                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                September 14, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT




    YASLAM M. ISSA,

                Plaintiff-Appellant,

    v.                                                  No. 10-4064
                                                (D.C. No. 2:09-CV-00890-TC)
    FOX RENT A CAR,                                       (D. Utah)

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before TYMKOVICH, BALDOCK, and HOLMES, Circuit Judges.



         After plaintiff Yaslam M. Issa was fired from his job with defendant

Fox Rent A Car (Fox), an attorney representing Mr. Issa filed a Title VII action

against Fox in Utah. Less than a month later, the district court allowed Mr. Issa’s

attorney to withdraw from the case with Mr. Issa’s consent, giving Mr. Issa

twenty days to either hire new counsel or announce his decision to continue


*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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 with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
pro se. Two months later, after Mr. Issa failed to do either, Fox moved for

dismissal of the case for failure to prosecute. Mr. Issa failed to respond to Fox’s

motion.

      Three months later the court entered its order under Federal Rule of Civil

Procedure 41(b) dismissing Mr. Issa’s complaint without prejudice and without

awarding costs or fees to either party. The dismissal was based on Mr. Issa’s

failure to prosecute or comply with the rules of civil procedure, and the court

entered “CASE CLOSED” in the docket entry for the dismissal. Five days later,

Mr. Issa filed what he entitled an “Appeal letter” with the court. R., Doc. 11 at 1.

The court took this as a notice of appeal.

      In considering Mr. Issa’s appeal, we first briefly examine our jurisdiction.

We initially note that the court’s dismissal order stated that “Plaintiff’s Complaint

is dismissed without prejudice,” R., Doc. 10, at 2, and that “in this circuit,

whether an order of dismissal is appealable generally depends on whether the

district court dismissed the complaint or the action.” Moya v. Schollenbarger,

465 F.3d 444, 448-49 (10th Cir. 2006) (quotation omitted). “A dismissal of the

complaint is ordinarily a non-final, nonappealable order (since amendment would

generally be available), while a dismissal of the entire action is ordinarily final.”

Id. at 449 (quotation omitted). Nevertheless, even when a dismissal order appears

on its face to dismiss the complaint, we “scrutinize [such dismissals] closely in




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order to pinpoint those situations wherein, in a practical sense, the district court

by its order has dismissed a plaintiff’s action as well.” Id. (quotation omitted).

      Here, it is clear that the district court’s intent was to dismiss the entire

action. First, while the court’s order facially dismissed only the complaint

without prejudice, we note that the most reasonable explanation for this fact was

that the court used the form order provided by counsel–which originally

dismissed the complaint “with prejudice,” inserted the word “without” for the

word “with,” and initialed the change. R., Doc. 10, at 2. Such an explanation

would also explain the “CASE CLOSED” found in the dismissal docket entry. Id.

      Second, and more importantly, the main reason for the dismissal was that,

after his counsel withdrew, Mr. Issa ceased prosecution of his case, failing to

even respond to the motion to dismiss. Further, the motion to dismiss argued that

Mr. Issa had a history of filing lawsuits against former employers with the court

and then failing to prosecute those claims. 1 Where a “district court’s grounds for

dismissal are such that the defect cannot be cured through an amendment to the

complaint, that dismissal (even if it is . . . nominally of the complaint) is for

practical purposes of the entire action and therefore final.” Moya, 465 F.3d

at 450-51; see also Petty v. Manpower, Inc., 591 F.2d 615, 617 (10th Cir. 1979)



1
      The docket reflects that the court sua sponte transferred the case from the
magistrate judge who had been handling it to a district judge in anticipation that
Mr. Issa would not respond to the motion to dismiss.

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(holding that an order dismissing a complaint without prejudice for lack of

prosecution was final and appealable).

      Thus, we have jurisdiction over Mr. Issa’s appeal. Nevertheless, we must

affirm the dismissal. Generally, “[w]e review for an abuse of discretion an order

dismissing an action for failure to prosecute.” AdvantEdge Bus. Grp., L.L.C. v.

Thomas E. Mestmaker & Assocs., Inc., 552 F.3d 1233, 1236 (10th Cir. 2009).

Further, although “[w]hen dismissing a case without prejudice, a district court

may, without abusing its discretion, enter such an order without attention to any

particular procedures.” Id. (quotation omitted), the court here specifically

considered the list of factors laid out in Ehrenhaus v. Reynolds, 965 F.2d 916, 921

(10th Cir. 1992), and found that they weighed in favor of dismissal without

prejudice.

      But we need not proceed to examine the district court’s decision, because

neither Mr. Issa’s handwritten pro se “Appeal letter,” nor his pro se appellate

brief, even address his failure to prosecute his case after his attorney withdrew.

They both simply argue the merits of his complaint, despite the fact that those

merits were never reached. Although Mr. Issa is appearing pro se, and we thus

construe his appellate brief liberally, we cannot assume the role of his advocate,




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see Merryfield v. Jordan, 584 F.3d 923, 924 n.1 (10th Cir. 2009), and we

certainly cannot manufacture arguments that he has not presented.

      The judgment of the district court is AFFIRMED.


                                                  Entered for the Court



                                                  Timothy M. Tymkovich
                                                  Circuit Judge




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