                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           APR 27 2001
                              FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    RAMON MENDEZ,

                  Plaintiff-Appellant,

    v.                                                    No. 00-6071
                                                      (D.C. No. 99-CV-874)
    SCOTT BROWN, Deputy Sheriff;                          (W.D. Okla.)
    JOHN WHETSEL, Sheriff; BOARD
    OF COUNTY COMMISSIONERS
    OF OKLAHOMA COUNTY,

                  Defendants-Appellees.


                              ORDER AND JUDGMENT          *




Before TACHA , Chief Judge, EBEL 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.




*
      This order and judgment is not binding precedent, except under the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 Ramon Mendez appeals from the district court’s grant of summary

judgment, in accordance with a local rule, because of his failure to respond to

defendants’ summary judgment motion, and from the court’s denial of his motion

for reconsideration. For the reasons stated below, we affirm.

      Plaintiff brought this action against defendants under 42 U.S.C. § 1983 and

state law alleging violation of his constitutional rights to be free from false arrest

and from cruel and unusual punishment and alleging assault and battery.      1
                                                                                 On

January 3, 2000, defendants moved for summary judgment on several grounds.

Although plaintiff subsequently filed witness and exhibit lists in preparation for

trial, he never filed a response to the summary judgment motion. On February 9,

the district court issued an order noting that more than eighteen days had passed

since defendants filed their motion and that plaintiff had failed to respond. Citing

Local Rule 7.1(e), which provides that a motion not opposed within eighteen days

may be deemed confessed,    2
                                the district court “in its discretion deem[ed] the

Defendants’ Motion to be confessed,” and granted summary judgment to


1
      The charges levied against plaintiff were eventually dismissed.
2
      Western District of Oklahoma Local Civil Rule 7.1(e), which was
renumbered 7.2(e) effective October 1, 2000, provides as follows:    “Each party
opposing a motion, application or objection shall file with the Clerk and serve
upon all other parties a response within eighteen (18) days from the date of the
motion, application or objection was filed . . . . Any motion, application or
objection which is not opposed within eighteen (18) days may, in the discretion of
the Court, be deemed confessed.”

                                            -2-
defendants. Appellant’s App. at 41. The court further ordered that its ruling

“[would] be reconsidered only in accordance with Rule 60(b), Fed. R. Civ. Pro.

and Hancock v. City of Oklahoma City      , 857 F.2d 1394, 1396 (10th Cir. 1988);

Meade v. Grubbs , 841 F.2d 1512, 1520-1522 (10th Cir. 1988);      DG Shelter

Products Co. v. Forest Products Co.     , 769 F.2d 644, 645 (10th Cir. 1985).”

Appellant’s App. at 41. On February 11, plaintiff filed a motion for

reconsideration on the grounds that the failure to respond to the summary

judgment motion was due to mistake, inadvertence, and excusable neglect on

the part of plaintiff’s counsel. The district court denied the motion for

reconsideration, although it altered its dispositive analysis in a significant respect

discussed below.

       Plaintiff filed a timely notice of appeal and challenges both the initial

grant of summary judgment and the denial of his motion for reconsideration.

We review a district court’s grant of summary judgment based on a party’s

failure to respond to a summary judgment motion, in violation of a local rule, for

an abuse of discretion.   Hancock , 857 F.2d at 1395. We review the denial of a

motion for reconsideration, which we construe as filed pursuant to Fed. R. Civ. P.

59(e), 3 under the same standard.     Phelps v. Hamilton , 122 F.3d 1309, 1324


3
       Because plaintiff filed his motion for reconsideration within ten days of the
court’s judgment, it is considered a Rule 59(e) motion.   See Hatfield v. Bd. of
                                                                       (continued...)

                                            -3-
(10th Cir. 1997). Without addressing the appropriateness of the district court’s

initial grant of summary judgment, we affirm on the basis of its analysis on

reconsideration.

