                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                            JUN 15 2001
                              FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    ELMER PALMER,

                  Plaintiff-Appellant,

    v.                                                   No. 00-3289
                                                  (D.C. No. 99-CV-2576-JWL)
    SPRINT/UNITED MANAGEMENT                               (D. Kan.)
    SERVICES COMPANY; ROBERT
    THOMPSON; JOHN LAUSTER;
    SUSAN OTT,

                  Defendants-Appellees.



                               ORDER AND JUDGMENT         *




Before SEYMOUR , BRORBY , and BRISCOE , Circuit Judges.



         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      This order and judgment is not binding precedent, except under the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. 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 seeks review of the district court’s dismissal of his action against

Sprint, which alleges violations of Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e, et seq., and the Age Discrimination in Employment Act

(ADEA) 29 U.S.C. §§ 621-634(b). The court granted defendants’ motion to

dismiss, holding that plaintiff failed to show excusable neglect for not responding

to the motion. Alternatively, the court determined that plaintiff’s Title VII and

ADEA claims were barred by res judicata and that his retaliation claim was barred

for failure to exhaust administrative remedies. We review the district court’s

dismissal de novo, accepting as true all well-pleaded facts and viewing those facts

in a light most favorable to the non-moving party.     Maher v. Durango Metals, Inc. ,

144 F.3d 1302, 1304 (10th Cir. 1998).

       Plaintiff first filed suit against defendants in November 1996, claiming

violations of Title VII and the ADEA and racial discrimination in violation of

42 U.S.C. § 1981, arising out of his employment with Sprint. The district court

dismissed the Title VII and ADEA claims because plaintiff had failed to file the

action within the ninety-day time period specified in 42 U.S.C. § 2000e-5(f)(1).

Palmer v. Sprint , No. 96-2503-GTV, 1997 WL 383065, at *2 (D. Kan. June 18,

1997) ( Palmer I ), but denied defendant’s motion to dismiss the § 1981 claim.    Id.

at *2. The parties later stipulated to an order dismissing the § 1981 claim with

prejudice.

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       Plaintiff filed this action in December 1999, alleging essentially the same

violations and time frame, and stating that the EEOC had issued his right-to-sue

letter in August 1996. The district court ordered him to show cause why the

matter should not be dismissed as barred by his “failure to timely file suit within

90 days of receipt of his notice of right to sue.” R. doc. 5 at 3. In response,

plaintiff claimed defendants obtained the    Palmer I stipulated dismissal by making

false and misleading promises of professional placement services until he could be

placed in a comparable or higher position, and continued service with defendants

“as long as needed to remain gainfully employed.” R. doc. 10 at 2. Plaintiff also

claimed defendants misled him in retaliation for filing the 1996 complaint.

       Defendants moved to dismiss the complaint. They contended service of

process was improper and the action was barred by res judicata. With respect to

the retaliation claim, defendants asserted that plaintiff had failed to exhaust his

administrative remedies. Plaintiff did not timely respond to the motion to dismiss,

instead stating in his response to the show cause order that he “struggles with

meeting timeliness of filing all documents.” R. doc. 20 at 3. The district court

held that plaintiff had failed to establish excusable neglect for not responding to

the show cause order, but nonetheless alternatively considered the merits of

defendants’ motion to dismiss.




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       Citing King v. Union Oil Co. , 117 F.3d 443, 445 (10th Cir. 1997), the court

held that the issues raised were the same as those raised in the previous lawsuit

and were therefore barred by the doctrine of res judicata. The court also

determined that insofar as plaintiff asserted a retaliation claim based on

defendants’ alleged conduct in connection with the settlement underlying the

dismissal of Palmer I , plaintiff had failed to exhaust administrative remedies.

Finally, the court declined to exercise jurisdiction over plaintiff’s state law claims

for fraud or breach of contract based on the settlement agreement, dismissing

those claims without prejudice.

       On appeal, plaintiff recites that   the parties in Palmer I jointly moved to

dismiss pursuant to Rule 41. He claims when he determined that Sprint’s promise

of placement services was “illusory and that Sprint had no intention of having the

[plaintiff] placed in a new position,” he made efforts “to set aside the stipulation

and reinstate his original claim,”   Appellant’s Br. at 6, which he labels as filing

a “new petition to reinstate or reopen his original complaint,”    id. at 5-6.

       Plaintiff apparently recognizes that he “was precluded from filing a motion

under [Fed. R. Civ. P.] Rule 60(b) to vacate the [1997 judgment]” because that

action was dismissed more than a year before he filed his “independent action to

vacate the order.”   Id. at 10. Nonetheless, he asks us to vacate the district court’s




                                             -4-
dismissal of Palmer I , while also affirmatively stating that he is   not repleading

either the Title VII or ADEA claims dismissed as part of       Palmer I .

       Plaintiff is correct that Rule 60(b) does not provide a basis for reopening

the decision in Palmer I . Nor is there jurisdiction to enforce the settlement

agreement because the agreement was not embodied in the stipulated dismissal.

See Kokkonen v. Guardian Life Ins. Co. of Am.        , 511 U.S. 375, 380-82 (1994).

Absent reservation by the district court, “ancillary jurisdiction is unavailable to

enforce a settlement agreement; there must be an independent basis for federal

jurisdiction.”   Morris v. City of Hobart , 39 F.3d 1105, 1110-11 (10th Cir. 1994)

(citing Kokkonen ). Plaintiff has asserted no such independent basis; rather, it is

clear he wishes to revisit the earlier lawsuit, an action that was voluntarily

dismissed with prejudice.    See Appellant’s Br. at 15. We agree with the district

court that it lacked jurisdiction to simply vacate the 1997 dismissal and reinstitute

this action.

       The judgment of the United States District Court for the District of Kansas

is AFFIRMED . The mandate shall issue forthwith.


                                           Entered for the Court

                                           Stephanie K. Seymour
                                           Circuit Judge



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