                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUN 22 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    BOBBY CROFT; KEVIN OWENS;
    AARON STIMPSON; and DANIEL
    ROBERTS,

                Plaintiffs-Appellants,                    No. 98-4104
                                                    (D.C. No. 96-CV-379-B)
    v.                                                     (D. Utah)

    ASSOCIATED FOOD STORES, INC.,

                Defendant-Appellee.




                            ORDER AND JUDGMENT            *




Before BRORBY , EBEL , and BRISCOE , 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      This order and judgment is not binding precedent, except under the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.
      Plaintiffs Bobby Croft, Kevin Owens, Aaron Stimpson, and Daniel Roberts,

appeal the district court’s orders (1) granting summary judgment on plaintiffs’

employment discrimination claims in favor of defendant Associated Food Stores,

Inc., and (2) denying plaintiffs’ motion to reconsider. We affirm.

      Plaintiffs, who are African-Americans, worked as “lumpers” between 1994

and 1996, unloading independent truckers’ deliveries at defendant’s warehouse.

In June 1996, plaintiffs brought this action, alleging, inter alia, that defendant

discriminated against them based on their race in violation of Title VII of the

Civil Rights Act of 1964.   1



      On October 15, 1997, defendant moved for summary judgment on the

ground that plaintiffs were independent contractors and could not, therefore,

maintain a Title VII action. Plaintiffs did not file their response when due, but

instead requested and received an extension of time until November 17, 1997.

Plaintiffs failed to meet this deadline. On November 21, 1997, plaintiffs filed a

motion for extension of time until November 30, 1997. Plaintiffs again failed to

meet the deadline. On December 15, 1997, after reviewing defendant’s motion

and supporting evidence, the district court found good cause for granting the




1
      Although plaintiffs’ complaint contained other claims and other defendants,
they appeal only the grant of summary judgment on their Title VII claim in favor
of defendant Associated Food Stores, Inc.

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motion for summary judgment. On December 16, 1997, plaintiffs attempted to

file their response to the summary judgment motion.

       On December 29, 1997, plaintiffs filed a motion for relief from the

summary judgment order, and on January 7, 1998, they filed a motion to

reconsider. The matter was set for a hearing, at which plaintiffs’ attorney failed

to appear. Thereafter, the district court found that plaintiffs had not shown

extraordinary circumstances meriting relief from the summary judgment order,

and that, in any case, the evidence submitted in plaintiffs’ response would not

have changed the outcome of the case.

       We review the district court’s grant of summary judgment de novo and

apply the same legal standard as the district court.     See Wolf v. Prudential Ins.

Co. of Am. , 50 F.3d 793, 796 (10th Cir. 1995). Summary judgment is appropriate

if there is “no genuine issue as to any material fact and . . . the moving party is

entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). We review the

court’s denial of plaintiffs’ motion to reconsider for an abuse of discretion.    See

Herr v. Heiman , 75 F.3d 1509, 1515 n.1 (10th Cir. 1996).

       Plaintiffs argue first that the district court erred in granting summary

judgment based on District of Utah Local Rule 56-1(a), because a rule authorizing

summary judgment on any ground other than the absence of a genuine issue of

fact and legal entitlement violates Fed. R. Civ. P. 56. Several courts have held


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that summary judgment may not be granted as a sanction for a party’s failure to

respond, but may be granted only when the moving party’s evidence itself

demonstrates no genuine issue of fact and entitlement to judgment.      See, e.g. ,

Tobey v. Extel/JWP, Inc. , 985 F.2d 330, 332 (7th Cir. 1993) (holding summary

judgment could not be granted as a sanction);    Henry v. Gill Indus., Inc. , 983 F.2d

943, 950 (9th Cir. 1993) (holding local rule authorizing summary judgment as

sanction for failure to respond, without regard to merits, impermissibly violated

Fed. R. Civ. P. 56).

      Here, however, the district court did not grant summary judgment as a

sanction. Instead, after noting that plaintiffs had not disputed any of defendant’s

facts, the district court held that defendant’s evidence itself raised no issue of

material fact and that defendant was entitled to judgment as a matter of law. This

approach is consonant with Fed. R. Civ. P. 56(e), which authorizes entry of

summary judgment “if appropriate,” when a nonmoving party fails to respond to a

properly supported summary judgment motion.

      Further, we agree with the district court that defendant’s undisputed

evidence shows that plaintiffs were not “employees” as a matter of law. Plaintiffs

negotiated the terms of their contracts, including price and hours, with the

independent truckers. They contracted out their services to the truckers under

their own business names. Defendant did not pay plaintiffs; did not require them


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to work particular hours, or for that matter, to work at all; did not provide

benefits, and did not regulate how plaintiffs did their work.   See Lambertsen v.

Utah Dep’t of Corrections , 79 F.3d 1024, 1028 (10th Cir. 1996) (adopting test to

determine employment relationship which looks mainly at right to control “means

and manner” of worker’s performance, but considers other factors as well).

Finally, to obtain lumping privileges at the warehouse, each plaintiff signed a

policy acknowledging that they were not employees of defendant.

       Plaintiffs point to the fact that they were required to obtain a lumper card

from defendant; that certain conduct was required of them; and that their lumping

privileges could be suspended or revoked by defendant. Although defendant

controlled certain rudimentary aspects of plaintiffs’ conduct while on defendant’s

property, this was not the degree of control necessary to create an employer-

employee relationship.    See id. at 1026, 1028-29 (holding as a matter of law that

controlling worker’s entry, reviewing classroom materials for security threats,

investigating worker’s background, and requiring adherence to code of conduct

within facility, did not create employment relationship with Department of

Corrections).

       Because defendant’s evidence did not raise a factual dispute regarding

plaintiffs’ employment status, but showed instead that plaintiffs were independent

contractors as a matter of law, summary judgment was properly granted. Further,


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plaintiffs have not shown the district court abused its discretion in denying their

motion to reconsider. Accordingly, the judgment of the United States District

Court for the District of Utah is AFFIRMED .



                                                     Entered for the Court



                                                     David M. Ebel
                                                     Circuit Judge




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