                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         October 21, 2005
                             FOR THE TENTH CIRCUIT
                                                                           Clerk of Court


    RICHARD SANTISTEVAN,

                 Plaintiff-Appellant,
     v.                                                  No. 04-1513
                                                  (D.C. No. 03-MK-476 (OES))
    COLORADO SCHOOL OF MINES, a                            (D. Colo.)
    body corporate,

                 Defendant-Appellee.


                             ORDER AND JUDGMENT            *




Before HENRY, ANDERSON , and TYMKOVICH , Circuit Judges.




          After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 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      This order and judgment is not binding precedent, except under the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.
      Plaintiff Richard Santistevan appeals from the district court’s dismissal of

his complaint with prejudice for failure to prosecute. He also appeals the district

court’s denial of his postjudgment motion for reconsideration. We affirm.

                                  BACKGROUND

      Plaintiff filed a Title VII national origin discrimination and retaliation

complaint against his employer, the Colorado School of Mines, in March 2003.

Shortly thereafter, plaintiff’s counsel sought to withdraw because plaintiff failed

to keep in contact or communication with his attorney. Plaintiff renewed contact,

and the attorney withdrew the motion. The district court entered a trial setting

order that set a final trial preparation conference (FTP Conference) for October 5,

2004, and referred pretrial matters to a magistrate judge.

      On October 10, 2003, plaintiff’s counsel again moved to withdraw because

of plaintiff’s failure to maintain contact or communication with him. The motion

was granted on November 10, 2003, and notice was sent to plaintiff at his address

on record with the court. Defendant attempted unsuccessfully to contact plaintiff

in November 2003, to schedule his deposition. Plaintiff did not attend a

scheduled settlement conference on December 2, 2003, and the magistrate judge

entered an order to show cause why the case should not be dismissed. Plaintiff

did not respond, and the magistrate judge filed a report and recommendation




                                         -2-
(“R&R”) that the action be dismissed for failure to prosecute. Plaintiff did not

file objections to the R&R.

      Three months later, on March 15, 2004, plaintiff’s counsel re-entered his

appearance, stating that plaintiff had been incarcerated at the time of the

settlement conference in December and had since been released. Plaintiff moved

to file a late response to the order to show cause, to vacate the final pretrial

conference, and to amend the scheduling order. The magistrate judge initially

agreed to amend the scheduling order.

      Defendant moved for reconsideration, however. It argued that plaintiff

should have notified the court of his prison address, thus, his incarceration did not

excuse his failure to respond to the magistrate judge’s show cause order and the

R&R. The magistrate judge vacated the amended scheduling order and stated in

his order that “[n]o further action will be taken in this case until after [the district

court] has ruled on the Recommendation for Dismissal . . . .” Aplt. App. at 68

(the “No-Further-Action Order”). In July 2004, plaintiff filed a motion requesting

the district court rule on the R&R.

      On the date set for the FTP Conference, October 5, 2004, defendant’s

counsel appeared in court, but plaintiff’s counsel did not. The court’s deputy

reported that plaintiff’s counsel stated he was unaware of the FTP Conference,

was not prepared to attend, and would accept any sanction issued by the court.


                                           -3-
After hearing argument from defendant’s counsel, and making findings of fact

and conclusions of law on the record, the district court dismissed plaintiff’s

complaint with prejudice for failure to prosecute, as authorized by Fed. R. Civ. P.

41(b).

         Plaintiff filed a motion for reconsideration within ten days of the dismissal,

stating in an affidavit that he had told the court’s deputy that he was unaware of

the FTP Conference because he believed the case had been abated pursuant to the

No-Further-Action Order, pending a ruling on the R&R. The district court denied

the motion for reconsideration. The district court first noted that the schedule it

set in its trial setting order had never been modified, and it was unreasonable for

counsel to assume the magistrate judge had authority to override the district

court’s scheduling order. Second, the FTP conference was listed on the district

court’s docket, thus, plaintiff’s counsel could easily have ascertained that the

conference was still scheduled by calling the court’s clerk or checking the docket

posted on the court’s website. Further, the trial setting order permits modification

only by timely application therefor, which plaintiff did not make. Third, because

the trial setting order states that all outstanding motions will be determined at the

FTP conference, counsel should have understood the district court would rule

upon the outstanding recommendation to dismiss at that conference. Finally, the

district court expressed its belief that diligent counsel would not have merely


                                            -4-
offered to accept sanctions when informed of the conference, but would have

requested a brief continuance or requested to appear by telephone.

                                       ANALYSIS

       On appeal, plaintiff contends the district court abused its discretion in

dismissing the action for failure to prosecute and committed legal error and

abused its discretion in denying his motion for reconsideration.

