                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          April 25, 2006
                            FOR THE TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                          Clerk of Court


    LAURA S. CUMMINGS,

              Plaintiff-Appellant,

     v.                                                  No. 05-4085
                                                   (D.C. No. 2:02-CV-444-C)
    EQUITABLE LIFE & CASUALTY                              (D. Utah)
    INSURANCE COMPANY, a Utah
    corporation,

              Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before KELLY, BRISCOE, and LUCERO, Circuit Judges.


          Plaintiff-appellant Laura S. Cummings, appearing pro se, appeals from the

district court’s March 10, 2005 order confirming an arbitration award in favor of




*
       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. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
her employer, defendant Equitable Life and Casualty Insurance Company

(Equitable). We have jurisdiction under 28 U.S.C. § 1291.

      In 1995 and 1996, appellant filed employment discrimination and

retaliation charges against Equitable with the Utah Antidiscrimination and Labor

Division. Those charges were settled in November 1997 with the parties’

adoption of a settlement agreement, and a letter/addendum which contained an

arbitration provision. In 2002, appellant filed a complaint in the district court,

alleging that Equitable discriminated against her in breach of the settlement

agreement and letter/addendum and in violation of state and federal law.

Equitable moved to dismiss or, in the alternative, stay all of appellant’s claims

pending arbitration. On January 21, 2003, the district court issued an Opinion and

Order that: (1) dismissed appellant’s state claims with prejudice for failure to

exhaust state administrative remedies, (2) ruled that all of plaintiff’s federal

claims should be arbitrated, and (3) stayed her federal claims pending arbitration.

      On December 1, 2004, the arbitrator issued her award, ruling in favor of

Equitable on all of appellant’s claims. Equitable filed a motion to confirm the

award in the district court on December 3, 2004. Appellant sought additional

time to respond and, on January 5, 2005, was granted sixty days more. On

March 1, 2005, appellant filed another motion for enlargement of time but did not

wait for the court to rule on her motion. Rather, on March 7, 2005, appellant


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filed her response in opposition to the motion to confirm. On March 10, 2005,

the district court confirmed the arbitration award.

      Appellant argues that: (1) the district court held that all of her claims

should be arbitrated, and so the dismissal of her state claims should be reversed

so that those claims can be arbitrated; and (2) the confirmation of the arbitration

award should be reversed because the district court did not address her pending

motion for enlargement of time.

      Appellant’s first argument is without merit. The district court did not hold

that her state claims should be arbitrated; the court held that they should be

dismissed for appellant’s failure to exhaust state administrative remedies, as

required by Utah law. Aplee. Supp. App. at 107. Under Utah law, appellant’s

failure to obtain a final state administrative decision barred judicial review. See

Maverik Country Stores, Inc. v. Indus. Comm’n of Utah, 860 P.2d 944, 947-48

(Utah Ct. App. 1993) (discussing jurisdictional requirement of exhaustion of

administrative remedies under Utah Anti-Discrimination Act and Utah

Administrative Procedures Act). We note, however, that “a dismissal based on

lack of exhaustion should ordinarily be without prejudice.” Fitzgerald v. Corr.

Corp. of Am., 403 F.3d 1134, 1139 (10th Cir. 2005). Therefore, we vacate and

remand for this limited purpose: for the district court to modify its Opinion and




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Order and its Judgment to reflect that its dismissal of appellant’s state claims is

without prejudice.

      Appellant’s second argument is also without merit. She filed her response

in opposition to Equitable’s motion to confirm without waiting for the district

court to rule on her motion for enlargement of time to file her response. Under

these circumstances, the district court did not err by entering its ruling on the

motion to confirm without mentioning her “pending” motion.

      We AFFIRM the district court’s dismissal of appellant’s state claims and

VACATE only the court’s references to the dismissal being with prejudice. We

REMAND only for the district court to amend its judgment to dismiss the state

claims without prejudice. We AFFIRM the district court’s rulings in all other

regards.



                                                     Entered for the Court



                                                     Mary Beck Briscoe
                                                     Circuit Judge




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