                                                                    F I L E D
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                                     PU BL ISH
                                                                    August 10, 2007
                   UNITED STATES COURT O F APPEALS               Elisabeth A. Shumaker
                                                                     Clerk of Court
                               TENTH CIRCUIT



 ECCLESIA STES 9:10-11-12, IN C.,

           Plaintiff - Appellant,


        and

 D ELO REA N MA N U FA CTU RING
 C OM PA N Y ; C RISTIN A
 CO RPORA TION ; JOH N Z.
 D ELO REA N ,                                        No. 05-4192

           Plaintiffs,

 v.

 LM C HOLDING COM PANY; LM C
 OPERATING CORPORATION; LM C
 TEN A N T C OR PO RA TIO N ; PAUL
 W ALLACE; LAWRENCE LOPATER,

           Defendants - Appellees.



                 Appeal from the U nited States District Court
                           for the District of Utah
                            (No. 1:95-CV-3-TS)


Reid Lambert, W oodbury & Kesler, Salt Lake City, UT, (Edgar Boles, M oriarty &
Jaros, PLL, Pepper Pike, Ohio, with him on the brief), for Plaintiff-Appellant.

Christopher Johnson, Kasowitz, Benson, Torres & Friedman, LLP, New York
City, NY, (W ayne G. Petty, M oyle & Draper, Salt Lake City, UT, with him on the
briefs), for Defendants–Appellees.
Before BR ISC OE, HOL LOW AY, and HO LM ES, Circuit Judges.


HO LM ES, Circuit Judge.


      This appeal challenges the district court’s decision to dismiss this action

with prejudice for failure to prosecute pursuant to Fed. R. Civ. P. 41(b). The

district court dismissed this case, which originally was commenced in 1995, as a

sanction for the alleged discovery-related dilatoriness of appellant Ecclesiastes

9:10-11-12, Inc. (“Ecclesiastes”). This delay allegedly precluded the parties from

preserving the deposition testimony of John Z. DeLorean prior to his death. A t

times material to the dismissal, DeLorean was Ecclesiastes’s sole director, its

corporate designee pursuant to Fed. R. Civ. P. 30(b)(6), and Ecclesiastes’s only

witness with first-hand knowledge of the factual underpinnings of the litigation.

      W e hold that the district court did not abuse its discretion in granting

defendants’ motion for dismissal pursuant to Rule 41(b). Thus, we AFFIRM the

district court’s judgment.

I.    B ACKGR OU N D

      A.     Asset Purchase Agreement

      On December 2, 1992, DeLorean and three corporations he directly and

indirectly controlled, Logan M anufacturing Company (“Logan”), 1 DeLorean

1
      After the execution of the APA, Logan changed its name to Ecclesiastes.
                                                                  (continued...)

                                         -2-
M anufacturing Company (“DeLorean M anufacturing”), and Cristina Corp.

(“Cristina”) (collectively “plaintiffs”), entered into an asset purchase agreement

(“APA”) with LM C Holding Co. (“LM C Holding”) for the sale of plaintiffs’

snow-grooming equipment business. 2 Paul W allace specifically formed LM C

Holding to acquire plaintiffs’ assets. DeLorean and W allace negotiated the terms

of the APA.

      Pursuant to the APA , LM C Holding was to pay a purchase price of

$12,750,000, subject to certain closing and post-closing “adjustments” (the

“purchase-price adjustments”). The APA placed responsibility on plaintiffs for

producing the necessary financial documentation to calculate the purchase-price

adjustments. This included audited financial statements for the fiscal year that

ended on November 30, 1992. Because closing took place after December 1,

1992, plaintiffs also were responsible for furnishing the following documents

within 77 days of closing: (1) a balance sheet, a statement of operations, retained

earnings and cash-flow statements, and inventory assessments for the new fiscal

year through the closing date (“closing-date documentation”); (2) a report from

plaintiffs’ independent accountant, KPM G Peat M arwick (“KPM G”), containing



1
 (...continued)
W e use the name Ecclesiastes throughout this opinion to refer to this corporate
entity, both before and after its name change.
2
      DeLorean was the sole shareholder of Cristina, which was the sole
shareholder of DeLorean M anufacturing, which was the sole shareholder of
Ecclesiastes.

                                         -3-
the results of its audit of this closing-date documentation; and (3) plaintiffs’

computation of the purchase-price adjustments based upon the audited closing-

date documentation. Thereafter, the parties would make arrangements for the

transaction’s final payment.

      DeLorean was plaintiffs’ sole representative at the January 5, 1993 closing.

At closing, plaintiffs transferred their assets to LM C Holding, which, in response,

paid plaintiffs $4,900,000 in cash, provided them w ith a promissory note for

$850,000, and transferred to an escrow agent other notes and shares of preferred

stock. Seventy-seven days later, however, plaintiffs did not deliver to defendants

the closing-date documentation and their related calculation of the purchase-price

adjustments, as contemplated by the APA.

      The closing-date documentation was never completed. Nevertheless,

DeLorean apparently attempted to negotiate the purchase-price adjustments w ith

defendants, offering a variety of seemingly contradictory methodologies and

calculations to conclude the agreement. Ultimately, defendants tendered no

additional payment.

      B.     Pleadings

      In January 1995, Ecclesiastes filed a complaint against LM C Holding and

W allace. On M arch 24, 1995, an amended complaint was filed, and DeLorean,

DeLorean M anufacturing, and Cristina were added as plaintiffs. The amended

complaint named LM C H olding, LM C O perating Corporation (“LM C



                                          -4-
Operating”), 3 LM C Tenant Corporation (“LM C Tenant”), 4 Lawrence Lopater, 5 and

W allace as defendants (collectively “defendants”). A second amended complaint

was filed on December 15, 1995.

      Plaintiffs brought claims for, inter alia, breach of contract, comm on law

fraud, fraud-in-the-inducement, securities fraud, and violations of the Racketeer

Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq.

Plaintiffs alleged that W allace perpetrated a fraudulent scheme to induce

DeLorean to enter into the APA . According to plaintiffs, defendants further

perpetrated this scheme after the January 5, 1993 closing by impermissibly

dissipating Ecclesiastes’s assets to avoid satisfying defendants’ financial

obligations to plaintiffs, by demanding fraudulent offsets to the balance of the

purchase price, and by preventing plaintiffs from accessing the business premises

and the requisite records to calculate the purchase-price adjustments.

      Plaintiffs’ claims placed DeLorean at the center of the litigation.

