                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          OCT 5 1998
                                  TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 In Re: RICHARD RAMSEY
 HOPKINS and CHERILYN BAKER
 HOPKINS,

      Debtors,
 ___________________________
                                                        No. 98-1186
 O’MELVENY & MYERS; GIBSON,
                                             (D.C. No. 97-AP-888 (Consolidated
 DUNN & CRUTCHER, LLP,
                                                with D.C. No. 97-AP-2263))
                                                         (D. Colo.)
          Plaintiffs-Appellees,

 v.

 RICHARD RAMSEY HOPKINS,

          Defendant-Appellant.


                             ORDER AND JUDGMENT *


Before BALDOCK, EBEL and MURPHY, Circuit Judges.




      *
       After examining appellant’s brief and the 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(f) and 10th Cir. R. 34.1.9.
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Judgment is not binding precedent, except under the doctrines of law of the case,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.
      Richard Ramsey Hopkins, proceeding pro se, appeals the district court’s

dismissal of his consolidated bankruptcy appeal for failure to prosecute in

accordance with the local rules and previous orders of the court. We reverse and

remand.

      On April 30, 1997, the district court held a pre-briefing conference on

Hopkins’ appeal of a grant of summary judgment in D.C. No. 97-AP-888

(“Appeal 1”), and issued a Minute Order specifying that “[t]he opening brief and

the response brief shall not exceed 10 pages in length.” (Dkt. # 48, Ex. A at 2,

Supp. Vol. VI.) On October 20, 1997, the district court held a pre-briefing

conference on Hopkins’ appeal of a grant of summary judgment in a related case,

D.C. No. 97-AP-2263 (“Appeal 2”), and again issued a Minute Order specifying

that the opening and response briefs should not exceed 10 pages. (Dkt. # 48, Ex.

B at 2, Supp. Vol. VI.) 1 On January 30, 1998, Hopkins filed two briefs in the

district court, one for each of his consolidated appeals. (Dkt. # 46 & 47, Vol. I.)

The brief in Appeal 1 was 19 pages single-spaced, (Dkt. # 46, Vol. I); the brief in

Appeal 2 was 8 pages single-spaced, (Dkt. # 47, Vol. I). The Appellees,

O’Melveny & Meyers and Gibson, Dunn & Crutcher LLP, moved to strike the

briefs, (Dkt. # 48, Supp. Vol. VI), and Hopkins responded with a request for




      The district court consolidated Appeal 1 and Appeal 2 on November 7,
      1

1997. (Dkt. # 31, Supp. Vol. V.)

                                        -2-
relief from the local rules, (Dkt. # 49, Supp. Vol. VI). On February 18, 1998, the

district court denied Hopkins’ request for relief from the local rules, and accepted

the recommendation of the magistrate judge that the briefs be stricken “for failure

to comply with D.C. Colo. LR 5.1F, which requires that all papers be double

spaced and for raising a new issue on appeal.” (Dkt. # 50 at 1-2; 51, Supp. Vol.

VI.) 2

         On March 2, 1998, Hopkins filed a motion to amend his briefs and attached

two amended briefs “in the event this request is granted.” (Dkt. # 54, Vol. I.)

The amended brief in Appeal 1 was 14 pages double-spaced and the amended

brief in Appeal 2 was 8 pages double-spaced. (Dkt. # 54, Ex. A & B, Vol. I.)

The amended brief in Appeal 1 retained the new issue, (see Aplt. Brief at 2), and

the amended brief in Appeal 2 incorporated by reference significant portions of

the amended brief in Appeal 1. (Dkt. # 54, Ex. B at 2, 3, 8, Vol. I.) On March

30, 1998, the magistrate judge issued a recommendation that Hopkins’ motion be

denied, and that Hopkins’ consolidated appeal be dismissed for failure to

prosecute “in accordance with the rules of this Court as set forth in the previous

orders of this Court.” (Dkt. # 57, Vol. I.) On April 14, 1998, the district court

adopted the magistrate judge’s recommendation and dismissed the appeal. (Dkt. #

60, Vol. I.)


