                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                            SEP 3 2004
                              FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    CHERYL R. RICHARDSON,

                  Plaintiff-Appellant,

    v.                                                   No. 03-1423
                                                 (D.C. No. 01-MK-2438 (OES))
    SAFEWAY, INC.,                                         (D. Colo.)

                  Defendant-Appellee.


                              ORDER AND JUDGMENT          *




Before ANDERSON and BALDOCK , Circuit Judges, and             MARTEN , ** District
Judge.



         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      This order and judgment is not binding precedent, except under the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.
**
      The Honorable J. Thomas Marten, District Judge, United States District
Court for the District of Kansas, sitting by designation.
       Plaintiff-appellant Cheryl R. Richardson, appearing pro se, appeals the

order entered by the district court dismissing her complaint with prejudice

pursuant to Fed. R. Civ. P. 37(b)(2)(C) and 41(b). Our jurisdiction arises under

28 U.S.C. § 1291. We affirm.

       In December 2001, plaintiff filed a complaint against her former employer,

defendant-appellant Safeway, Inc., alleging that Safeway had discriminated

against her in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e et seq. On July 14, 2003, the district court, after thoroughly analyzing

the factors set forth in       Ehrenhaus v. Reynolds , 965 F.3d 916 (10th Cir. 1992),

entered an order finding that plaintiff had deliberately failed to comply with her

obligations under Fed. R. Civ. P. 26(a) and 33(b) to provide certain discovery

materials to Safeway.      1
                               As a sanction for plaintiff’s failure to comply with her

discovery obligations, the district court ordered plaintiff to pay the costs and

reasonable attorney’s fees that Safeway had incurred in preparing a motion for

sanctions.   2
                 Specifically, the court informed plaintiff of the following:

1
       We note that, in his recommendation to the district court, the magistrate
judge also thoroughly analyzed the      Ehrenhaus factors. See Aplee. Br., Tab 2
at 7-12. After reviewing the matter de novo, the district court adopted “the same
findings and conclusions as to each of the [    Ehrenhaus ] factors as were reached by
[the magistrate judge],” with the exception of the magistrate judge’s conclusion
that a sanction less extreme than dismissal would not effectively remedy the harm
caused by plaintiff’s conduct.    Id. , Tab 3 at 4, 7.
2
       As additional sanctions for plaintiff’s discovery violations, the district
                                                                        (continued...)

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       Within ten days of the date of this order, the Defendant shall file
       with the Court a notice, supported by appropriate evidence, setting
       forth details as to the reasonable attorney’s fees and other costs it
       expended in making the Motion for Sanctions. Upon the Defendant’s
       filing, the Plaintiff shall have 10 days to file any objections to the
       amount requested by the Defendant. The Court will thereafter enter a
       supplemental order setting forth the amount the Plaintiff must pay
       and directing her to make payment within ten days.      The Plaintiff is
       advised that failure to make payment when directed by the Court will
       result [in] dismissal of this action.

Aplee. Br., Tab 3 at 6.

       Subsequently, on August 14, 2003, after considering the notice that had

been submitted by counsel for Safeway, the district court entered an order

imposing a monetary sanction on plaintiff in the amount of $2,107.00. The court

further informed plaintiff of the following:

       Given the Plaintiff’s economic circumstances, the Court will grant
       the Plaintiff some additional time to render payment. The Plaintiff
       shall, within 20 days of this Order, tender a check to Defendant’s
       counsel in the amount of $2,107.00, and simultaneously file an
       affidavit with the Court affirming her compliance with the sanction
       order. The Plaintiff is advised that failure to strictly comply with
       this order will result in dismissal of her case.

Id. , Tab 5 at 3-4.




2
 (...continued)
court also ordered that: (1) plaintiff would be prohibited at trial from setting forth
any claim or assertion that she did not previously disclose; and (2) the court
would give an appropriate adverse inference jury instruction at trial concerning
plaintiff’s loss of relevant documents. These additional sanctions are not at issue
in this appeal, however, and we will therefore not address them.

                                          -3-
       Plaintiff failed to pay the $2,107.00 sanction within the twenty-day period

set by the district court. As a result, on September 12, 2003, the district court

entered an order dismissing plaintiff’s complaint with prejudice, citing Fed. R.

Civ. P. 37(b)(2)(C) and 41(b) to support the dismissal.     See Aplee. Br., Tab 6 at 2.