       When a court grants summary judgment and dismisses a case for failing

to respond to a summary judgment motion in violation of a local rule, we apply

a fairly rigorous standard to the court’s action; that is, we require a court to

consider on the record “(1) the degree of actual prejudice to the defendant; (2) the

amount of interference with the judicial process; and (3) the culpability of the

litigant.” Hancock , 857 F.2d at 1396. We impose this rigorous standard because

entry of an adverse judgment for violation of a local rule is a severe sanction that

is appropriate only when a lesser sanction would not serve the ends of justice.    4



Id. ; Meade v. Grubbs , 841 F.2d 1512, 1520 (10th Cir. 1988). On reconsideration

here, however, the court sanctioned plaintiff’s noncompliance with the local rule

by simply deeming defendants’ statement of uncontested facts admitted. This

exercise of the court’s discretion is not subject to the stringent considerations

imposed by cases such as    Hancock and Meade . Although it may ultimately result


(...continued)
3

County Comm’rs , 52 F.3d 858, 861 (10th Cir. 1995).
4
       We note that other circuits do not permit the entry of summary judgment on
this basis without a determination on the merits of the Rule 56 motion.     See, e.g. ,
Stough v. Mayville Comm. Sch. , 138 F.3d 612, 614-15 (6th Cir. 1998);      Anchorage
Assocs. v. Virgin Islands Bd. of Tax Review     , 922 F.2d 168, 175-76 (3d Cir. 1990);
Jaroma v. Massey, 873 F.2d 17, 19-20 (1st Cir. 1989).

                                            -4-
in a grant of summary judgment, deeming facts admitted is not the same as

imposing the harsh and conclusive sanction of an adverse judgment on the

noncomplying party. We therefore evaluate the district court’s discretion in this

regard under the general standard, which defines an abuse of discretion as “an

arbitrary, capricious, whimsical or manifestly unreasonable judgment.”      FDIC v.

Oldenburg , 34 F.3d 1529, 1555 (10th Cir. 1994) (quotations omitted);     cf. Sports

Racing Servs., Inc. v. Sports Car Club of Am., Inc.   , 131 F.3d 874, 894 (10th Cir.

1997) (reviewing exclusion of evidence at summary judgment stage of

proceedings for abuse of discretion).

       On appeal, plaintiff argues that the district court abused its discretion

in denying his motion for reconsideration because the failure to respond to

the summary judgment motion was due to his counsel’s ignorance of Local

Rule 7.1(e), not counsel’s intentional disregard of that rule, and because the

failure to respond was not part of a pattern of delay and neglect on his part.

He further contends that any penalty should have been imposed on counsel rather

than plaintiff. We see no abuse of discretion. The court noted that plaintiff,

through his counsel, was aware defendants’ summary judgment motion had been

filed and chose not to respond to it, or move that it be stricken, because of its

alleged untimeliness. The court also noted, correctly, that plaintiff, through his




                                            -5-
counsel, should have been aware of Local Rule 7.1(e).    5
                                                             Parties choose their

counsel and generally are bound by their acts.    See Link v. Wabash R.R. Co. ,

370 U.S. 626, 633-34 (1962);     Sec. Nat’l Bank v. John Deere Co.    , 927 F.2d 519,

520 (10th Cir. 1991) (“[I]t is a fundamental principle of our representational legal

system . . . that a party acts through chosen counsel, whose carelessness or

ignorance, therefore, generally does not constitute grounds for relief for his

client.”). Under these circumstances, the court’s decision to deem defendants’

asserted facts admitted was not arbitrary or unreasonable.

       The final matter is to determine whether defendants were in fact entitled to

summary judgment. The district court held that based on the deemed admissions,

defendants were entitled to summary judgment. Although the court provided no

legal analysis supporting its conclusion, plaintiff has not challenged the court’s

determination on appeal. Plaintiff has thereby waived any challenge to the legal

basis for the court’s ruling.   State Farm Fire & Cas. Co. v. Mhoon    , 31 F.3d 979,




5
       Indeed, counsel should also have been aware of Local Rule 56.1, which
provides that “[a]ll material facts set forth in the statement of the material facts of
the movant shall be deemed admitted for the purpose of summary judgment unless
specifically controverted by the statement of material facts of the opposing party.”
W.D. Okla. LCvR 56.1(c). Other courts within this circuit employ similar rules,
and we have not questioned their application.     See, e.g. , Taylor v. Pepsi-Cola Co. ,
196 F.3d 1106, 1108 n.1 (10th Cir. 1999);     Mitchael v. Intracorp, Inc. , 179 F.3d
847, 856 (10th Cir. 1999).