A ccording to the second amended complaint, DeLorean negotiated the APA,

misunderstood the terms of this purposefully “ambiguous and confusing” contract,


3
      LM C Operating is a wholly-owned subsidiary of LM C Holding; it was
formed to assume ow nership of and to operate the manufacturing business
purchased by LM C Holding.
4
      LM C Tenant Corporation is a wholly-owned subsidiary of LM C Holding; it
was formed to lease the real property of the manufacturing business purchased by
LM C Holding and then to sublease the real property to LM C Operating.
5
      Lopater w as an officer of LM C Holding, LM C Operating, and LM C Tenant.


                                         -5-
was misled by the methodology for calculating the purchase-price adjustments,

and personally participated in the “purported closing.” App. at 40, 47.

         In response, defendants filed an array of counterclaims, including claims

for breach of contract, fraud-in-the-inducement, and negligent misrepresentation.

Defendants asserted that DeLorean made several fraudulent representations to

induce them to enter into the APA. Defendants specifically alleged the following:

after closing, defendants discovered that Ecclesiastes’s inventory of machines,

parts, and supplies was both inadequate and obsolete; plaintiffs inflated the sales

and revenue figures; Ecclesiastes’s machines yielded significant undisclosed

warranty liabilities due to defective design; and plaintiffs failed to make

contributions to Ecclesiastes’s pension plan and never discontinued its pension

plan.

         C.    Discovery

         DeLorean declared personal bankruptcy in September 1999.

A pproxim ately seven months later, LM C Operating filed for bankruptcy. On

February 26, 2001, following these bankruptcy filings, the district court

administratively closed the action. Little discovery had been completed at that

point.

         On N ovember 4, 2002, plaintiffs moved to re-open the case and to dismiss

the bankrupt parties. Plaintiffs filed a memorandum in support of this motion on

July 10, 2003. On September 15, 2003, defendants filed a Rule 41(b) motion to



                                           -6-
dismiss the action for failure to prosecute, arguing that plaintiffs inexcusably

failed both to advance the litigation in the years prior to the administrative

closure of the action and to proceed against the remaining defendants while the

case against LM C Operating w as stayed in accordance with bankruptcy law. O n

M arch 10, 2004, the district court granted plaintiffs’ motion to re-open the case

and to dismiss the bankrupt parties, including DeLorean. Despite denying

defendants’ motion to dismiss the action pursuant to Rule 41(b), the district court

warned that sanctions may be appropriate upon proof of the loss of evidence, and

orally directed the parties “to proceed in this case with all dispatch.” App. at

1106.

        On M arch 19, 2004, defendants served Ecclesiastes with a notice of

deposition pursuant to Fed. R. Civ. P. 30(b)(6). The Rule 30(b)(6) notice

identified April 20, 2004 as the date for the deposition of Ecclesiastes’s corporate

designee. Defendants sought to depose Ecclesiastes’s corporate designee on a

number of issues, including: the negotiation, content, execution, and performance

of the A PA; the preparation, accuracy, and GAAP-conformity of Ecclesiastes’s

financial statements between January 1, 1990 and January 5, 1995;

communications between Ecclesiastes and Ecclesiastes’s auditors/accountants

between January 1, 1992 and the date of the deposition; the calculation of the

purchase price; and the allegations in plaintiffs’ second amended complaint and

defendants’ counterclaims. By the time defendants served their Rule 30(b)(6)



                                          -7-
notice, ownership of Ecclesiastes had moved from DeLorean to his brother,

Charles DeLorean, a creditor who acquired the interest in partial satisfaction of

unpaid debts.

      Shortly before the scheduled deposition, Ecclesiastes’s counsel, Edgar

B oles, asked defendants’ counsel, Christopher Johnson, for a postponement. On

M ay 6, 2004, defendants continued the deposition without scheduling a new date.

Then, in a July 26, 2004 letter, Boles tendered three individuals for depositions,

DeLorean and two former employees of Ecclesiastes, Bryce Patterson and M el

M itchell. Boles did not expressly indicate whether the three were being

designated as Rule 30(b)(6) deponents. The district court interpreted the July 26,

2004 letter as effecting the Rule 30(b)(6) designation of the three. In any event,

in an October 15, 2004 letter, Boles left no room for doubt that the three w ere

being provided “in response” to defendants’ Rule 30(b)(6) notice. 6 App. at 546.


6
       At best, the record as a whole is ambiguous concerning whether
Ecclesiastes intended for its July 26 letter to be a designation under Rule
30(b)(6), and whether defendants interpreted it as such. During oral argument,
Ecclesiastes indicated that, in conversations with the defendants, it had put
DeLorean forward as a Rule 30(b)(6) designee as early as April 2004 – that is,
approximately one month after service of the Rule 30(b)(6) notice. W e have
found nothing in the record to support that assertion and, consequently, do not
rely upon it. Ultimately, we need not determine whether there is sufficient
evidence in the record to support the district court’s finding that July 26, 2004, as
opposed to October 15, 2004, marked the date of Ecclesiastes’s Rule 30(b)(6)
designation. W hether the correct date is July 26, 2004 or O ctober 15, 2004, it
remains true that: (1) despite being under the district court’s directive to act with
“all dispatch,” Ecclesiastes delayed for at least four months before making Rule
30(b)(6) designations; and (2) after allowing over eight months to elapse from the
time defendants initially served it with their Rule 30(b)(6) notice, Ecclesiastes
                                                                        (continued...)

                                         -8-
      Between October 2004 and December 2, 2004, the parties engaged in

discussions concerning the scheduling of depositions. The parties agreed to

propose and confirm discovery dates prior to noticing depositions, due in part to

the geographical distance between the parties and their respective counsel.

Johnson sought without objection to depose DeLorean both in his personal and

Rule 30(b)(6) capacities. Johnson sent approximately ten separate letters to Boles

requesting that plaintiffs identify dates for the taking of depositions of

Ecclesiastes’s corporate designees, including DeLorean. Boles delayed in

responding to defendants’ requests, due in part to his absence from work for a

family medical matter. On the three occasions when Boles did respond in writing,

he never confirmed an exact date for D eLorean’s deposition testimony.

      D efendants took additional steps to secure DeLorean’s testimony. On

October 28, 2004, defendants moved to transfer venue to the United States

District Court for the Southern District of New York. Defendants requested the

change in venue to ensure that, if necessary, they could subpoena D eLorean’s

presence at trial pursuant to Fed. R. Civ. P. 45(b)(2). Defendants labeled

DeLorean as “probably the single most critical witness in this case.” App. at 403.

      On November 8, 2004, Boles withdrew Ecclesiastes’s designation of two of

its Rule 30(b)(6) deponents, Peterson and M itchell, asserting that as former


6
 (...continued)
inexplicably withdrew its most logical – indeed, irreplaceable – Rule 30(b)(6)
witness, DeLorean. As discussed further below, it is factors such as these that
control the resolution of this appeal.