       We begin our analysis of this appeal by noting that the district court did not

dismiss plaintiff’s complaint under Rule 37(b)(2)(C) as a sanction for plaintiff’s

“fail[ure] to obey an order to provide or permit discovery.” Fed. R. Civ. P.

37(b)(2). Instead, as set forth above, the district court initially imposed a

monetary sanction on plaintiff for her failure to provide certain discovery

materials to Safeway in accordance with Rules 26(a) and 33(b), and the basis for

the monetary sanction was Rule 37(c) and (d), both of which incorporate by

reference the remedies set forth in Rule 37(b)(2)(A) through (C). Then, after

plaintiff failed to pay the monetary sanction, the district court dismissed

plaintiff’s complaint as a sanction for her failure to comply with the order

directing payment of the monetary sanction. Thus, while plaintiff’s discovery

violations and the provisions of Rule 37(b)(2), (c), and (d) provided the

underpinning for the dismissal order, we will treat the dismissal order itself as

arising under Rule 41(b).   See Fed. R. Civ. P. 41(b) (providing that an action may

be involuntarily dismissed “[f]or failure of the plaintiff . . . to comply with . . .

any order of court”).


                                            -4-
       We review the district court’s dismissal order for an abuse of discretion.

See Gripe v. City of Enid, Okla.       , 312 F.3d 1184, 1188 (10th Cir. 2002). “It is

within a court’s discretion to dismiss a case [under Rule 41(b)] if, after

considering all the relevant factors, it concludes that dismissal alone would

satisfy the interests of justice.”      Id. (quoting Ehrenhaus , 965 F.2d at 916, 918).

               Before imposing dismissal as a sanction, a district court should
       ordinarily evaluate the following factors on the record: “(1) the
       degree of actual prejudice to the [other party]; (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.” [ Ehrenhaus , 965 F.2d] at
       921. . . . Although Ehrenhaus involved sanctions for discovery
       violations, we have held that “Rule 41(b) involuntary dismissals
       should be determined by reference to the     Ehrenhaus criteria.”
       Mobley v. McCormick , 40 F.3d 337, 341 (10th Cir. 1994).

Id.

       As noted above, this case involves somewhat of a unique situation because

the district court’s dismissal order was preceded by a discovery sanction that the

court had imposed after performing a detailed analysis of the        Ehrenhaus criteria,

and the court did not reevaluate the       Ehrenhaus criteria on the record when it

entered the dismissal order.         See Aplee. Br., Tab 6. Given the circumstances of

this case, however, we conclude that the district court was not required to

reevaluate the Ehrenhaus criteria on the record. Most importantly, once plaintiff

failed to pay the monetary sanction, the only issue before the district court under


                                                -5-
Ehrenhaus was whether there was an appropriate lesser sanction than dismissal.

And, given plaintiff’s history of noncompliance with respect to the discovery

rules and the sanction order, it is readily apparent from the record that the district

court did not abuse its discretion in dismissing this action after plaintiff failed to

comply with the sanction order.

      Plaintiff has failed to identify any meritorious ground for overturning the

district court’s dismissal order. First, for the reasons set forth above, we reject

plaintiff’s claim that the dismissal order was defective because it was not

preceded by an order “to provide or permit discovery” under Rule 37(b)(2).

Second, we will not consider plaintiff’s conclusory assertions to the effect that

Safeway also failed to comply with its obligations under the discovery rules,

because Safeway’s conduct is not at issue in this appeal. Third, a district court’s

discretionary authority to dismiss an action under Rule 41(b) is not limited by a

party’s right to a jury trial under the Seventh Amendment, as it is axiomatic that a

party does not have a right to a jury trial if a dismissal sanction is properly

imposed. As a result, it is immaterial that plaintiff filed a demand for a jury trial

during the district court proceedings. Fourth, because this case did not proceed to

a bench trial, the district court was not required to make findings of fact and

conclusions of law in accordance with Fed. R. Civ. P. 52(a). Finally, we see no

basis for granting plaintiff declaratory relief, and we therefore decline to remand


                                           -6-
this matter to the district court for entry of a declaratory judgment under Fed. R.

Civ. P. 57.

      The district court’s dismissal order is AFFIRMED. Plaintiff’s motion for

leave to proceed in this appeal in forma pauperis is GRANTED. Safeway’s

motion to strike plaintiff’s opening brief is DENIED.


                                                     Entered for the Court


                                                     Stephen H. Anderson
                                                     Circuit Judge




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