                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                       UNITED STATES CO URT O F APPEALS
                                                                        May 14, 2007
                              FO R TH E TENTH CIRCUIT               Elisabeth A. Shumaker
                                                                        Clerk of Court

    JULIA H OLG UIN; CA RM EN
    HO LGU IN; M AU RICIO O REJEL,
    by and through his parent and next
    friend, JUANA TOBANCHE; and
    AM ANDA FRESQ UEZ, by and
    through her parent and next friend,                    No. 06-2174
    C HRISTIN A LU JA N ,                       (D.C. No. CIV-05-628 M CA /RH S)
                                                            (D . N.M .)
                  Plaintiffs-Appellants,

      v.

    DETECTIVE ROB BIN B UR GE,
    an officer of the Albuquerque Police
    Department, individually,

                  Defendant-Appellee.



                               OR D ER AND JUDGM ENT *


Before L UC ER O, M cKA Y, and GORSUCH, Circuit Judges.


           Plaintiffs Julia Holguin, Carmen Holguin, M auricio Orejel, and Amanda

Fresquez filed this 42 U.S.C. § 1983 case— the third of three separate civil rights


*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
cases initiated by plaintiffs and based on a June 2003 search of a residence and

seizure of its occupants— against the City of Albuquerque and Robbin Burge, an

Albuquerque Police Department detective. 1 The City filed a motion for sum mary

judgment and Detective Burge filed a motion to dismiss. Both defendants, in

their respective motions, asserted that this case was an attempt by plaintiffs and

their counsel to gain an unfair tactical advantage and escape the consequences of

their misconduct in the first of plaintiffs’ three civil rights cases (Case 1). The

district court ultimately agreed.

      By order dated D ecember 28, 2005, the district court granted the City’s

summary judgment motion based on res judicata, deeming plaintiffs’ claims

precluded by the disposition in Case 1. Further, the court denied Detective

Burge’s motion to dismiss, but ordered plaintiffs to show cause why it should not

dismiss with prejudice all remaining claims against Detective Burge as a sanction

for plaintiffs’ and/or plaintiffs’ counsel’s alleged misconduct in Case 1 (perjury,

discovery delays, and failure to serve Detective Burge). After reviewing the

parties’ responses and the relevant law, the district court imposed the

contemplated sanction in an order dated January 20, 2006. Plaintiffs filed a

motion for reconsideration that the district court denied by order dated

M ay 19, 2006. This appeal followed.




1
      The City of Albuquerque is not a party to this appeal.

                                         -2-
      The district court provided detailed summaries of the relevant facts and

procedural history and we need not restate that material here. Aplt. App. at

131-35, 201-10. On appeal, plaintiffs assert the court erroneously: (1) failed to

give them adequate time to respond to the show cause order, (2) denied their

request for an evidentiary hearing prior to ruling on their response to the show

cause order, (3) dismissed their case as a sanction, (4) misapplied the Ehrenhaus

factors, 2 (5) sanctioned them for their attorney’s alleged improper conduct in

unrelated proceedings, and (6) denied their motion for reconsideration. Plaintiffs

also contend, as far as we can discern, that the district court erroneously found

that: (7) Detective Burge w as unfairly prejudiced in this case by plaintiffs’

failure to timely serve her in Case 1, and (8) plaintiffs’ alleged perjurious

deposition testimony was material evidence.




2
      In Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992) (citations
and quotations omitted), this court stated:

      Before choosing dismissal as a just sanction, a court should
      ordinarily consider a number of factors, including: (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. . . .

             These factors do not constitute a rigid test; rather, they
      represent criteria for the district court to consider prior to imposing
      dismissal as a sanction. The court should ordinarily evaluate these
      factors on the record.

                                         -3-
      Our jurisdiction arises under 28 U.S.C. § 1291. W e review for abuse of

discretion the district court’s decision not to grant plaintiffs an evidentiary

hearing prior to ruling on their response to the show cause order. United States v.

Nichols, 169 F.3d 1255, 1263 (10th Cir. 1999) (“[D]ecisions on the propriety of

evidentiary hearings are reviewed for an abuse of discretion.”). W e likew ise

review for abuse of discretion “a district court’s decision to dismiss a case as a

sanction.” Conkle v. Potter, 352 F.3d 1333, 1337 (10th Cir. 2003) (citing Gripe

v. City of Enid, 312 F.3d 1184, 1188 (10th Cir. 2002)). Finally, we review for

abuse of discretion a district court’s decision to deny a motion for

reconsideration. See Price v. Philpot, 420 F.3d 1158, 1167 n.9 (10th Cir. 2005).

      Having review ed the briefs, the record, and the applicable law pursuant to

the above-mentioned standards, we hold that the district court gave plaintiffs

adequate time to respond to the show cause order and that it did not abuse its

discretion by denying plaintiffs an evidentiary hearing, by dismissing their case as

a sanction, or by denying their motion for reconsideration. Further, we reject

plaintiffs’ contention that the district court misapplied the Ehrenhaus factors, and

hold that plaintiffs have not otherwise identified any reversible error in this case. 3



3
      W e stress, as did the district court, that:

      a litigant is bound by the actions of its attorney, and the relative
      innocence of the litigant with respect to the attorney’s failure does
      not constitute grounds for relief in this context. See Gripe v. City of
                                                                         (continued...)

                                           -4-
Accordingly, we AFFIRM the judgment of the district court for substantially the

same reasons as stated in its thorough orders of December 28, 2005,

January 20, 2006, and M ay 19, 2006.


                                                      Entered for the Court


                                                      M onroe G. M cKay
                                                      Circuit Judge




3
    (...continued)
          Enid, 312 F.3d 1184, 1188-89 (10th Cir. 2002). To the extent that
          Plaintiffs would have a meritorious claim but for the misconduct of
          their attorney, a proper remedy may be afforded through a legal
          malpractice claim rather than continued litigation against Defendants.
          See id.

Aplt. App. at 221-22 (citing Gripe, 312 F.3d at 1188-89).

                                           -5-