                                          -9-
employees they could not serve as designees. On December 2, 2004, one day

after receiving Johnson’s tenth letter requesting a date for DeLorean’s R ule

30(b)(6) deposition, Boles withdrew DeLorean’s name, stating that he “cannot

formally designate any witness under Rule 30(b)(6) or otherwise for, among other

reasons, all such persons are third-party witnesses . . . . [and] none are under the

direction and control of my client.” App. at 585.

      Defendants quickly filed a motion to compel and requested the costs of the

motion as a sanction. Opposing defendants’ motion to compel, Ecclesiastes

argued that potential Rule 30(b)(6) witnesses “could not be compelled to appear

and indeed, could not be ‘designated[]’ [because] [a]ll were third parties who

were former employees.” App. at 707. In contrast to this representation, Boles

filed an affidavit stating that DeLorean is the “only remaining officer or director”

of Ecclesiastes, and, as Ecclesiastes’s sole representative at the time of the A PA’s

execution, the only witness who could testify as to some of the subject areas in

defendants’ Rule 30(b)(6) notice. App. at 724.

      On January 25, 2005, the district court held a hearing on the motion to

transfer venue. Ecclesiastes’s local counsel, Reid Lambert, agreed that DeLorean

was vital to plaintiffs’ claims, stating: “[A ]s counsel accurately points out, M r.

DeLorean is essential to our case. It would be silly to think we could put on our

case without him.” App. at 1046. In addition, Lambert represented that because




                                          -10-
DeLorean was still a corporate officer of Ecclesiastes, the district court would

possess the authority to command his appearance at a trial in Utah:

               M r. DeLorean is still affiliated with Ecclesiastes. I suppose it
               would be practicable for this Court under those circumstances
               to direct Ecclesiastes to default if they didn’t produce him . . .
               .
                      ....
                      You know, I guess what I’m suggesting is this . . . . I
               think in this case it is practical for this Court to say M r.
               DeLorean is an officer of your company, if you don’t produce
               him— you know , you are the company, you are the officers,
               you’re the director, I guess you would say, if you don’t
               produce him, I’m going to default you.

App. at 1044-45 (emphasis added).

      The district court found that DeLorean’s presence at trial was “absolutely

essential[],” but held its ruling on the motion to transfer in abeyance pending

consideration of whether DeLorean’s presence could be guaranteed. App. at

1049, 1052-53. On February 3, 2005, Ecclesiastes filed a statement with the

district court agreeing that if DeLorean “fails to appear in person as a witness at

trial, absent compelling health-related reasons satisfactory to the Court, the C ourt

may dismiss Ecclesiastes’ claims w ith prejudice.” A pp. at 796. Defendants

objected to this statement, contending that Ecclesiastes knew of D eLorean’s

advanced age and poor health for several years and should therefore “bear any

and all risks if M r. DeLorean is unable to attend the trial for w hatever reason.”

App. at 801.




                                           -11-
      On M arch 19, 2005, DeLorean died. Defendants renewed their Rule 41(b)

motion to dismiss for failure to prosecute and advised the district court that their

pending motion to transfer venue was moot. The district court admonished

Ecclesiastes’s counsel to take the motion “serious[ly].” App. at 982. On M ay 24,

2005, following oral argument, the district court granted defendants’ motion and

dismissed the entire action with prejudice as to all plaintiffs. This ruling was

later embodied in a w ritten order, dated June 15, 2005. The district court

acknowledged that dismissal should be a measure of last resort, but reasoned that

the five-factor test of Ehrenhaus v. Reynolds, 965 F.2d 916 (10th Cir. 1992),

mandated this outcome. Only Ecclesiastes appeals the judgment.

II.   D ISC USSIO N

      This Court has jurisdiction under 28 U.S.C. § 1291 to review the district

court’s order of dismissal pursuant to Rule 41(b). Ecclesiastes asserts that the

district court erred in two ways. First, Ecclesiastes argues that the district court

wrongly applied Rule 41(b) to a discovery dispute that falls exclusively within the

ambit of Fed. R. Civ. P. 37. Second, Ecclesiastes argues that, even if Rule 41(b)

is applicable, the district court failed to apply correctly the factors for involuntary

dismissal.




                                         -12-
A.    Applicability of Rule 41(b)

      Ecclesiastes argues that the district court comm itted a fundamental error by

using Rule 41(b) to dismiss the action under a failure-to-prosecute theory.

Relying upon Societe Internationale Pour Participations Industrielles Et

Com merciales, S.A. v. Rogers, 357 U.S. 197, 207 (1958), Ecclesiastes contends

that, due to the extreme consequences of dismissal, disputes regarding the

production of discovery must be exclusively resolved under Rule 37. Because

Ecclesiastes never violated an order “to provide or permit discovery” within the

meaning of Rule 37(b)(2), 7 it reasons that the district court lacked authorization to

dismiss the action. 8
7
      In pertinent part, Rule 37(b)(2) reads as follows:

      If a party or an officer, director, or managing agent of a party or a
      person designated under Rule 30(b)(6) or 31(a) to testify on behalf of
      a party fails to obey an order to provide or permit discovery . . . the
      court in w hich the action is pending may make such orders in regard
      to the failure as are just, and among others the following:
             ....

      (C) An order . . . dismissing the action or proceeding, or any part
      thereof, or rendering a judgment by default against the disobedient
      party[.]

Fed. R. Civ. P. 37(b)(2) (emphasis added).

8
       Inherent in Ecclesiastes’s argument is the contention that the district court
should have resolved defendants’ arguments under the framew ork of Rule 37(a),
which permits a motion to compel upon a failure “to make a designation under
Rule 30(b)(6),” and which prescribes the sanction of reasonable expenses, but not
dismissal, upon the granting of a Rule 37(a) motion. Fed. R. Civ. P. 37(a)(2)(B),
(a)(4); see, e.g., Aplt. Reply Br. at 2-3 (“Ecclesiastes contends that the entire
issue . . . should have been addressed as a discovery dispute pursuant to Fed. R.
                                                                         (continued...)

                                         -13-
      In response, defendants argue that Ecclesiastes forfeited this argument by

failing to raise it before the trial court. W e agree.

      An issue is preserved for appeal if a party alerts the district court to the

issue and seeks a ruling. See, e.g., Century 21 Real Estate Corp. v. M eraj Int’l

Inv. Corp., 315 F.3d 1271, 1278 (10th Cir. 2003). This Court will not consider a

new theory advanced for the first time as an appellate issue, even a theory that is

related to one that was presented to the district court. See, e.g., Hiner v. Deere &

Co., 340 F.3d 1190, 1196 (10th Cir. 2003).        Nor does the “vague and ambiguous”

presentation of a theory before the trial court preserve that theory as an appellate

issue. Okland Oil Co. v. Conoco, Inc., 144 F.3d 1308, 1314 n.4 (10th Cir. 1998);

see Tele-Communications, Inc. v. Comm’r of Internal Revenue, 104 F.3d 1229,

1233 (10th C ir. 1997) (“[T]o preserve the integrity of the appellate structure, w e

should not be considered a ‘second shot’ forum . . . where secondary, back-up

theories may be mounted for the first time.”).

