                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         FEB 24 2003
                            FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


    CETA DOCHTERMAN; CELECE
    DOCHTERMAN, a minor, by and
    through her Guardian Ad Litem Ceta
    Dochterman,

               Plaintiffs-Counter-
               Defendants-Appellants,

    v.

    RESOURCE REALIZATIONS, a                           No. 01-4247
    corporation,                                 (D.C. No. 98-CV-825-K)
                                                        (D. Utah)
               Defendant,

         and

    TEEN HELP; R&B BILLING, a
    corporation, also known as R&D
    Billing; DIXIE CONTRACT
    SERVICES, a corporation; ROBERT
    B. LICHFIELD; BRENT M. FACER,

               Defendants-Counter-
               Claimants-Appellees.


                            ORDER AND JUDGMENT          *




*
      This order and judgment is not binding precedent, except under the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.
Before EBEL , BALDOCK , and LUCERO , 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.

       Plaintiffs Ceta Dochterman and her daughter Celece Dochterman appeal the

district court’s order dismissing their complaint as a sanction for their repeated

failures to provide discovery. We exercise jurisdiction under 28 U.S.C. § 1291

and affirm.


                                        Background

       Defendants   1
                        operated a residential facility for treatment of teenagers with

behavioral and other problems. Ceta Dochterman placed her daughter Celece in

the facility in 1995 and 1997. Plaintiffs claimed that Celece was physically and

mentally abused there, and that they had been deceived about the abusive

treatment techniques prior to Celece’s placement. They filed suit invoking

diversity jurisdiction and alleging various causes of action based on Celece’s



1
      Defendant Resource Realizations is not a party to this appeal. Our
references to “defendants” are to the remaining defendants, who are appellees.

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treatment. Plaintiffs alleged that defendants directed and/or participated in the

abuse of Celece. Defendants filed a counterclaim, which they abandoned when

the district court dismissed plaintiffs’ case.

      The district court assigned the case to a magistrate judge for pretrial

proceedings, pursuant to 28 U.S.C. § 636(b)(1). Discovery ensued. Defendants

attempted three times to depose both plaintiffs, but plaintiffs never appeared and

were never deposed. Consequently, the magistrate judge ruled that plaintiffs

would not be allowed to testify at trial. Appellants’ App. at 328.

      Similar problems arose with plaintiffs’ designation of their expert

witnesses. Due to plaintiffs’ failure to provide their experts’ reports, defendants

filed a motion to exclude expert witnesses or compel discovery. By an order

dated December 4, 2000, the magistrate judge denied the request to exclude the

witnesses, but granted the motion to compel discovery and imposed a sanction of

$750 against plaintiffs and their attorney for defendants’ costs and attorney fees

in bringing the motion.   Id. at 194-96. Plaintiffs produced the report of only one

of their expert witnesses, and as a consequence, they were precluded from calling

any experts except the one whose report was provided.     Id. at 328.

      In February 2000, defendants moved for sanctions. In an order dated

October 24, 2000, the district court denied the motion, but warned that “[t]his




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denial should not be interpreted as an indication that the court will continue to

allow dilatory behavior without consequence.”                    Id. at 279.

       Plaintiffs also failed to produce medical records and other documents

defendants requested through discovery. Defendants filed a motion to compel

their production, which the magistrate judge granted following a hearing on

February 1, 2001.      See Id. at 326-29. The order required that the documents be

produced or that plaintiffs “submit a signed authorization . . . providing for the

release of all such records to defendants.”               Id. at 327. Plaintiffs were granted two

weeks to produce the discovery.          Id. at 328. The order imposed another monetary

sanction, this time in the amount of $5,302.51, against plaintiffs and their

attorney to compensate defendants for their costs and attorney fees in attempting

to obtain discovery.     Id. at 329. In addition, the magistrate judge issued the

following warning: “Any failure of plaintiffs to fully comply with the demands

and deadlines set forth above will be considered grounds for a recommendation of

dismissal of this action in its entirety . . . .”          Id.