                   A. DISMISSAL FOR FAILURE TO PROSECUTE

       Governing Standards . The Federal Rules of Civil Procedure permit a

district court to exercise its discretion to dismiss an action “for failure of the

plaintiff to prosecute or to comply with . . . any order of court.” Fed. R. Civ. P.

41(b); see also Gripe v. City of Enid , 312 F.3d 1184, 1188 (10th Cir. 2002)

(holding that district courts have discretion to dismiss case as sanction for failing

to appear at pretrial or scheduling conference). “Because dismissal is such a

harsh sanction, it is appropriate only in cases of willfulness, bad faith, or some

fault of [the plaintiff].”   Chavez v. City of Albuquerque , 402 F.3d 1039, 1044

(10th Cir. 2005) (quotation and alteration omitted).

       A district court may dismiss an action under Rule 41(b) only after

considering whether certain factors support a dismissal. These factors, set forth

in Ehrenhaus v. Reynolds , 965 F.2d 916, 921 (10th Cir. 1992), include “(1) the

degree of actual prejudice to the defendant; (2) the amount of interference with


                                            -5-
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.”      Mobley v.

McCormick , 40 F.3d 337, 340 (10th Cir. 1994) (quotation and alteration omitted)

(applying Ehrenhaus factors to dismissal under Rule 41(b)).

       District Court’s Application of Ehrenhaus Factors      . The district court cited

and considered each of the   Ehrenhaus factors in its dismissal order. Because

defendant had been unable to complete its discovery, the district court found it

was prejudiced by plaintiff’s failure to notify the court of his prison mailing

address, to attend the settlement conference, to respond timely to the show cause

order and the R&R, and to appear at the FTP Conference. The court found the

judicial system was prejudiced by the complete lack of any meaningful

advancement in the case, as well as the time spent by the magistrate judge seeking

an explanation of plaintiff’s failure to appear and to respond. Further, the judicial

system was prejudiced when the district court had to conduct the FTP Conference

without the benefit of plaintiff’s counsel’s presence.

       Further, the district court found that plaintiff was clearly culpable for his

failure to appear and to respond, despite his pro se status, because the court’s

local rules obligated him to notify the court of his correct telephone number and

address where papers and pleadings could be served. Plaintiff was also fully


                                            -6-
responsible for the delays caused when he failed to keep in contact with his

attorney. The district court further ruled that plaintiff and his counsel bore the

full responsibility for not attending the FTP Conference because no order ever

modified or vacated that conference date.     See Gripe , 312 F.3d at 1189 (holding

that it is well established that client is held responsible for counsel’s inaction in

Rule 41(b) dismissals). Finally, the district court found that sanctions less than

dismissal would be ineffective because plaintiff had disregarded multiple court

orders and failed to comply with numerous local court rules, in particular the

failure to appear at the FTP Conference even after the magistrate judge had

recommended dismissal for failure to prosecute.

      Standard of Review . We will not disturb the district court’s dismissal

decision under Rule 41(b) absent an abuse of discretion.     Link v. Wabash R.R.

Co. , 370 U.S. 626, 633 (1962). “Under the abuse of discretion standard, a trial

court’s decision will not be disturbed unless the appellate court has a definite and

firm conviction that the lower court made a clear error of judgment or exceeded

the bounds of permissible choice in the circumstances.”     McEwen v. City of

Norman , 926 F.2d 1539, 1553-54 (10th Cir. 1991) (quotation omitted). We

conclude the district court did neither here; consequently, its dismissal without

prejudice was not an abuse of discretion.




                                            -7-
      Plaintiff’s Arguments on Appeal    . Plaintiff contends on appeal that the

district court abused its discretion in dismissing the case for failure to prosecute

based on his incarceration and his counsel’s failure to attend the FTP Conference,

which he characterizes as a single, unintentional incident. He contends there was

no pattern of deliberate delay and no willful failure to comply with court orders.

      Almost all of plaintiff’s arguments on appeal focus on magistrate judge’s

No-Further-Action Order. As noted above, plaintiff contends his counsel did not

appear at the FTP Conference because he believed the case was abated pursuant

to the No-Further-Action Order. He claims that his understanding of that order

was reasonable and in good faith, that the order lulled him into inaction, and that

his reliance on the order constitutes mistake and excusable neglect.

      We find support, however, for the district court’s conclusion that plaintiff

and his counsel bear full responsibility for failing to attend the FTP Conference.

While we have some sympathy for plaintiff’s argument that the No-Further-

Action Order was confusing, we cannot conclude that plaintiff’s counsel acted

reasonably in simply assuming that the scheduled FTP Conference had been

cancelled. The FTP Conference was set by district court order,    1
                                                                      had not been


1
      Plaintiff contends that the magistrate judge set the final trial preparation
conference, thus had authority to vacate it pursuant to the No-Further-Action
Order. This is not accurate. The district court set that conference in its June 20,
2003 Trial Preparation Order, and stated that the schedule could only be modified
                                                                        (continued...)