      Ecclesiastes did not preserve this issue for appeal. Although Ecclesiastes

claims that the question of “whether the case should be dismissed under Rule

41(b) . . . was the w hole focus of the matter in the district court,” A plt. Reply Br.

at 15, there is a palpable distinction between challenging the correctness of the

district court’s Rule 41(b) analysis and challenging the applicability of Rule 41(b)

itself. Cf. Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 721-22 (10th Cir.
8
 (...continued)
Civ. P. 37. Since the sanction of dismissal would not have been available
thereunder, dismissal was inappropriate and the matter should be reversed.”).

                                           -14-
1993) (raising of related theory before district court insufficient to preserve issue

for appeal). The district court never addressed the latter issue – i.e., the

applicability vel non of Rule 41(b) – in its M ay 24, 2005 ruling or in its June 20,

2005 opinion. Ecclesiastes’s appellate briefs, moreover, do not identify a place in

the record where Ecclesiastes or any other plaintiff argued that Rule 41(b) is

inapposite. See 10th Cir. R. 28.2(C)(2) (“For each issue raised on appeal, all

briefs must cite the precise reference in the record where the issue was raised and

ruled on.”); see also State Ins. Fund v. Ace Transp. Inc., 195 F.3d 561, 565 n.3

(10th Cir. 1999) (refusing to consider argument when appellant fails to show

where in record issue w as raised and resolved).

      Ecclesiastes conceded at oral argument that this issue was not raised with

specificity before the district court. Ecclesiastes nonetheless identified pages in

the record where this contention allegedly was raised by implication. See App. at

878, 1007-08, 1016-17. Our review of those pages, however, fails to confirm

Ecclesiastes’s representation. For the most part, Ecclesiastes simply argued that

it was improper for the district court to dismiss plaintiffs’ action on any ground

other than the substantive merits. E.g., id. at 1016-17 (“[I]f the case is going to

be dismissed because John D eLorean died, it ought to be dismissed because

substantively the case can’t be proven without M r. D eLorean present.”).

       Ecclesiastes also invoked at oral argument the “plain error” doctrine. Yet,

this doctrine provides no aid. Although the “plain error” doctrine is typically



                                          -15-
applied in the civil context to address trial-related errors, see Fed. R. Civ. P.

51(d)(2) and Fed. R. Evid. 103(d), we have performed a plain-error analysis in

civil litigation to address alleged pre-trial errors. See Employers Reinsurance

Corp. v. M id-Continent Cas. Co., 358 F.3d 757, 769-70 (10th Cir. 2004)

(applying “plain error” analysis to alleged error in resolution of summary

judgment motions).

      However, like the plaintiff in Employers Reinsurance Corp., Ecclesiastes

has failed in seeking plain-error review to carry its “nearly insurmountable

burden.” Quigley v. Rosenthal, 327 F.3d 1044, 1063 (10th Cir. 2003) (internal

quotation marks omitted). The use of the failure-to-prosecute component of Rule

41(b), rather than Rule 37(a), was not plainly erroneous, based upon the history of

this litigation and the district court’s inventory of the myriad forms of

Ecclesiastes’s dilatory behavior following the recommencement of discovery on

M arch 10, 2004. 9 Cf. Rogers, 357 U.S. at 207-08 (holding that Rule 37 is the

exclusive mechanism for dismissal of complaint due to singular issue of

noncompliance with order requiring production of discovery).



9
       Ecclesiastes’s argument misinterprets the scope of the factual basis for the
district court’s use of Rule 41(b). The district court did not expressly rest its
decision on Ecclesiastes’s failure to comply with a discovery order. Nor did the
district court rest its failure-to-prosecute finding solely upon Ecclesiastes’s failure
to make a corporate designation under Rule 30(b)(6), conduct which would fall
under the province of Rule 37(a). Instead, as discussed infra, the district court
found that a R ule 41(b) dismissal was appropriate because Ecclesiastes willfully
engaged in a process of delay that resulted in the loss of vital Rule 30(b)(6)
testimony.

                                          -16-
      Furthermore, assuming arguendo that there was error, this error certainly

did not result in a miscarriage of justice that seriously affected “the fairness,

integrity or public reputation of judicial proceedings.” Sloan v. State Farm M ut.

Auto. Ins. Co., 360 F.3d 1220, 1226 (10th Cir. 2004); see Employers Reinsurance

Corp., 358 F.3d at 770. Significantly, the same test that district courts employ in

our circuit in considering motions for dismissal under Rule 41(b) – the Ehrenhaus

test – could have been used by the district court here to dismiss the action under

its inherent authority, without regard to the availability of a Rule 37 sanction.

Chavez v. City of Albuquerque, 402 F.3d 1039, 1043-44 (10th Cir. 2005)

(Ehrenhaus dismissal analysis applies when district court invokes inherent power

to dismiss jury verdict due to plaintiff’s perjury at trial); see Chambers v.

NASCO, Inc., 501 U.S. 32, 49 (1991) (noting that “inherent power of a court can

be invoked even if procedural rules exist which sanction the same conduct”).

Consequently, we w ould be hard pressed to conclude that the district court’s

invocation of Ehrenhaus under the Rule 41(b) framew ork resulted in a

miscarriage of justice and rendered its dismissal of the case fundamentally unfair.




                                          -17-
      B.     Appropriateness of Dismissal

       This Court review s for an abuse of discretion a district court’s decision to

dismiss an action for failure to prosecute. E.g., Nasious v. Two Unknown B.I.C.E.

Agents, No. 07-1105, __ F.3d __, 2007 W L 1895877, at * 2 (10th Cir. July 3,

2007) (“W e review dismissals under Rule 41(b) for abuse of discretion.”); see

Gripe v. City of Enid, Okla., 312 F.3d 1184, 1188 (10th Cir. 2002). An abuse of

discretion occurs when a district court makes “a clear error of judgment or

exceed[s] the bounds of permissible choice in the circumstances.” M cEwen v.

City of Norman, Okla., 926 F.2d 1539, 1553-54 (10th Cir. 1991). This occurs

when a district court relies upon an erroneous conclusion of law or upon clearly

erroneous findings of fact. See Ashby v. M cKenna, 331 F.3d 1148, 1149 (10th

Cir. 2003). Applying this deferential standard, we affirm the district court’s

dismissal order.