         2
             D.C. Colo. LR 5.1F states: “All papers shall be double-spaced.”

                                            -3-
      We review the district court’s dismissal for failure to prosecute for abuse of

discretion. See Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994). Although

a district court has the inherent power to dismiss an action for failure to

prosecute, see Meade v. Grubbs, 841 F.2d 1512, 1520 (10th Cir. 1988), this court

has characterized dismissal with prejudice as an “extreme sanction,” and has

cautioned district courts to consider the following factors before choosing

dismissal: (1) the degree of actual prejudice to the defendant; (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.

Jones v. Thompson, 996 F.2d 261, 263 (10th Cir. 1993) (quoting Ehrenhaus v.

Reynolds, 965 F.2d 916, 920-21 (10th Cir. 1992)).

      We find several aspects of the district court’s dismissal troubling. First,

unlike in Ehrenhaus, the district court did not warn Hopkins that dismissal of his

claims would result from a further failure to comply with the local rules or court

orders. While such a warning is not always necessary, it is a factor which we

consider in determining whether the district court abused its discretion. See

Ehrenhaus, 965 F.2d at 919, 922. Second, the magistrate judge’s recommendation

to strike Hopkins’ first set of briefs, adopted by the district court in its order

striking the briefs, made no reference to the page limit set out in the previous


                                          -4-
orders, but instead pointed to Hopkins’ failure to comply with the local rule

requiring double-spacing, and to his raising a new issue. (See Dkt. # 50 at 1-2;

51 Supp. Vol. VI.) In light of this omission, which had the potential of

misleading Hopkins into thinking that the court would not strictly apply its page

limit, 3 Hopkins failure to adhere to the page limit after significantly shortening

his briefs does not appear quite so egregious. 4 Third, Hopkins’ amended briefs

cured the single-spacing defect explicitly enunciated in the magistrate judge’s

recommendation. Although Hopkins’ amended brief in Appeal 1 still retained the

new issue, the ordinary remedy for raising a new issue on appeal is not dismissal

but rather a refusal to consider the new issue, and a consideration only of those

issues properly raised. Fourth, and most importantly, the district court failed to

consider the Ehrenhaus factors in its dismissal. Rather, the district court merely

adopted the magistrate judge’s terse recommendation that the appeal be dismissed

      3
        However, despite the district court’s failure to reference its page limit as a
reason for striking Hopkins’ briefs, Hopkins did assume that the district court
struck them because of the court’s “desire to avoid lengthy briefs.” (Dkt. # 54,
Vol. I.)
      4
        Hopkins argues that the 8-page amended brief in Appeal 2 was “well
within the 10 page limits of the local rules.” (Aplt. Brief at 2.) However, since a
party cannot use incorporation by reference to circumvent the page requirements
for brief-writing, see Fleming v. Kane, 855 F.2d 496, 498 (7th Cir. 1988); Hooper
v. Tulsa County Sheriff Dep’t, 113 F.3d 1246, 1197 WL 295424, at * 4 n.4 (10th
Cir. 1997) (unpublished disposition), Hopkins’ amended brief in Appeal 2 would
exceed 10 pages once the references it incorporates from the amended brief in
Appeal 1, which itself exceeded the page limit, are taken into account. Thus, both
of Hopkins amended briefs exceeded the page limit.

                                         -5-
for failure to prosecute in accordance with the local rules as set forth in the

previous court orders. (Dkt. # 57, Vol. I.) While Ehrenhaus involved dismissal

as a discovery sanction under Rule 37(b)(2) of the Federal Rules of Civil

Procedure, see 965 F.2d at 920, we have adopted the Ehrenhaus standard for all

orders of dismissal, not just for those involving discovery disputes. See Mobley

v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994).

