                                                              F I L E D
                                                        United States Court of Appeals
                                                                Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                                DEC 3 1999
                        FOR THE TENTH CIRCUIT
                                                          PATRICK FISHER
                                                                     Clerk

CHIBU ANAEME,

            Plaintiff-Appellant,

v.                                              No. 99-2076
                                         (D.C. No. CIV-97-1243-BB)
FHP OF NEW MEXICO, INC., a New                   (D. N.M.)
Mexico corporation; KIRSTIN
GAUTHIER, individually and in her
official capacity as Human Resources
Manager for FHP of New Mexico,
Inc.; RAY RODMAN, individually
and in his official capacity as Hiring
Supervisor for FHP of New Mexico,
Inc.; ROBERT HOLMES, individually
and in his official capacity as Hiring
Supervisor for FHP of New Mexico,
Inc.; MICHELLE WILLIAMS,
individually and in her official
capacity as Team Leader for FHP of
New Mexico, Inc.; JEFF CAMPBELL,
individually and in his official
capacity as Hiring Supervisor for FHP
of New Mexico, Inc.; LARRY
GEORGOPOULOS, individually and
in his official capacity as Clinical
Director for FHP of New Mexico, Inc.;
TALBERT MEDICAL
MANAGEMENT COMPANY,

            Defendants-Appellees.
                            ORDER AND JUDGMENT            *




Before ANDERSON , BARRETT , 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.

       Plaintiff Chibu Anaeme appeals the district court’s order dismissing his

civil rights/employment discrimination case with prejudice. We exercise

jurisdiction under 28 U.S.C. § 1291 and affirm.

       Plaintiff initiated this action under Title VII, 42 U.S.C. § 1981, the New

Mexico Human Rights Act, and common law (raising a claim of intentional

infliction of emotional distress). In his complaint, plaintiff, a registered

pharmacist in New Mexico of Nigerian origin, alleged that he applied to work for

defendants and they refused to interview him and/or to hire him on the basis of

his race, color, or national origin.



*
      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.

                                          -2-
      Although plaintiff was initially represented, counsel withdrew and plaintiff

continued pro se. Discovery stalled early in the litigation when plaintiff

postponed his deposition multiple times, claiming he was seeking new counsel.

Thereafter, defendants noticed his deposition several more times but he failed to

appear. Plaintiff also failed to respond to defendants’ written discovery requests.

Defendants sought sanctions and an order compelling discovery, or, in the

alternative, dismissal, attorneys’ fees, and costs. On June 30, 1998, the

magistrate judge issued an order sanctioning plaintiff pursuant to Fed. R. Civ. P.

37(a)(4) 1 and compelling discovery. The order directed plaintiff to respond to

defendants’ discovery requests within five days and to appear at a deposition

within fifteen days (with at least four days’ notice). He failed to comply with

either dictate. Subsequently, the district court issued an order to show cause why

plaintiff’s case should not be dismissed “for his failure to respond to discovery

requests and participate in completion of the Pretrial Order,” and set a one-hour




1
      Fed. R. Civ. P. 37(a)(4)(A) provides in part that:

      If the motion [to compel] is granted . . . the court shall . . . require
      the party or deponent whose conduct necessitated the motion . . . to
      pay to the moving party the reasonable expenses incurred in making
      the motion, including attorney’s fees, unless the court finds . . . that
      other circumstances make an award of expenses unjust.



                                         -3-
hearing. R., Doc. 64 at 2. Plaintiff did not appear at the show cause hearing and

the district court dismissed his case with prejudice.

       District courts are empowered to dismiss an action for discovery violations.

See Archibeque v. Atchison, Topeka & Santa Fe Ry.        , 70 F.3d 1172, 1174 (10th

Cir. 1995); Fed. R. Civ. P. 37(b)(2)(C). We review the district court’s dismissal

for abuse of discretion.   See National Hockey League v. Metropolitan Hockey

Club, Inc. , 427 U.S. 639, 642 (1976).   “Determination of the correct sanction for

a discovery violation is a fact-specific inquiry that the district court is best

qualified to make.”    Ehrenhaus v. Reynolds , 965 F.2d 916, 920 (10th Cir. 1992).

       We have recognized that “dismissal represents an extreme sanction

appropriate only in cases of willful misconduct.”     Id. at 920; see also Meade v.

Grubbs , 841 F.2d 1512, 1520 n.6 (10th Cir. 1988) (“Because dismissal with

prejudice defeats altogether a litigant’s right to access to the courts, it should be

used as a weapon of last, rather than first, resort.”) (quotations and citation

omitted). In Ehrenhaus , we set forth the following criteria that a district court

should “ordinarily” consider on the record when employing this drastic measure:

“(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


                                            -4-
sanctions.” Ehrenhaus , 965 F.2d at 921 (quotations and internal citations

omitted).

       We explained in Ehrenhaus that “[t]hese factors do not constitute a rigid

test; rather, they represent criteria for the district court to consider prior to

imposing dismissal as a sanction.”         Id. Not every case will require the district

court’s evaluation of all the    Ehrenhaus criteria, however, since “often some of

these factors will take on more importance tha[n] others.”         Archibeque , 70 F.3d

at 1175 (affirming district court’s dismissal order which stated the reasons for

dismissal despite court’s failure to warn plaintiff of impending dismissal)

(quotation omitted ).

       On appeal, plaintiff contends that the trial court abused its discretion by

dismissing his case “with prejudice without making a record that it considered all

relevant factors which must be considered prior to a dismissal with prejudice for

noncompliance with discovery.” Appellant’s Opening Br. at 3. Plaintiff argues

that the district court failed to follow     Ehrenhaus .

       While plaintiff correctly states that the district court’s three-paragraph

dismissal order does not discuss the       Ehrenhaus criteria, the record nevertheless

permits meaningful review of that dismissal. Specifically, the magistrate judge’s

order of June 30, 1998--upon which the district court’s order to show cause and

dismissal order build--explicitly discussed the       Ehrenhaus criteria.


                                                -5-
       The magistrate judge found that defendants were prejudiced by plaintiff’s

behavior because they incurred additional costs related to filing motions and were

delayed in completing discovery. In addition, the magistrate judge noted that

there was no justification for plaintiff’s behavior nor did his pro se status excuse

him from following the Federal Rules of Civil Procedure. The magistrate judge

further noted that plaintiff was familiar with the litigation process (plaintiff has

filed numerous other civil cases in the District of New Mexico). Last, the

magistrate judge took pains to explicitly warn plaintiff that if he continued to not

cooperate, his case could be dismissed under      Ehrenhaus . Plaintiff failed to

comply with the deadlines set forth in that order.

       While the magistrate judge’s order does not address all the     Ehrenhaus

factors, the factors discussed support dismissal under our case law.     See

Archibeque , 70 F.3d at 1175 . In addition to inconveniencing defendants by

forcing them to file countless motions and to renotice his deposition, plaintiff

flouted the Federal Rules of Civil Procedure, the magistrate judge’s June 30, 1998

order, and the district court’s order to show cause. He also failed to respond to

many of defendants’ motions. We conclude that the district court did not abuse

its discretion in dismissing plaintiff’s case with prejudice. On this record, “the

aggravating factors outweigh the judicial system’s strong predisposition to resolve




                                            -6-
cases on their merits” and dismissal is an appropriate sanction.    Meade , 841 F.2d

at 1521 n.7.

       The judgment of the district court is AFFIRMED.



                                                        Entered for the Court



                                                        Mary Beck Briscoe
                                                        Circuit Judge




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