      Rule 41(b) states, “For failure of the plaintiff to prosecute or to comply

with these rules or any order of court, a defendant may move for dismissal of an

action or of any claim against the defendant.” Fed. R. Civ. P. 41(b). The

sanction of dismissal with prejudice for failure to prosecute is a “severe

sanction,” a measure of last resort. Jones v. Thom pson, 996 F.2d 261, 265 (10th

Cir. 1993); see Meade v. Grubbs, 841 F.2d 1512, 1521 n.7 (10th Cir. 1988).

      W e have identified a non-exhaustive list of factors that a district court

ordinarily should consider in determining whether to dismiss an action with



                                        -18-
prejudice under Rule 41(b): (1) the degree of actual prejudice to the other party;

(2) the amount of interference with the judicial process; (3) the litigant’s

culpability; (4) whether the court warned the party in advance that dismissal

would be a likely sanction for noncompliance; and (5) the efficacy of lesser

sanctions. 10 Ehrenhaus, 965 F.2d at 921; see Mobley v. M cCormick, 40 F.3d 337,

341 (10th Cir. 1993) (“Rule 41(b) involuntary dismissals should be determined by

reference to the Ehrenhaus criteria.”). Under this flexible framew ork, established

in our Ehrenhaus decision, dismissal is warranted w hen “the aggravating factors

outweigh the judicial system’s strong predisposition to resolve cases on their

merits.” Ehrenhaus, 965 F.2d at 921 (internal quotation marks omitted; quoting

M eade, 841 F.2d at 1521 n.7).

      Ecclesiastes concedes that the district court addressed each factor of the

Ehrenhaus test. Ecclesiastes nonetheless challenges the correctness of the district

court’s application of each factor and, hence, its ultimate conclusion.

             1.     Degree of Actual Prejudice

      The district court found that the loss of DeLorean’s deposition testimony –

the product of Ecclesiastes’s dilatoriness – actually prejudiced defendants. The

district court reasoned that the content and credibility of DeLorean’s testimony


10
      By contrast, a district court need not follow “any particular procedures”
when dismissing an action without prejudice under Rule 41(b). Nasious, __ F.3d
__, 2007 W L 1895877, at *2. Only a dismissal with prejudice triggers the
Ehrenhaus criteria because it is “a significantly harsher remedy – the death
penalty of pleading punishments.” Id.


                                         -19-
was essential to Ecclesiastes’s claims and defendants’ defense of those claims,

and also to defendants’ counterclaims. The district court noted, moreover, that

both parties recognized the critical value of this testimony.

      Ecclesiastes contests this finding, arguing that DeLorean’s death only

injured the likelihood of success of plaintiffs’ claims. In fact, Ecclesiastes

reasons that DeLorean’s death inured to defendants’ benefit, relieving defendants

of the task of impeaching his credibility or rebutting his statements at trial.

According to Ecclesiastes, the extent of defendants’ loss was the “opportunity to

conduct what they hoped would be a successful cross examination of Ecclesiastes’

primary witness.” Aplt. Br. at 20.

      W e agree with the district court’s analysis. Ecclesiastes’s position

overlooks the crucial function of the discovery process. For instance, defendants

were entitled to investigate the merits of the DeLorean-specific allegations in

plaintiffs’ complaint. According to these averments, DeLorean possessed

information concerning, inter alia, the negotiation of the APA , the meaning of

allegedly ambiguous provisions in the APA , 11 the defendants’ allegedly fraudulent
11
       As the district court properly perceived, defendants were entitled to explore
DeLorean’s and Ecclesiastes’s understanding of the meaning of these allegedly
“ambiguous” passages, even though the district court might have found later that
the APA is unambiguous and, through application of the parol evidence rule,
excluded such testimony at trial. See Fed. R. Civ. P. 26(b) (parties may obtain
discovery of any non-privileged matter “relevant to the claim or defense of any
party,” w hich covers any request “reasonably calculated to lead to the discovery
of admissible evidence”). Furthermore, contrary to Ecclesiastes’s assertions, the
presence of an integration clause in the APA would not per se exclude
DeLorean’s testimony as to the A PA’s meaning if portions of the A PA were
                                                                       (continued...)

                                         -20-
statements, and the extent of Ecclesiastes’s compliance with its post-closing

obligations.

      In fact, as the district court noted, DeLorean was “alleged to have been the

only negotiator of [the] transaction on behalf of the corporate plaintiffs and the

recipient on their behalf of the alleged fraudulent statements delivered by

defendants.” App. at 930. The loss of DeLorean’s deposition testimony

prevented defendants from fashioning an effective defense to Ecclesiastes’s fraud-

related and contract-related claims.

      Similarly, defendants had considerable need to explore, through DeLorean,

Ecclesiastes’s knowledge of facts relevant to defendants’ counterclaims. For

instance, defendants filed breach of contract, negligent misrepresentation, and

fraud-in-the-inducement counterclaims. To establish these claims, defendants

needed to depose DeLorean. The topics of particular significance to them, as to

these counterclaims, included: (1) DeLorean’s pre-transaction representations;

(2) DeLorean’s notes and correspondence regarding the execution of the APA ; (3)

the unexpected and arguably suspicious emergence of corporate documents

purporting to show that the pension plan w as terminated in 1988; (4) DeLorean’s

preparation of arguably conflicting calculations of the purchase-price




11
 (...continued)
found to be ambiguous. See, e.g., Proteus Books Ltd. v. Cherry Lane M usic Co.,
Inc., 873 F.2d 502, 509-10 (2d Cir. 1989) (applying New York law ); Kimball v.
Campbell, 699 P.2d 714, 716 (U tah 1985) (applying Utah law).

                                         -21-
adjustments; and (5) D elorean’s post-closing correspondence with Ecclesiastes’s

accountants.

      Indeed, Ecclesiastes asserted that DeLorean was the “only person” with

information relevant to certain subjects in defendants’ Rule 30(b)(6) notice. Its

failure to permit DeLorean’s knowledge to be memorialized prior to his death

consequently deprived defendants of the ability to gather facts essential to the

success of their counterclaims against Ecclesiastes.

