                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUN 4 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    ROBERT L. DIMOND,

                Plaintiff-Appellant,

    v.                                             Nos. 98-2043 & 98-2195
                                                   (D.C. No. CIV-96-1013)
    ALLSUP’S CONVENIENCE                                  (D. N.M.)
    STORES, INC.,

                Defendant-Appellee.




                            ORDER AND JUDGMENT            *




Before TACHA , BARRETT , and MURPHY , Circuit Judges.



         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      This order and judgment is not binding precedent, except under the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.
       In appeal No. 98-2043, plaintiff Robert Dimond, appearing pro se, appeals

an order of the district court dismissing his 42 U.S.C. §§ 12101-12213 Americans

with Disabilities Act (ADA) complaint under Fed. R. Civ. P. 41(b) for failure to

prosecute. In appeal No. 98-2195, Dimond appeals the district court’s award of

costs to defendant as the prevailing party pursuant to Fed. R. Civ. P. 54 and

Rule 54 of the Rules for the United States District Court for the District of New

Mexico. We reverse and remand.

       Dimond filed his ADA complaint in 1996, alleging that defendant had

denied him employment because of his disabilities. Dimond failed to attend a

January 6, 1998 pre-trial conference, telling his counsel he was tired.   See

R. Vol. IV at 13. At the pre-trial conference, the district court set the case for

trial on Monday, January 12, 1998. Dimond’s counsel verbally moved to

withdraw as counsel at the pre-trial conference, but the district court deferred

ruling on the withdrawal request until the start of trial.

       On January 7, 1998, defendant’s counsel served Dimond with a subpoena

directing him to appear at trial on January 12. On that same date, Dimond’s

counsel filed a formal motion to withdraw as counsel. Dimond filed a pro se

response to the withdrawal request on Friday, January 9, 1998, requesting that the

January 12 trial date be vacated pending resolution of the withdrawal request and

further requesting that, if his counsel’s motion to withdraw was granted, the


                                             -2-
district court reset the trial to July in order to give him time to prepare for trial

pro se. See R. Vol. II, Doc. 130 at 3-4. In this motion, plaintiff stated that he

would not appear in court for trial on Monday, January 12, 1998 because it

appeared to him that “there certainly will be no trial in this case on” that date.

Id. at 4.

       Dimond did not appear for trial on January 12, 1998. The district court

waited an hour for him to appear. Dimond’s counsel represented to the court that

Dimond had been told of the trial date and time. The process server testified that

he personally served Dimond with the subpoena to appear at trial and gave him a

check for fees and mileage. The district court noted that the pre-trial order

reflected that Dimond’s sole witness was himself. The district court then

summarily dismissed the action with prejudice under Rule 41(b) for failure to

prosecute based on Dimond’s failure to appear at trial, noting generally that

Dimond had repeatedly delayed the course of litigation. The district court

assessed jury fees against Dimond in the sum of $1,319.86, and later awarded

defendant costs of $2,449.56 as the prevailing party pursuant to Rule 54.

       On appeal, Dimond contends that the district court abused its discretion in

dismissing his complaint with prejudice. We review the imposition of the

sanction of dismissal for failure to prosecute or noncompliance with court orders

under the abuse of discretion standard.    See Jones v. Thompson , 996 F.2d 261,


                                           -3-
264 (10th Cir. 1993). A district court has the inherent power to dismiss an action

with prejudice for willful and inexcusable failure to prosecute.      See Link v.

Wabash R.R. Co. , 370 U.S. 626, 630-32 (1962). However, “dismissal is a severe

sanction and is not ordinarily warranted if lesser sanctions would be effective.”

Jones, 996 F.2d at 265; see also Meade v. Grubbs , 841 F.2d 1512, 1520 n.6.

(10th Cir. 1988) (“[b]ecause dismissal with prejudice defeats altogether a

litigant’s right to access to the courts, it should be used as a weapon of last, rather

that first, resort.” (citations, quotations and emphasis omitted)).

       When a district court dismisses an action case with prejudice, it has a duty

to explain why dismissal was an appropriate sanction.       See Ehrenhaus v.

