                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          JUL 13 2004
                                    TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk

 MARY JULIA HOOK,

          Petitioner - Appellant,
                                                       No. 03-9006
 v.                                           (T.C. Nos. 8747-00 & 11725-02)

 COMMISSIONER OF INTERNAL
 REVENUE,

          Respondent - Appellee.


                             ORDER AND JUDGMENT *


Before KELLY, HENRY, and TYMKOVICH, Circuit Judges. **


      Petitioner Mary Julia Hook, a lawyer appearing pro se, appeals from the

United States Tax Court’s (1) dismissal of her and her husband’s joint

consolidated tax cases for failure to prosecute, (2) consolidation of her and her

husband’s tax cases involving different time periods, and (3) issuance of various


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
scheduling orders. We have jurisdiction pursuant to 26 U.S.C. § 7482, and we

affirm.

      The parties are familiar with the facts and we need not restate them here.

Suffice it to say that Ms. Hook and her husband David Lee Smith (collectively

“Taxpayers”) filed two petitions with the Tax Court contesting the

Commissioner’s determination that they owed additional federal income taxes for

1992, 1993, and 1994 (Case I), and 1995 and 1996 (Case II). I R. Doc. 1; II R.

Doc. 2. 1 Case I was originally set for trial on September 10, 2001, but was

continued, at Taxpayers’ request, after a hearing. I R. Docs. 4, 10. Following

four days of trial between May 2, 2002, and August 19, 2002, I R. Docs. 25, 49,

50, 59; several additional continuances at taxpayers’ request, I R. Docs. 6, 59 at

430-31; and the consolidation of the first case with the more recently filed second

case, I R. Doc. 68; II R. Doc. 10; Taxpayers failed to appear at the resumption of

the trial scheduled for May 19, 2003, I R. Doc. 80 at 1. Taxpayers had filed an

emergency motion to strike and reset the trial date on May 16, 2003. I R. Doc.

75. Taxpayers neglected to notify their ten witnesses under subpoena who did

appear at the trial setting along with one witness on behalf of the Commissioner.

I R. Doc. 80 at 11-12. Ms. Hook claims that she and her husband missed the trial


      1
        “I R. Doc.” references are to the documents in the original record of the
first case, Tax Court No. 8747-00; and “II R. Doc.” references are to the
documents in the original record of the second case, Tax Court No. 11725-02.

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setting because “they were both very, very sick.” Aplt. Br. at 26. After

permitting the taxpayers to show cause, the tax court then dismissed the

consolidated cases for failure to properly prosecute, I R. Doc. 82; II R. Doc. 24,

and entered a decision in the amounts requested by the Commissioner for each

year, I R. Doc. 83; II R. Docs. 25.

      We review the dismissal for failure to prosecute for an abuse of discretion.

Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994). “The authority of a court

to dismiss . . . for lack of prosecution has generally been considered an ‘inherent

power,’ governed not by rule or statute but by the control necessarily vested in

courts to manage their own affairs so as to achieve the orderly and expeditious

disposition of cases.” Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962).

Dismissal for failure to prosecute is a severe sanction, and thus should be

imposed only after the careful exercise of judicial discretion. DeBardeleben v.

Quinlan, 937 F.2d 502, 504 (10th Cir. 1991). However, it is nevertheless an

appropriate sanction against a party who disregards court orders and fails to

proceed as required by court rules. Nat’l Hockey League v. Metro. Hockey Club,

Inc., 427 U.S. 639, 642 (1976).

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

described the following five factors that are relevant in determining whether a

court abused its discretion in dismissing a case:


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      (1) the degree of actual prejudice to the [Commissioner]; (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. Only
      when the aggravating factors outweigh the judicial system’s
      strong predisposition to resolve cases on their merits is dismissal
      an appropriate sanction.

(internal quotation marks and citations omitted). Upon our review of the record

and these five factors, we conclude that the Tax Court did not abuse its discretion.

      First, Taxpayers’ repeated failure to comply fully with the tax court’s

orders requiring adequate pretrial preparation and stipulations not only resulted in

delay, but also wasted the Commissioner’s time and impeded efforts to resolve

these matters on the merits. Second, Taxpayers’ failure to comply with the tax

court’s orders wasted the tax court’s time and borders on contumacious behavior.

No court, including the tax court, is required to tolerate conduct that disrupts the

orderly administration of justice and hinders the court’s management of its

docket. The fact that Taxpayers’ ten witnesses showed up for the continuation of

the trial reflects a lack of consideration for and attention to obvious

consequences.

      Third, despite Ms. Hook’s claims that she and her husband were “very, very

sick” on the May 19 trial date, the tax court is entitled to great deference in its

findings on credibility, McGoffin v. Barnhart, 288 F.3d 1248, 1254 (10th Cir.

2002), and it is clear that the tax court did not find her excuses to be credible, I R.

                                          -4-
Doc. 82 at 15. Moreover, Ms. Hook has not offered reasonable explanations for

her other failures to comply with the court’s orders.

      Fourth, the tax court had threatened at least once to dismiss the case for

Taxpayers’ failure to comply with its orders and be prepared for trial, I R. Doc.

25 at 16; and no fewer than three orders setting these cases for trial contained the

following statement: “YOUR FAILURE TO APPEAR MAY RESULT IN

DISMISSAL OF THE CASE AND ENTRY OF DECISION AGAINST YOU,” I

R. Docs 4, 15; II R. Doc. 4.

      Finally, Ms. Hook has not addressed the efficacy of lesser sanctions, other

than to say that there were unspecified sanctions short of dismissal that could

have been imposed. Aplt. Br. at 27. The tax court had already attempted to

remedy Taxpayers’ failure to prepare for trial by issuing additional, more specific

orders and by giving more time. Given that Taxpayers consistently failed to obey

the court’s orders, there is no reason to believe that lesser sanctions would have

been effective. The tax court did not abuse its discretion in dismissing the

consolidated case for failure to prosecute.

      Ms. Hook also argues that the tax court abused its discretion by issuing

orders that

      (1) consolidated two tax appeals, filed two years apart and at very
      different stages of factual complexity and preparation; (2) used
      the consolidation of Docket Nos. 8747-00 and 11725-02 to force
      an unfair and unrealistic timetable on Ms. Hook and her husband

                                    -5-
      for the trial of Docket No. 11725-02; (3) changed the original
      May 12, 2003 trial date for the consolidated docket approximately
      two weeks before the previously scheduled date, thereby forcing
      Ms. Hook to cancel long-scheduled client matters . . . ; and (4)
      treated Ms. Hook’s and her husband’s serious illnesses in mid-
      May of 2003 as if they were non-existent . . . .

Aplt. Br. at 28. We have thoroughly reviewed the record in this case and do not

find any of the tax court’s above-referenced decisions to be an abuse of

discretion.

      AFFIRMED.

                                      Entered for the Court


                                      Paul J. Kelly, Jr.
                                      Circuit Judge




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