       On the due date, plaintiffs produced releases for the medical records rather

than the records themselves. The releases were signed only by Ceta Dochterman

and were not notarized. By then, however, Celece had attained the age of

majority, so her signature was required to obtain her records. Celece did not

provide any releases. Her attorney candidly admitted that Celece had failed to


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maintain contact with him. Defense counsel informed plaintiffs’ attorney that the

releases were inadequate to obtain the records, but plaintiffs did not correct the

problem.

       Plaintiffs then filed notices to depose several of defendants’ witnesses.

Defendants filed a motion to dismiss based on plaintiffs’ failure to comply with

the order to compel discovery. The motion also requested a protective order to

postpone their witnesses’ depositions until the motion to dismiss was resolved.

The protective order was granted.

       The magistrate judge twice ordered plaintiffs to retain local Utah counsel

because their counsel of record was an attorney practicing in California.      Id.

at 196, 329. Plaintiffs did not comply with those orders.

       In considering the motion to dismiss, the magistrate judge reviewed the

history of discovery problems, including the two prior monetary sanctions and the

two warnings that failure to comply could result in dismissal. He determined that

plaintiffs had failed to comply with court orders for discovery and that their

conduct had “frustrated the litigation, precluded defendants from being able to

prepare in this case and precluded a resolution on the merits.”      Id. at 392-93.

Accordingly, the magistrate recommended that the case be dismissed with

prejudice.




                                            -5-
       The district court conducted a de novo review of the recommendation, the

objections thereto, the motions and briefs, and the record. It found that plaintiffs

had been warned that their case would be dismissed if they failed to comply with

the order to compel discovery, and that plaintiffs had not complied with the

discovery order or the orders to retain associate local counsel.    The court adopted

the magistrate judge’s recommendation, and dismissed the case with prejudice on

October 24, 2001.

       Plaintiffs appeal, claiming that they complied with the order to compel

discovery by providing the medical releases signed by Ceta Dochterman. They

also assert that (1) dismissal was not warranted under the circumstances, (2) the

court was without jurisdiction to dismiss the case because defense counsel had not

complied with the rule to meet and confer about discovery disputes, (3) the court

abused its discretion and acted in excess of its jurisdiction in granting the

protective order, and (4) the monetary sanction of $5,302.51 was not supported by

any evidence and was awarded in violation of court rules.


                                        Discussion

       “A district court undoubtedly has discretion to sanction a party for failing

to prosecute or defend a case, or for failing to comply with local or federal

procedural rules.”   Reed v. Bennett , 312 F.3d 1190, 1195 (10th Cir. 2002). This

discretion includes dismissal for discovery violations.      Archibeque v. Atchison,

                                             -6-
Topeka & Santa Fe Ry. Co. , 70 F.3d 1172, 1174 (10th Cir. 1995). Because

dismissal is a severe sanction, it should be imposed only if a “lesser sanction

would not serve the ends of justice.”     Reed , 312 F.3d at 1195 (quotation omitted).

In evaluating whether dismissal is an appropriate sanction, the district court

should consider the following factors: (1) the degree of actual prejudice to the

opposing party, (2) the degree of interference with the judicial process, (3) the

litigant’s culpability, (4) whether the litigant was warned in advance that

dismissal was a likely sanction, and (5) whether a lesser sanction would be

effective. Gripe v. City of Enid , 312 F.3d 1184, 1188 (10th Cir. 2002) (citing

Ehrenhaus v. Reynolds , 965 F.2d 916, 921 (10th Cir. 1992)).

