                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUL 19 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    ROBERT L. DIMOND,

                Plaintiff-Appellant,

    v.                                                   No. 99-2304
                                                  (D.C. No. CIV-96-1013-JP)
    ALLSUP’S CONVENIENCE                                  (D. N.M.)
    STORES, INC.,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before BRORBY , ANDERSON , and MURPHY , 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      This order and judgment is not binding precedent, except under the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 Robert Dimond, appearing      pro se , appeals an order of the district

court dismissing his 42 U.S.C. §§ 12101-12213 Americans with Disabilities Act

(ADA) complaint under Fed. R. Civ. P. 41(b) for failure to prosecute. The

district court dismissed plaintiff’s complaint on January 12, 1998, for failure to

appear in court for his previously scheduled jury trial. On appeal, we reversed

and remanded the case because the district court did not state on the record why

dismissal of the action was the appropriate sanction for Mr. Dimond’s failure to

prosecute. See Dimond v. Allsup’s Convenience Stores, Inc.       , Nos. 98-2043,

98-2195, 1999 WL 360171, at **2 (10th Cir. June 4, 1999) (unpublished; citing

Ehrenhaus v. Reynolds , 965 F.2d 916, 921-22 (10th Cir. 1992) and       Mobley v.

McCormick , 40 F.3d 337, 340 (10th Cir. 1994)). “We express[ed] no view on the

outcome after adequate evaluation of these factors.”      Id. at **3.

      On remand, the district court thoroughly analyzed the actions of Mr.

Dimond in accordance with the requirements set forth in      Ehrenhaus . See id., 965

F.2d at 921 (listing relevant factors for consideration). The district court found

that Mr. Dimond’s failure to comply with appearance at trial prejudiced the

defendants and that his failure to appear interfered with the judicial process.

Further, the court found that Mr. Dimond was highly culpable for his failure to

appear, and that he had sufficient knowledge and warning his failure to appear at

trial might result in dismissal. Although Mr. Dimond was not expressly warned


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his failure to appear at trial could result in dismissal, the district court found he

was undoubtedly aware that the court could utilize this sanction. Finally, the

district court considered but rejected the efficacy of lesser sanctions.

      We have reviewed the entire record on appeal. The record supports the

district court’s factual findings and its analysis of the relevant factors.

Accordingly, the district court’s order of dismissal did not amount to an abuse of

discretion.

      Mr. Dimond also appeals the district court’s denial of his motion to

disqualify the judge assigned to his case. Nothing in the district court’s rulings in

this case provides a reasonable basis from which to infer partiality. The assigned

judge properly denied the motion to disqualify.

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

Mexico is AFFIRMED. The mandate shall issue forthwith.



                                                       Entered for the Court



                                                       Stephen H. Anderson
                                                       Circuit Judge




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