                                           -6-
984 n.7 (10th Cir. 1994). Accordingly, we affirm the entry of judgment against plaintiff.

      AFFIRMED.


                                                   Entered for the Court



                                                   David M. Ebel
                                                   Circuit Judge




                                        -7-
No. 00-6071, Mendez v. Brown

BRISCOE , Circuit Judge, dissenting:

       I respectfully dissent from the majority opinion. I would conclude the

district court abused its discretion in granting defendant's summary judgment

motion and in denying plaintiff's motion for reconsideration.

       In Meade v. Grubbs , 841 F.2d 1512, 1520, 1521 n.7 (10th Cir. 1988), we

noted three aggravating factors which are generally the focus for district courts in

determining whether to deem a matter confessed for violation of local rules: (1)

the degree of actual prejudice to the defendant; (2) the amount of interference

with the judicial process; and (3) the culpability of the litigant. We further noted

that "only when these aggravating factors outweigh the judicial system's strong

predisposition to resolve cases on their merits is outright dismissal with prejudice

an appropriate action."   Id. In Meade , we applied these factors and concluded

that dismissal with prejudice was unwarranted.

       According to the majority opinion, the   Meade standard does not apply

because the district court "sanctioned plaintiff's noncompliance with the local rule

by simply deeming defendants' statement of uncontested facts admitted." Op. at

4. However, the effect of the court's action was to deem defendant's summary

judgment motion confessed. Where a summary judgment motion is deemed

confessed as a result of counsel's failure to comply with a local rule, we apply the

Meade standard. For example, in      Hancock v. City of Oklahoma City   , 857 F.2d
1394, 1395 (10th Cir. 1988), this court applied the   Meade test where a litigant

failed to respond to a summary judgment motion and the motion was deemed

confessed pursuant to local rules.   See also Green v. Dorrell , 969 F.2d 915, 916-

17 (10th Cir. 1992) (applying    Meade where plaintiff failed to respond to motion

to dismiss and the motion was deemed confessed).

       After applying the Meade factors, I would conclude the district court's

denial of the plaintiff's request for an extension of time was unreasonable and an

abuse of discretion. The district court found this case had been set on the March

2000 docket since October 1999, and that allowing plaintiff to file a late response

to the summary judgment motion would delay the trial. The complaint was filed

in June 1999. There is no evidence that delaying the case to the April or May

2000 docket would have prejudiced defendant or the court.

       The district court found that the litigant was culpable because plaintiff's

counsel deliberately chose not to respond to the motion for summary judgment.

There is no evidence to support the conclusion that plaintiff's counsel knew that

his response was due and failed to file it. To the contrary, plaintiff argues his

counsel failed to read Local Rule 7.1(e) and believed, based upon Federal Rule of

Civil Procedure 56, that no brief was due until the hearing was scheduled. While

failure to read local rules is certainly not a laudable excuse, it is no more culpable

than counsel's conduct in   Hancock , where plaintiff's counsel was given the motion


                                            -2-
for summary judgment and did not notice it in a stack of papers until after the

time to respond had passed. The distinction we should draw is the difference

between intentional, informed conduct and negligent conduct. Counsel's conduct

here was at most negligent and as in   Hancock should not result in the entry of

summary judgment for the defendants.

      The district court did not evaluate whether the aggravating factors

outweighed the judicial system's interest in resolving cases on the merits.

However, a slight delay because of failure to read local rules is insufficient to

outweigh the interest in resolving cases on the merits.

      I would reverse and remand to permit summary judgment briefing to

proceed.




                                          -3-
