V at 304. This distinguishes cases she cites, in

which parties sought information concerning immigration status that lacked relevance

to a claim or defense or that would prejudice the plaintiff’s assertion of statutory

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rights. In addition, the magistrate judge offered Ms. Luo procedures she could follow

to protect her rights in connection with the questions, but she declined to pursue

those procedures.

Turning to her procedural challenge, Ms. Luo argues that by statute, a

magistrate judge who is not exercising consent jurisdiction must refer contempt

charges to a district court judge for determination. See Aplt. Opening Br. at 19

(citing 28 U.S.C. § 636(e)(6)(B)(iii)).2 Giving her arguments a liberal construction,

she contends that the district court’s failure to follow that procedure here both

violated the statute and denied her procedural due process, because she did not

receive notice or an opportunity to respond and the district court did not hold a

hearing.3

The district court addressed and rejected her procedurally based argument in

its order. The court explained that the magistrate judge’s recommendation fully laid

2
This statutory section provides that in cases of civil contempt, a magistrate
judge “shall forthwith certify the facts to a district judge and may serve or cause to be
served, upon [the purported contemnor], an order requiring such person to appear
before a district judge upon a day certain to show cause why that person should not
be adjudged in contempt by reason of the facts so certified.”
3
Ms. Luo also argues that the magistrate judge deprived her of her right to due
process by ordering her to answer questions about her immigration status without
first giving her notice and an “opportunity to conduct legal research and cite legal
authorities” concerning the issue. Aplt. Opening Br. at 19. She fails to show that
due process required this form of advance notice. As the district court noted, the
magistrate judge thoroughly advised her of the consequences of failing to answer the
questions. He also provided her with options to protect herself in connection with
her answers, which she rejected.

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out the facts regarding Ms. Luo’s failure to answer questions at her depositions, and

she did not deny in her objections that she refused to answer questions posed to her.

Because there was no dispute regarding the facts of what took place, the district court

found a hearing was unnecessary, and it agreed with the magistrate judge on de novo

review that the facts demonstrated Ms. Luo committed a civil contempt. The district

court also found she received adequate notice and an opportunity to respond to the

possibility of being sanctioned for contempt because the magistrate judge thoroughly

advised her of the consequences of declining to answer at her deposition, she

received notice of the district court’s consideration of the contempt issue through the

recommendation, and she had an opportunity to brief the issue through her

objections. See R., Vol. V at 306-07.

On appeal, Ms. Luo challenges the district court’s determination that there

was no dispute concerning the facts because she argues she “raised multiple

misstatements of facts by the magistrate [judge].” Aplt. Opening Br. at 22. Although

she did raise some factual disputes in her objections to the magistrate judge’s

recommendation, see Suppl. R., Vol. I at 332-35, most of these disputes did not

concern the events of her direct contempt. Instead, she disputed the magistrate

judge’s findings concerning her prior history of evasion or disobedience of the

court’s orders. Ms. Luo fails to show the procedures described in § 636(e)(6)(B)(iii)

entitled her to an evidentiary hearing concerning those facts, which could have

resulted in sanctions, including dismissal, even absent a finding of direct contempt.

See Fed. R. Civ. P. 37(b)(2)(A)(v). And to the extent any of the factual disputes she

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raised might arguably relate to her direct contempt, our review confirms that the

failure to conduct an evidentiary hearing on those issues was harmless. Although she

continues to complain the district court did not follow the procedures set out in

§ 636, she fails to rebut the district court’s conclusion that she was given notice and

an opportunity to be heard on the contempt issue. See Aplt. Opening Br. at 22.

Likewise, we discern no reversible error in the district court’s conclusion that

Ms. Luo committed a civil contempt at her deposition.

3. The District Court did not Abuse its Discretion in Imposing Dismissal
with Prejudice as a Sanction.

Dismissal is available as a sanction in cases of “willfulness, bad faith, or some

fault of [the party].” Chavez v. City of Albuquerque, 402 F.3d 1039, 1044 (10th Cir.

2005) (emphasis added). The district court can therefore impose dismissal when

a party willfully disobeys orders. Kellogg v. Watts Guerra LLP, 41 F.4th 1246,

1265-66 (10th Cir. 2022), cert. denied, 143 S. Ct. 1022 (2023). Before imposing

dismissal as a sanction, however, a district court should ordinarily evaluate “(1) the

degree of actual prejudice to the [other party]; (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 sanctions.” HCG Platinum, LLC v.

Preferred Prod. Placement Corp., 873 F.3d 1191, 1203 (10th Cir. 2017) (internal

quotation marks omitted).

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The magistrate judge analyzed these factors, and the district court adopted his

analysis. Having reviewed Ms. Luo’s challenges to the district court’s reasoning, we

conclude she fails to show the court abused its discretion in dismissing the action as a

sanction for her discovery violations. See Ehrenhaus, 965 F.2d at 918 (“[I]f, after

considering all the relevant factors, [the district court] concludes that dismissal alone

would satisfy the interests of justice,” the court has not abused its discretion.).

4. The District Court had Authority to Award Expenses and Fees for the
Entire Deposition.

The district court awarded Mr. Wang “his reasonable fees and costs associated

with arranging, preparing for, and attending the deposition” of Ms. Luo. R., Vol. V

at 293; see also id. at 310. She argues that under Rule 37, the district court could

only award those fees caused by her discovery violation that were necessary to

reimburse Mr. Wang. Aplt. Opening Br. at 34-35. She contends it was unfair to

require her to pay for his expenses and fees for the entire deposition because

Mr. Wang would have incurred the costs of taking her deposition even if she had not

refused to answer the travel-related questions.

Ms. Luo’s misconduct occurred during and in relation to the proceeding for

which she was sanctioned: a deposition at which she refused to answer questions.

The court limited its award to Mr. Wang’s actual expenses associated with that

proceeding. The only question is whether the district court was further obligated to

determine what portion of the fees and costs of the deposition—discovery that had

been rendered entirely useless because Ms. Luo’s misconduct resulted in the

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dismissal of her action—were attributable to Ms. Luo’s misconduct. Although she

cites cases generally requiring a nexus between noncompliance with the rules and the

amount of fees and costs awarded, Ms. Luo fails to show the district court abused its

discretion in this instance by awarding Mr. Wang his entire fees and costs related to

the deposition. We therefore affirm the award.

CONCLUSION

We affirm the district court’s order dismissing this case with prejudice and

awarding Mr. Wang his expenses and fees for the September 22, 2022, deposition.

Our affirmance moots several of Ms. Luo’s challenges to the district court’s

interlocutory decisions, and we need not address them.4 We grant her motion to

proceed without prepayment of fees and costs.

Entered for the Court

Paul J. Kelly, Jr.
Circuit Judge

4
Among these issues are whether the district court erred in (1) denying her
motion to quash the subpoena directed to the LASD; (2) denying her motion to quash
the subpoena to testify at her deposition; (3) granting Mr. Wang’s motion to dismiss
one of Ms. Luo’s claims based on litigation privilege; and (4) granting Mr. Wang’s
motion to dismiss based on the initial date of publication.

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