                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           MAY 24 2000
                                   TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk

 CURTIS L. MURRAY, JR.,

          Plaintiff - Appellant,
 v.
                                                        No. 00-7007
 THE CITY OF TAHLEQUAH,                           (D.C. No. 99-CV-522-S)
 OKLAHOMA; CHEROKEE                            (Eastern District of Oklahoma)
 COUNTY, OKLAHOMA; SURETY
 COMPANY(S),

          Defendant - Appellee.


                             ORDER AND JUDGMENT *


Before BALDOCK, HENRY and LUCERO, Circuit Judges.



      Curtis L. Murray, Jr., appearing pro se, appeals from the district court’s

denial of his motion for continuance and subsequent sua sponte dismissal of his

action for failure to appear and prosecute at a status and scheduling conference.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we reverse.



      *
       The case is unanimously ordered submitted without oral argument pursuant
to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
      Murray filed his complaint in the instant action on September 29, 1999, in

the United States District Court for the Eastern District of Oklahoma, asserting

numerous causes of action arising from an allegedly unlawful arrest. On October

7, 1999, the district court mailed a notice to all parties instructing them to meet as

soon as practicable and setting a status and scheduling conference for October 28,

1999. Murray filed a motion to continue the scheduling conference on October

25, 1999, on the ground that the defendants had not yet been served. The district

court denied the motion the same day, notifying him of its decision both in

writing and by leaving a message on his answering machine. When defendants

appeared for the scheduling conference but Murray did not, the district court

entered an order dismissing the case “for failure of the plaintiff to appear and

prosecute at status and scheduling conference.” (I R. Doc. 8.)

      Murray first argues the district court erred in denying his motion to

continue the scheduling conference. We review that denial for abuse of

discretion. See United States v. Simpson, 152 F.3d 1241, 1251 (10th Cir. 1998).

The proffered reason for the continuance was that the defendants had not yet been

served and therefore might not appear. We hold the district court did not abuse

its discretion in concluding that Murray’s concern for defendants did not warrant

a continuance. If defendants required a continuance, they themselves were

presumably capable of requesting one.


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      Next, Murray argues the dismissal for failure to appear and prosecute was

unwarranted and in violation of his right to due process. A district court has the

authority to dismiss a case sua sponte for failure to appear at a scheduling

conference, and we will not reverse such a dismissal unless it was an abuse of

discretion. See Link v. Wabash, 370 U.S. 626, 633 (1962); see also Fed. R. Civ.

P. 16(f); E.D. Okla. R. 16.1(c). Because the law favors disposition of litigation

on its merits, however, dismissal with prejudice is a severe sanction appropriate

only when a less drastic sanction would not serve the interest of justice. See

Meade v. Grubbs, 841 F.2d 1512, 1520 (10th Cir. 1988). Accordingly, the district

court should ordinarily consider and address all of the following factors on the

record before opting for the sanction of 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.” Ehrenhaus v. Reynolds,

965 F.2d 916, 921 (10th Cir. 1992) (internal quotations and citations omitted).

      The district court did not conduct the analysis set forth in Ehrenhaus,

thereby preventing “this court from engaging in any meaningful review of the trial

court’s decision.” Mobley v. McCormick, 40 F.3d 337, 341 (10th Cir. 1994).

Moreover, it is not apparent from the evidence in the record before us that a


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proper weighing of the Ehrenhaus factors would necessarily result in the sanction

of dismissal with prejudice. We therefore conclude that the district court abused

its discretion in dismissing with prejudice Murray’s action.

         The unpublished decisions cited by appellees illustrate why dismissal was

an abuse of discretion, rather than bolstering their contention that dismissal was

warranted. In Zenati v. Echostar, Inc., No. 99-1233, 2000 WL 43719, at **1

(10th Cir. Jan. 20, 2000), the district court dismissed the action for failure to

prosecute only after it “carefully analyzed the [Ehrenhaus] factors,” including the

failure to appear at three scheduling conferences, timely provide discovery, and

cooperate in preparing a pretrial order. In the instant case, by contrast, the record

reveals only a single failure to comply with procedural rules and no analysis of

the Ehrenhaus factors. Unlike in Robbalaa v. United States, No. 97-7144, 1998

WL 317475, at **1 (10th Cir. June 11, 1998), Murray was not allowed “a full and

fair opportunity to provide justification for his absence.” And, unlike in Owens

v. Oklahoma University Health Sciences Center, No. 92-6397, 1993 WL 335804,

at **1 (10th Cir. Aug. 27, 1993), Murray has not misrepresented the reason for

his failure to appear at the scheduling conference in response to an order to show

cause.

         More applicable to the present facts are those cases holding that dismissal

with prejudice was an abuse of discretion. As in Meade, 841 F.2d at 1520,


                                           -4-
Murray’s “only infraction was his failure to appear at a hearing on pre-trial

matters which were the first noticed for disposition in the case.” Although

Murray’s “failure to appear at the status conference certainly reflects on his

culpability, nothing in the record bears on how this single failure might have

prejudiced the defendants or the meaningful impact, if any, on the judicial process

itself.” Hardage v. James, No. 00-7019, 2000 WL 565057 (10th Cir. May 11,

2000) (unpublished) (citing Murray v. Archambo, 132 F.3d 609, 610-11 (10th Cir.

1998)). To paraphrase Hardage, the proper procedure in this particular case

would have been for the district court to issue a show cause order directing

Murray to account for his failure to appear. Then, after an on-record balancing of

Murray’s response against the factors set out in Ehrenhaus, the court should have

determined whether dismissal with prejudice was the appropriate sanction.

      The judgment of the district court is VACATED and the case is

REMANDED for further proceedings consistent with this opinion.

      The mandate shall issue forthwith.

                                       ENTERED FOR THE COURT



                                       Carlos F. Lucero
                                       Circuit Judge




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