      This prejudice is further confirmed by the parties’ express recognition of

DeLorean’s integral role in this litigation. In order to secure D eLorean’s

attendance at trial, defendants filed a motion to transfer venue to the Southern

District of New York, labeling DeLorean as “probably the single most critical

witness in this case.” App. at 403. In defending against this motion, Ecclesiastes

conceded not only that DeLorean’s testimony was “essential” to its case, but also

that “[i]t would be silly to think we could put on our case without him.” 12 App. at
12
      Ecclesiastes argues that Lambert, its local counsel, had no authority to
speak on behalf of Ecclesiastes at the motion to transfer venue hearing, and that
Lambert “conceded at the time” that he lacked the authority. Aplt. Reply Br. at 9.
Ecclesiastes’s record citations, however, do not evince Lambert’s purported
concession. And there is certainly “nothing novel” about holding clients
responsible for the conduct of their attorneys, even conduct they did not know
about. See, e.g., Gripe, 312 F.3d at 1188-89 (affirming dismissal under Rule
41(b) without direct evidence of plaintiffs’ knowledge of attorney’s derelictions
because litigant bound by actions of attorney). Cf. Link v. Wabash R.R. Co., 370
U.S. 626, 633, 634 & n.10 (1962) (affirming dismissal under trial court’s inherent
authority for attorney’s misconduct, including unexplained absence from pretrial
conference; observing that plaintiff “voluntarily chose this attorney as his
representative in the action, and he cannot now avoid the consequences of the acts
or omissions of this freely selected agent”).
                                                                       (continued...)

                                        -22-
1046. Furthermore, the district court acknowledged the indispensability of

DeLorean’s testimony, going so far as to command plaintiffs to file a statement

guaranteeing that, “absent legitimate health reasons,” Ecclesiastes would produce

DeLorean at trial. App. at 1050.

      In sum, even if DeLorean’s testimony would not have facilitated the

success of defendants’ defenses and counterclaims, defendants lost forever the

opportunity to make that determination. At least equally as important, they lost

an opportunity to gain relevant information as to Ecclesiastes’s perception of the

factual basis of the parties’ claims. Under the standards of our caselaw,

defendants clearly suffered prejudice. See Gripe, 312 F.3d at 1188 (concluding

that district court rested its dismissal order on “appropriate considerations” under

Ehrenhaus test when it found “on at least two occasions that plaintiff’s failure to

follow court orders and rules had inconvenienced and prejudiced defendants and

the court”); Jones, 996 F.2d at 264 (using Ehrenhaus test and noting that, due to

plaintiffs’ discovery non-compliance, “Defendants suffered prejudice in preparing

for trial w ithout the opportunity to depose the Plaintiffs”).

             2.     Degree of Interference




12
  (...continued)
        Nor did the district court misinterpret Ecclesiastes’s admission. The entire
statement reads as follows: “I will offer it as a solution because, as [defense]
counsel accurately points out, M r. DeLorean is essential to our case. It would be
silly to think we could put on our case without him.” App. at 1046.


                                          -23-
      The district court itemized Ecclesiastes’s unilateral, discovery-related

misconduct. The district court found this misconduct to be “willful” and aimed,

at least in significant part, at “avoid[ing] having M r. DeLorean deposed as

Ecclesiastes’s corporate representative.” App. at 934. It ultimately ruled that

Ecclesiastes’s misconduct interfered with its process. Id.

      Ecclesiastes responds that it was engaged in “a legitimate, good faith

dispute” over the propriety of defendants’ invocation of Rule 30(b)(6) and that

such a dispute “does not equate to interference with judicial process.” Aplt. Br.

at 22. W e reject Ecclesiastes’s position.

      As an initial matter, Ecclesiastes’s dilatoriness during the discovery process

went beyond a mere “discovery dispute” over whether Ecclesiastes was required

to designate R ule 30(b)(6) representatives. The district court thoroughly

documented the litany of dilatory conduct: Ecclesiastes’s failure to designate

corporate representatives until at least four months after defendants’ Rule

30(b)(6) notice; Ecclesiastes’s failure to communicate in a timely and responsive

fashion with defendants during the discovery period; Ecclesiastes’s failure to

produce DeLorean for a Rule 30(b)(6) deposition, even after designating him,

despite repeated written attempts by defendants’ counsel to secure an exact date

for his deposition; and Ecclesiastes’s sudden and “inexplicabl[e]” withdrawal of

DeLorean as a Rule 30(b)(6) designee. App. at 934; see id. at 933. This behavior

clearly violated the district court’s mandate to proceed with “all dispatch.” App.



                                         -24-
at 1106. And, consequently, we cannot conclude that the district court erred in

finding that Ecclesiastes interfered with its process. See, e.g., Archibeque v.

Atchison, Topeka and Santa Fe Ry. Co., 70 F.3d 1172, 1174-75 (10th Cir. 1995)

(upholding district court’s finding that plaintiff’s willful failure to disclose

requested information during discovery amounted to a serious interference with

the judicial process).

      Furthermore, Ecclesiastes’s contention that it operated under a good-faith

belief that it could decline to make Rule 30(b)(6) designations because it lacked

control of potential designees strains credulity. The law is well-settled that

corporations have an “affirmative duty” to make available as many persons as

necessary to give “complete, knowledgeable, and binding answers” on the

corporation’s behalf. Reilly v. Natwest M kt. Group Inc., 181 F.3d 253, 268 (2d

Cir. 1999) (internal quotation marks omitted; quoting Sec. & Exch. Comm’n v.

M orelli, 143 F.R.D. 42, 45 (S.D.N.Y. 1992)); see Fed. R. Civ. P. 30(b)(6)

(“organization so named shall designate one or more officers, directors, or

managing agents, or other persons w ho consent to testify on its behalf” (emphasis

added)).

      This duty is not negated by a corporation’s alleged lack of control over

potential Rule 30(b)(6) deponents. See Resolution Trust Corp. v. S. Union Co.,

Inc., 985 F.2d 196, 197 (5th Cir. 1993) (noting that Rule 30(b)(6) places the

burden of identifying responsive witness for corporate deposition on corporation);



                                          -25-
Roger Fendrich and Kent Sinclair, Discovering Corporate Knowledge and

Contentions, 50 Ala. L. Rev. 651, 665 (1999) (noting that “[a]ny witness who can

gather responsive information may be designated by the company” and that, in

“one common scenario,” corporations designate individuals who “lack[] personal

know ledge” of the events giving rise to the litigation but who have otherwise

been educated about it). 13

      W e also note that, insofar as lack of control is a consideration in the

operation of Rule 30(b)(6), this absence of control is not established by an

individual’s status as a corporate officer or director. See Fed. R. Civ. P. 30(b)(6)

& advisory committee’s note, 1970 amendment (evincing that “officers, directors,

or managing agents” are typical Rule 30(b)(6) designees and others may be

designated “but only with their consent”). Indeed, the 1970 amendments to Rule

30 expressly removed the previous distinction between directors, on one hand,


13
       Ecclesiastes relies primarily upon the Fendrich and Sinclair law review
article to support its legal position. (Aplt. Br. at 22-25.) The article offers,
however, no meaningful assistance. W hile highlighting the many ways in which
civil plaintiffs may abuse the Rule 30(b)(6) process, the article emphasizes that a
“corporation is obligated to comply” with a Rule 30(b)(6) notice, even though it
need not designate a former employee. Id. at 664; see id. at 654-57, 665. It
further notes that “the view that the duty to educate a person with no prior
knowledge is ‘prejudicial’ to a corporation has not prevailed, and it appears now
to be recognized that the Rule 30(b)(6) deponent must be woodshedded with
information that was never known to the witness prior to deposition preparation.”
Id. at 689-90 (footnotes omitted); see id. at 687 (“U sing the discovering party’s
roster of desired information as a guide, the entity is expected to create a witness
with responsive knowledge.”). Therefore, even Ecclesiastes’s own authority
reveals that, under the facts of this case, Ecclesiastes was required to produce a
knowledgeable deponent, whether DeLorean or a third-party educated by
Ecclesiastes on relevant matters.