       Plaintiffs maintain that the dismissal order must be reversed because it was

based on the magistrate judge’s erroneous conclusion that they had failed to

comply with the order compelling discovery. An abuse of discretion can occur

when the district court relies on clearly erroneous findings of fact.   Kiowa Indian

Tribe of Okla. v. Hoover , 150 F.3d 1163, 1165 (10th Cir. 1998). Plaintiffs

maintain that they complied with the order by submitting releases signed by Ceta

Dochterman. They do not claim, however, that these releases were sufficient to

permit defendants to obtain the records. Their argument ignores both the spirit

and the letter of the magistrate judge’s order compelling discovery, which stated

that any authorization must “provid[e] for the release of all such records to


                                             -7-
defendants.” Appellant’s App.     at 327. We conclude that the district court’s

determination that plaintiffs failed to comply with discovery orders was not

clearly erroneous.

       As for plaintiffs’ argument that the sanction of dismissal was not

warranted, the record demonstrates that the district court’s decision to dismiss the

case was based on the appropriate considerations. The court noted that plaintiffs’

failure to provide discovery had inconvenienced and prejudiced defendants and

the court. The magistrate judge found that plaintiffs’ conduct had “frustrated the

litigation, precluded defendants from being able to prepare in this case and

precluded a resolution on the merits.”   Id. at 393. Furthermore, plaintiffs’ failure

to retain local associate counsel made the litigation more cumbersome and

expensive.

       Plaintiffs failed three times to appear for their own depositions, Celece

refused to cooperate with her attorney, and the medical records were never made

available to defendants. The court twice clearly warned plaintiffs that failure to

comply with orders of court, particularly discovery orders, could result in

dismissal of their case. Lesser sanctions of monetary payments were imposed

twice, but plaintiffs continued to disobey court orders. Accordingly, the district

court acted within its discretion in dismissing the case.




                                          -8-
      Plaintiffs next assert that the district court was without jurisdiction to

dismiss the case because defense counsel had not complied with Fed. R. Civ. P.

37(a)(2)(B) by meeting and conferring with plaintiff’s attorney. Rule 37(a)(2)(B)

requires a good-faith conference or attempt to confer “in an effort to secure the

information or material without court action.” In fact, the attorneys met in person

for this purpose following a hearing. An impediment to conferring was the fact

that plaintiffs’ counsel resided in California. Defense counsel sent numerous

written explanations of discovery disputes, requesting resolution. Under these

circumstances, we hold that defendants complied with Rule 37(a)(2)(B).

      Plaintiffs also claim that the magistrate judge abused his discretion and

acted in excess of his jurisdiction in granting the protective order postponing

depositions of defendants’ witnesses until the motion to dismiss was resolved.

We review a discovery protective order for an abuse of discretion.     Harris Mkt.

Research v. Marshall Mktg. & Communications, Inc.        , 948 F.2d 1518, 1526 (10th

Cir. 1991). Plaintiffs assert that the court gave no reason for the protective order

and that they were prejudiced because they were not allowed to develop evidence.

This argument is disingenuous. The magistrate judge stated that discovery would

be stayed pending resolution of the motion to dismiss. Appellant’s App. at

439-40. Moreover, plaintiffs do not argue that discovery would have assisted

them to resist the motion to dismiss. We conclude that the magistrate judge did


                                           -9-
not abuse his discretion in staying discovery pending a ruling on the dismissal

motion.

       Finally, we reject plaintiffs’ claim that the monetary sanction of $5,302.51

was not supported by any evidence and was awarded in violation of court rules.

Defense counsel’s affidavit stated that defendants incurred that amount in

attempting to depose plaintiffs and filing pleadings necessitated by plaintiffs’

discovery violations.   See Appellees’ Supp. App. at 97-99. To the extent

plaintiffs argue that Rule 37(a)(2)(B), requiring attorneys to confer on discovery

matters, should invalidate this award, we have held above that the requirements of

Rule 37(a)(2)(B) were met.

       The judgment of the United States District Court for the District of Utah is

AFFIRMED.



                                                    Entered for the Court



                                                    Bobby R. Baldock
                                                    Circuit Judge




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