                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                    October 23, 2008
                     UNITED STATES COURT OF APPEALS
                                                                  Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                     Clerk of Court



    AARON RAISER,

                Plaintiff-Appellant,

    v.                                                   No. 08-4027
                                                 (D.C. No. 2:02-CV-00975-TC)
    BRIGHAM YOUNG UNIVERSITY,                              (D. Utah)

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before O’BRIEN, Circuit Judge, BRORBY, Senior Circuit Judge, and
McCONNELL, Circuit Judge.



         Plaintiff-Appellant Aaron Raiser appeals from the district court’s dismissal

of this action under Rule 41(b) of the Federal Rules of Civil Procedure as a

sanction for his refusal to comply with court orders. Exercising jurisdiction under

28 U.S.C. § 1291, we affirm.




*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                    Background

      Raiser filed this lawsuit against Brigham Young University (“BYU”) in

2002, alleging BYU’s campus police illegally detained him on several occasions

and the school newspaper published false information about him, depriving him

of various constitutional rights in violation of 42 U.S.C. § 1983. After an initial

flurry of discovery and other non-substantive motions, the case sat idle for some

time until an initial pre-trial conference was set in December 2006.

      Before the conference, the court issued a Notice Reminder to the parties,

which specifically ordered them to appear in person and stated telephonic

appearances would not be permitted. Nonetheless, three days before the

scheduled conference, Raiser filed a notice stating he would appear by phone.

When the conference convened, however, he appeared neither in person nor

telephonically, which prompted BYU to move for sanctions. On April 23, 2007,

the district court denied BYU’s motion, holding Raiser’s failure to appear at one

pre-trial conference was not sufficient to justify dismissal. But the court warned

Raiser he was on “thin ice” and very close to having “his case dismissed with

prejudice for failure to prosecute and failure to follow court orders and rules.” R.

Vol. V., doc. 145 at 10. In the same order, the court specifically ordered Raiser

to personally appear in Utah for every deposition noticed in the case: “FAILURE

TO APPEAR IN PERSON FOR ANY DEPOSITION IS GROUND FOR




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DISMISSAL OF THE CASE WITH PREJUDICE WITHOUT FURTHER

NOTICE.” Id. at 12.

      In June 2007, after clearing the date with Raiser, BYU noticed his

deposition for August 24 at its attorneys’ offices in Salt Lake City. In response,

Raiser filed two motions for a protective order seeking to change the location of

his deposition to “neutral” territory. While he did not object to appearing in Utah

generally, he did object to appearing at the offices of BYU’s counsel. In short, he

argued he simply could not bring himself to go onto the private property of

BYU’s counsel because the University’s past treatment of him was so

traumatizing. The district court found no foundation for Raiser’s alleged fear of

BYU’s counsel. Accordingly, it denied his motion and ordered the deposition to

proceed as noticed.

      On August 19, 2007, by email Raiser informed BYU’s counsel he would

not appear for his deposition, but he would agree to dismiss the case provided he

be allowed to draft the dismissal documents. In its response the next day, BYU

agreed to a voluntary dismissal, but not to Raiser drafting the documents.

Accordingly, it drafted the dismissal documents and attached them to its email for

Raiser’s approval, specifying that if his approval was not received by 3:00 pm on

August 23, BYU would have no choice but to convene his deposition. Raiser did

not submit his approval so BYU convened his deposition on August 24, as

promised. When Raiser failed to appear, BYU filed its motion to dismiss and for

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attorneys’ fees, which the district court granted on October 29, 2007. Raiser then

filed a “Motion to Reconsider,” which the court denied on January 15, 2008.

                                     Discussion

      We review a district court’s decision to dismiss an action as a sanction

under Rule 41(b) for abuse of discretion. Ecclesiastes 9:10-11-12, Inc. v. LMC

Holding Co., 497 F.3d 1135, 1143 (10th Cir. 2007). “An abuse of discretion

occurs when a district court makes a clear error of judgment or exceeds the

bounds of permissible choice in the circumstances.” Id. (quotation omitted).

More specifically for purposes of this case, we have held a district court abuses

its discretion if it dismisses an action under Rule 41(b) without considering the

following factors: (1) the degree of actual prejudice to the other party; (2) the

amount of interference with the judicial process; (3) the litigant’s culpability; (4)

whether the court warned the party in advance dismissal would be a likely

sanction for noncompliance; and (5) the efficacy of lesser sanctions. Mobley v.

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

      There was no abuse of discretion here. To the contrary, the record reveals

a careful consideration of each of the above factors leading to the district court’s

ultimate conclusion that Raiser’s repeated non-compliance warranted the harshest

of sanctions. Furthermore, we conclude the district court acted well within its

discretion in ordering Raiser to pay the modest amount in attorneys’ fees incurred

by BYU in convening his deposition and drafting the motion for sanctions. The

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district court’s judgment is therefore AFFIRMED. Raiser’s arguments concerning

the district court’s tailoring of his complaint are mooted by this disposition, and

all pending motions are DENIED.



                                       Entered for the Court


                                       Terrence L. O’Brien
                                       Circuit Judge




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