                                        -26-
and managing agents and officers, on the other; a corporation now is deemed to

have legal control over its directors, like its managing agents and officers, for

deposition purposes. Id.; see also 8A Charles Alan W right, Arthur R. M iller,

Richard L. M arcus, Federal Practice & Procedure § 2103, at 37-39 (1994)

(discussing the effects of the complimentary 1970 amendments to Rule 30(b) and

Rule 37(d) that, respectively, rejected the notion that a corporation lacks “power

over its directors,” and, therefore, mandated that a “corporation is responsible for

producing its . . . directors if notice is given” (emphasis added)). The text and

history of R ule 30(b)(6) clearly defeat Ecclesiastes’s contention that DeLorean’s

status as only “an officer or director on paper” had the effect of eliminating its

legal control over him. Aplt. Reply Br. at 6. Accordingly, Ecclesiastes cannot

reasonably predicate its purported good-faith belief on this theory.

      To show good faith, Ecclesiastes had to promptly respond in some fashion

to defendants’ Rule 30(b)(6) notice. Ecclesiastes could have promptly informed

defendants of its alleged concerns about the propriety of their Rule 30(b)(6)

notice. Or Ecclesiastes could have explained its purported inability to provide

information responsive to the notice. Then, failing a negotiated resolution with

defendants, Ecclesiastes could have sought a protective order from the district

court. See EEOC v. Thurston M otor Lines, Inc., 124 F.R.D. 110, 114 (M .D. N.C.

1989) (imposing Rule 37 sanctions on successor to corporate party served with

Rule 30(b)(6) notice because successor “had absolutely no right . . . to refuse to



                                         -27-
designate a witness. If it had an objection to discovery, its opportunity was to

request a protective order . . . .”). Cf. Fed. R. Civ. P. 30(b)(6) advisory

committee’s note, 1970 amendments (noting availability of protective orders to

curb possible excesses in corporate discovery practices and specifically stating

that “a court’s decision whether to issue a protective order may take account of

the availability and use made of the procedures provided in this subdivision”).

Yet, the record reveals no sign that Ecclesiastes followed this or a similarly

responsive path.

      Instead, Ecclesiastes delayed for at least four months – without noting any

legal objections – before it offered a roster of Rule 30(b)(6) witnesses, including

DeLorean. Then, Ecclesiastes allow ed w eeks to elapse before it withdrew these

witnesses. In particular, it allowed a considerable period to pass before it

withdrew the unquestionably most important Rule 30(b)(6) w itness, DeLorean.

Significantly, these withdrawal decisions were not based upon newly-emergent

facts or circumstances. Rather, Ecclesiastes withdrew its designees based upon

concerns regarding their alleged third-party status – concerns that should have

been apparent to Ecclesiastes when defendants first issued their Rule 30(b)(6)

notice in M arch 2004.

      Therefore, we reject Ecclesiastes’s argument that the district court erred in

basing its interference finding on Ecclesiastes’s alleged good-faith dispute over

Rule 30(b)(6) discovery. Put simply, Ecclesiastes’s conduct involved more than a

                                          -28-
simple discovery dispute over Rule 30(b)(6) designations, and we cannot

conclude that Ecclesiastes acted in good faith.

             3.    Culpability of Ecclesiastes

      The district court found that, as a consequence of Ecclesiastes’s “willful

effort” to avoid DeLorean’s Rule 30(b)(6) deposition, his “critical testimony” was

not preserved. App. at 994. Ecclesiastes contests this finding, arguing that it was

not required to designate DeLorean as its corporate designee because he was not

within its control, and that it offered to arrange deposition dates for D eLorean in

his personal capacity on multiple occasions.

      Ecclesiastes’s protestations ring hollow. As indicated above, Ecclesiastes’s

lack-of-control argument rests on a dubious legal foundation. Furthermore,

irrespective of whether Ecclesiastes was required to designate D eLorean, it did

designate DeLorean. 14 Inexplicably, it waited at least four months to do so.

      Ecclesiastes must have understood DeLorean’s central role in the

negotiation and closing of the APA . Indeed, during the course of the litigation,

Ecclesiastes conceded that DeLorean was Ecclesiastes’s sole remaining officer

and director, and the only individual who could address certain topics in

14
       It is somewhat odd that Ecclesiastes’s arguments appear to erroneously
assume that it never designated DeLorean under Rule 30(b)(6). See Aplt. Br. at
30 (“The reason that DeLorean was not deposed earlier was due entirely to the
fact that Defendants’ counsel would not proceed unless and until Ecclesiastes
made a 30(b)(6) designation . . . . Ecclesiastes resisted this ultimatum . . . .”
(emphasis added)).


                                        -29-
defendants’ Rule 30(b)(6) notice. Accordingly, DeLorean should have been front

and center for Ecclesiastes as a Rule 30(b)(6) designee.

      Then, after it finally designated DeLorean, Ecclesiastes willfully and

unreasonably failed to communicate with defendants to nail down deposition

dates for him and the other Rule 30(b)(6) witnesses. During all of this time,

moreover, Ecclesiastes was w ell aw are of DeLorean’s advanced age and fragile

health. Even more egregiously, Ecclesiastes chose to withdraw its Rule 30(b)(6)

designation eight months after being served with defendants’ Rule 30(b)(6)

notice, which necessarily implicated DeLorean’s testimony. Reciting this litany

of Ecclesiastes’s w illful misconduct supplies the answ er to the question before us:

that is, the district court did not err in finding under our Ehrenhaus analysis that

Ecclesiastes was culpable.

      It is true that Ecclesiastes expressed a willingness to make arrangements for

defendants to depose DeLorean solely in his personal capacity. This fact,

however, is beside the point. DeLorean was uniquely situated to respond to

certain inquires raised in defendants’ Rule 30(b)(6) notice. In the absence of a

court ruling to the contrary, defendants were legally entitled to answers to those

inquiries. Ecclesiastes’s presentation of DeLorean for a deposition solely in his

personal capacity could not have satisfied defendants’ evidentiary needs. And,

with DeLorean’s death, these needs will never be satisfied.