      In Mobley, where we reviewed a dismissal for failure to comply with an

order dismissing a previous suit, we stated that

             [t]he actions of the district court were simply not consonant with the
             dictates of Jones and Ehrenhaus. The trial court’s failure to evaluate
             and weigh these relevant factors prohibits this court from engaging in
             any meaningful review of the trial court’s decision. Accordingly, we
             must hold this failure amounts to an abuse of discretion. Moreover,
             due to the severity of the sanction actually imposed, we are
             particularly concerned with the trial court’s failure to consider
             whether a lesser sanction would be appropriate in order to achieve
             the purposes behind sanctioning a recalcitrant litigant.

40 F.3d at 341.

      As in Mobley, we are concerned particularly by the district court’s lack of

analysis on the fifth factor enunciated in Ehrenhaus, the efficacy of lesser

sanctions. Lesser sanctions which the district could have considered include

striking the new issue in the amended brief for Appeal 1, rejecting Hopkins’

amended briefs and warning him that any further violations of the local rules or

previous orders would result in dismissal, or issuing a contempt citation and fine.


                                          -6-
We express no opinion as to the efficacy of these lesser sanctions, but we believe

that the district court at least should have analyzed the efficacy of these or other

lesser sanctions. In light of the district court’s failure to do so, and its failure to

consider the other Ehrenhaus factors, we reverse the judgment of the district court

and remand this case.

      As in Mobley, we do not opine what the district court should decide on

remand. See 40 F.3d at 341. Rather, if the district court again considers

dismissing Hopkins’ appeal, it should address the Ehrenhaus factors in making its

decision. 5 We reemphasize the severity of dismissal as a sanction, as dismissal

“defeats altogether a litigant’s right to access to the courts,” Mobley, 40 F.3d at

340, and therefore is an appropriate sanction “[o]nly when the aggravating factors

outweigh the judicial system’s strong predisposition to resolve cases on their

merits.” Ehrenhaus, 965 F.2d at 921. While we do not require the district court

to make an extensive report on remand, we do require that it provide us with

sufficient analysis supporting any further dismissal so that we have an adequate

basis to judge whether the district court acted within its discretion. 6

      5
       A district court need not explicitly analyze all of the Ehrenhaus factors
when, unlike in this case, the record is clear enough for us to evaluate and weigh
the factors and make a meaningful review of the trial court’s decision.
      6
       In appealing the district court’s dismissal, Hopkins makes several
arguments that lack merit and hence do not warrant extended discussion. Among
them are his claims that the district court erred in striking his first set of briefs, in
                                                                          (continued...)

                                           -7-
      REVERSED and REMANDED. The mandate shall issue forthwith.



                                       ENTERED FOR THE COURT


                                       David M. Ebel
                                       Circuit Judge




      6
        (...continued)
denying his motion to file his non-conforming amended briefs, and in dismissing
both of his appeals despite his assertion that his amended brief in Appeal 2 was in
“full and complete compliance with the local rules.” (Aplt. Brief at 3-4.) As all
of Hopkins’ briefs were non-complying, including both of his amended briefs, see
supra n.4, it was well within the discretion of the district court to strike them.
       Hopkins further claims that the brief-writing requirements set forth in the
district court order were so vague and ambiguous as to violate his right to due
process. (See Aplt. Brief at 3B.) There is no merit to this argument.
       Hopkins also argues that he should be excused for his failures to comply
with the brief-writing requirements because he is a pro se litigant. (See Aplt.
Brief at 2, 4.) While pro se litigants generally are held to less stringent standards
than counseled litigants, see McCottrell v. EEOC, 726 F.2d 350, 351 (10th Cir.
1983), Hopkins’ status as a pro se litigant carries little weight here, as a pro se
litigant still must comply with the rules of procedure, including local rules. See
Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992). Furthermore, Hopkins’ pro
se status carries even less weight in light of his 20 years of experience as an
attorney. (See Aplt. Reply at 10.)


                                         -8-