Reynolds , 965 F.2d 916, 921-22 (10th Cir. 1992);       Woodmore v. Git-N-Go ,

790 F.2d 1497, 1499 (10th Cir. 1986). Thus, prior to dismissing a complaint,

a district court must ordinarily consider, on the record, several factors designed

to caution against premature or unreflective resort to this drastic sanction.

See Mobley v. McCormick , 40 F.3d 337, 340 (10th Cir. 1994).

       These criteria include: “(1) the degree of actual prejudice to the
       defendant; (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.”

Id. (quoting Ehrenhaus , 965 F.2d at 921). We have held that a district court’s

failure to evaluate and weigh the   Jones and Ehrenhaus factors amounts to an


                                            -4-
abuse of discretion because the failure to address these factors on the record

prevents this court from engaging in meaningful review of the district court’s

decision. See id. , 40 F.3d at 341.

       Here, as in Mobley , the record on appeal contains no indication that the

district court considered the criteria set out in      Jones and Ehrenhaus prior to

dismissing Dimond’s complaint with prejudice.            See id. at 341 (holding that

failure to consider these factors warrants reversal). The record does not indicate

that the district court ever warned Dimond that dismissal of his complaint would

likely result from his failure to appear in person at the trial.       See Ehrenhaus ,

965 F.2d at 919, 922 (explaining that such a warning is a factor we consider in

determining whether the district court abused its discretion). Significantly, the

district court did not consider Dimond’s request for a continuance in light of his

counsel’s motion to withdraw filed on the eve of trial. While it is true that

litigants are not free to appear before the court at their pleasure,      cf. Greenwood

Explorations, Ltd. v. Merit Gas & Oil Corp.          , 837 F.2d 423, 426 (10th Cir. 1988),

nonetheless, we are concerned that the district court failed to address the import

of counsel’s pending motion to withdraw or Dimond’s pending request for a

continuance of the trial. The district court also failed to consider on the record

whether a lesser sanction would suffice prior to dismissing Dimond’s case.               See

Jones, 996 F.2d at 265; Mobley 40 F.3d at 341 (stating “we are particularly


                                               -5-
concerned with the trial court’s failure to consider whether a lesser sanction

would be appropriate” when district court imposes the severe sanction of

dismissal with prejudice).

      Because the present state of the record does not permit an informed

decision of whether the district court considered the relevant criteria in dismissing

the case and whether the dismissal was within the discretion of the district court,

we reverse the orders of the district court dismissing the complaint and awarding

costs to defendant as the prevailing party and remand the case in order to afford it

an opportunity to evaluate the   Jones and Ehrenhaus factors. See Mobley , 40 F.3d

at 341. We express no view on the outcome after adequate evaluation of these

factors.

      Dimond filed a motion with the district court following the dismissal order

stating in part that the dismissal order should be vacated because he had

authorized his counsel to accept defendant’s settlement offer on January 8, 1998,

and therefore thought his case had been settled, implying his belief that he did not

need to appear for trial on January 12, 1998. Dimond did not characterize this

motion as one for relief from judgment pursuant to Fed. R. Civ. P. 60(b), nor did

the district court construe it as such under the liberal pleading standards for pro se

litigants. See Riddle v. Mondragon , 83 F.3d 1197, 1202 (10th Cir. 1996).

Nevertheless, on remand, the district court should consider whether Dimond may


                                          -6-
have been misled into thinking the trial would not take place on January 12, 1998,

as originally scheduled, because of his belief his case had been settled.

      Dimond’s request to proceed in forma pauperis on appeal is DENIED

because he has failed to demonstrate his inability to pay the requisite fees and

costs. See DeBardeleben v. Quinlan , 937 F.2d 502, 505 (10th Cir. 1991) (holding

that party must demonstrate an inability to pay the required filing fees to succeed

on a motion to proceed in forma pauperis). Dimond’s motion to strike

defendant’s Answer Brief is DENIED. The judgment of United States District

Court for the District of New Mexico is REVERSED and the case is REMANDED

for further findings consistent with this decision. The mandate shall issue

forthwith.



                                                     Entered for the Court



                                                     Deanell Reece Tacha
                                                     Circuit Judge




                                         -7-