                                         -30-
             4.     Advance Notice of Sanction of Dismissal

      The district court found that Ecclesiastes had “constructive notice” of the

possibility of dismissal for future delays. The district court inferred constructive

notice from the following events: its consideration of defendants’ first Rule 41(b)

motion to dismiss; its M arch 10, 2004 mandate that the parties proceed with “all

dispatch”; Ecclesiastes’s necessary recognition of the imperative of promptly

conducting DeLorean’s deposition as a corporate representative, due to

DeLorean’s age, health, and inimitable capacity to satisfy the inquiries of

defendants’ Rule 30(b)(6) notice; defendants’ motion to compel and its accurate

recitation of Ecclesiastes’s Rule 30(b)(6) obligations; and the court’s warning at

the January 2005 hearing on defendants’ motion to transfer that if DeLorean “was

not made available at trial, barring impossibility, the Court would dismiss

plaintiffs’ claims against defendants.” App. at 935-36.

      Ecclesiastes’s primary argument on appeal is that this prong cannot be

satisfied without a specific warning by the district court of the possibility of

dismissal in the event of the commission of identified misconduct. Under this

formulation, constructive notice, as a matter of law, does not satisfy the notice

prong of the Ehrenhaus test. Ecclesiastes further argues that, even if constructive

notice is legally sufficient, the notice in this instance was inadequate because it

did not occur in connection with the conduct forming the basis for the dismissal.




                                         -31-
      At the outset, we must point out that notice is not a prerequisite for

dismissal under Ehrenhaus. See Archibeque, 70 F.3d at 1175 (affirming dismissal

pursuant to Ehrenhaus test despite absence of warning as to imminent dismissal).

Cf. Link, 370 U.S. at 632 (upholding dismissal predicated upon trial court’s

inherent authority and stating that “absence of notice as to the possibility of

dismissal . . . [does not] necessarily render such a dismissal void”). Nonetheless,

because notice is an important element in the Ehrenhaus analysis, we address

Ecclesiastes’s challenge.

      Frequently, when we have concluded that Ehrenhaus’s notice prong has

been met, the trial court has indeed expressly identified dismissal as a likely

sanction. See Gripe, 312 F.3d at 1188; Jones, 996 F.2d at 265. However, we

have never declared this form of express notice to be the minimum standard for

satisfaction of the notice prong. In fact, w e have applied a less exacting standard.

For instance, in Ehrenhaus itself, we concluded that an oral warning to “expect a

motion from the defendants that [the] case be dismissed for failure to cooperate in

discovery,” if plaintiff failed to attend a continued deposition, “put Ehrenhaus

[plaintiff] on notice that failure to comply” w ould subject his claims to dismissal.

Ehrenhaus, 965 F.2d at 921 (emphasis added).

      The district court in Ehrenhaus did not promise to dismiss the action in the

event of plaintiff’s failure to cooperate.   Nor did it even assert that dismissal

would be the likely judicial sanction for such a failure. It simply indicated that

                                         -32-
dismissal would become an issue if plaintiff failed to cooperate, and that it would

entertain a motion seeking such relief. Therefore, constructive notice – that is,

notice (1) w ithout an express warning and (2) objectively based upon the totality

of the circumstances (most importantly, the trial court’s actions or words) – was

precisely the kind of notice that we considered in Ehrenhaus and deemed to be

sufficient. Ecclesiastes’s attempt to map an express-warning requirement onto

Ehrenhaus’s notice prong is therefore fatally undercut by the facts of Ehrenhaus

itself.

          Further, we note that Ecclesiastes has failed to cite binding or persuasive

caselaw holding that constructive notice is legally insufficient to satisfy

Ehrenhaus’s notice prong. In fact, the lone case upon which Ecclesiastes relies,

Salahuddin v. Harris, 782 F.2d 1127 (2d Cir. 1986), is inapposite: the Second

Circuit did not reject the concept of constructive notice in a Rule 41(b) context,

but, instead, refused to imply the existence of a discovery order to support the

district court’s sanction of dismissal under Rule 37(b). See Harris, 782 F.2d at

1132.

          Applying this constructive notice methodology, we affirm the district

court’s finding. Ecclesiastes was warned of the possibility of dismissal when the

district court denied defendants’ first motion to dismiss for lack of prosecution.

And the district court stated that, if plaintiffs are to blame for the loss of

evidence, it “will be able to apply sanctions on an issue-by-issue, evidence-by-

                                            -33-
evidence basis.” A pp. at 1106. The district court further warned the parties to

proceed “with all dispatch.” Id.

      Like Ehrenhaus, it is true that the district court here never promised to

dismiss the case in the event of dilatoriness or evidentiary losses. But it certainly

left open, if not highlighted, such a possibility. In fact, Ecclesiastes recognized

the likelihood of this outcome when its counsel declared, in opposition to

defendants’ motion to transfer venue, that it would be “practicable” for the

district court to default Ecclesiastes if it failed to produce DeLorean, based upon

the importance of DeLorean’s testimony to its claims. App. at 1044.

      Ecclesiastes’s contention that the district court’s constructive notice was

inadequate because it did not occur in relation to the conduct forming the basis

for the dismissal is misguided. It is premised upon the notion that the conduct at

issue was solely Ecclesiastes’s purported good-faith resistance to designating

witnesses under Rule 30(b)(6). See Aplt. Br. at 28 (acknowledging district

court’s reference to “all dispatch” notice, and stating that “[t]he remaining

‘notices’ arose in December of 2004 and January of 2005, after the 30(b)(6)

dispute had already become the subject of a M otion to Compel. In opposing the

30(b)(6) notice, Ecclesiastes could not have anticipated that DeLorean would die,

or that his death w ould be grounds for dismissal.” (emphasis added)). However,

as discussed above, Ecclesiastes’s w illful misconduct went beyond a simple




                                         -34-
dispute over the designation of Rule 30(b)(6) witnesses, and the record does not

support a determination that Ecclesiastes operated in good faith.

       Accordingly, on these facts, we conclude that Ehrenhaus’s notice prong

was satisfied.

             5.    Availability of Lesser Sanctions

       The district court acknowledged the gravity of the dismissal sanction, but

found it to be the only appropriate remedy due to the incurable loss of D eLorean’s

“unique and critical testimony.” App. at 936. In the proceedings below,

Ecclesiastes failed to identify an appropriate sanction short of dismissal. Nor has

Ecclesiastes done so on appeal. Thus, the district court did not err in finding the

non-availability of lesser sanctions.

III.   C ON CLU SIO N

       The district court thoroughly considered and properly applied the

Ehrenhaus criteria. It did not abuse its discretion in dismissing the action

pursuant to Rule 41(b). Accordingly, we AFFIRM .




                                        -35-