                                          -8-
vacated by any subsequent district court order, and had, as one of its stated

purposes, the resolution of outstanding motions. Further, the FTP Conference

was listed on the district court’s docket, publicly available on the court’s website.

Plaintiff’s counsel could easily have contacted the district court rather than

merely making the unwarranted assumption that the FTP Conference had been

cancelled. Counsel’s failure to confirm the status of the FTP Conference with the

court was particularly risky, given that the case was already subject to a R&R to

dismiss for failure to prosecute, that dismissal would be much more likely in the

event of any continued failure to comply with court orders, and that dismissal was

listed as a possible sanction for failing to attend the FTP Conference,   see Aplt.

App. at 24-25.

       More significantly, the district court did not base its dismissal only on

plaintiff’s failure to appear at the FTP Conference, but on plaintiff’s   complete

failure to prosecute the case, including his failure to provide the court with his

address, to attend two pretrial conferences, to respond to the show cause order,

and to file timely objections to the magistrate judge’s R&R. We disagree with

plaintiff’s statement that he only made the single mistake of not attending the FTP

Conference. See Aplt. Br. at 7. The district court was not faced with an isolated



1
 (...continued)
by timely written application to the court. Aplt. App. at 23-25.

                                             -9-
incident of negligence or noncompliance.      See Jones v. Thompson , 996 F.2d 261,

265 (10th Cir. 1993) (finding interference with judicial process where plaintiffs

“repeatedly ignored court orders and thereby hindered the court’s management of

its docket and its efforts to avoid unnecessary burdens on the court and the

opposing party”).

       Further, we find support for the district court’s finding of willful failure to

comply with court orders. Plaintiff was obligated by court rules to notify the

court of any address change, yet he failed to keep in contact with his attorney or

the court. Even a pro se litigant “must follow the same rules of procedure that

govern other litigants.”    Green v. Dorrell , 969 F.2d 915, 917 (10th Cir. 1992).

Plaintiff makes no attempt to justify his failure to provide his counsel or the court

with his address, be it a prison address or otherwise. And as noted above, the

FTP Conference was set pursuant to an unmodified district court order,

confirmable by a phone call to the court or by the publicly available district court

docket.

                           MOTION FOR RECONSIDERATION

       Plaintiff next contends the district court erroneously denied his motion for

reconsideration. He contends that the district court committed legal error by

treating it as motion to alter or amend the judgment under Fed. R. Civ. P. 59(e),




                                           -10-
and failing to treat it as motion for relief from judgment based on attorney

mistake or excusable neglect pursuant to Fed. R. Civ. P. 60(b).

       We recently held that district courts “should evaluate postjudgment motions

filed within ten days of judgment based on the reasons expressed by the movant,

not the timing of the motion.”     Jennings v. Rivers , 394 F.3d 850, 855 (10th Cir.

2005). In Jennings , the movant clearly asked the court to reopen the judgment

based on mistake, inadvertence, or excusable neglect – the reasons permitted

under Rule 60(b)(1) – but the district court limited its analysis to Rule 59(e),

which is normally granted only to correct manifest errors of law or to present

newly discovered evidence.       Id. at 854. Here, in contrast, plaintiff’s motion was

titled as a motion for reconsideration and never cited Rule 60(b) or used the terms

“mistake, inadvertence or excusable neglect,” or any other language invoking

Rule 60(b)’s subsections. It cannot be said, as was the case in    Jennings , that

plaintiff clearly sought relief under Rule 60(b). More critically, unlike the court

in Jennings , the district court in this case did address plaintiff’s implicit

arguments that the judgment should be reconsidered on grounds of mistake,

inadvertence, or excusable neglect. We find no legal error in the district court’s

treatment of the motion.

       Further, regardless of whether the motion is treated as a motion to alter or

amend under Rule 59 or a motion for relief from judgment under Rule 60(b), we


                                            -11-
do not find the court abused its discretion in denying the motion.    See Price v.

Philpot , 420 F.3d 1158, 1167 n.9 (10th Cir. 2005) (noting that this court reviews

a denial of either a Rule 59(e) or 60(b) motion only for abuse of discretion). “The

determination of whether neglect is excusable is at bottom an equitable one,

taking account of all relevant circumstances surrounding the party’s omission.”

Jennings , 394 F.3d at 856 (quotation omitted). Taking into account all such

circumstances, as discussed in detail above, we conclude the district court did not

abuse its discretion in not finding excusable neglect.

       We AFFIRM the district court’s dismissal of this action with prejudice

pursuant to Fed. R. Civ. P. 41(b).



                                                        Entered for the Court



                                                        Robert H. Henry
                                                        Circuit Judge




                                           -12-
