Bud Brooks Trucking, Inc. v. Bill Hodges Trucking Co.
Opinion of the Court
This appeal is taken from a district court order denying plaintiffs’ motion to vacate the court’s earlier dismissal of their action. Fed.R.Civ.P. 60(b). Initially, plaintiffs filed an untimely notice of appeal from the district court’s order and the appeal was dismissed for lack of jurisdiction. After their unsuccessful attempt to appeal, plaintiffs filed their Rule 60(b) motion in the district court. Limiting our review to the district court’s denial of 60(b) relief, and applying the appropriate standard to that denial, we conclude that the district court acted within its discretion and affirm the court’s order.
BACKGROUND
In August of 1985, plaintiffs filed their original complaint seeking relief under the Sherman and Clayton Acts, claiming antitrust violations by defendants (six competing companies and their attorney). A year later, after amended pleadings had been filed and initial motions ruled upon, the district court held a scheduling conference with the parties. The court set a series of deadlines, which were subsequently extended by joint request of the parties.
According to the parameters eventually fixed by the district court, plaintiffs’ final “contentions” were due January 1, 1987, with defendants’ due seven days later. Witness and exhibit lists of both sides were due January 25, and discovery was to be completed by February 15. Several other deadlines were set, including initiation by plaintiffs’ counsel of settlement by February 1. Trial was to commence March 2.
Defendants all attended the conference, but only one of the six plaintiffs appeared. This prompted the district court to enter an order mandating the appearance of all plaintiffs and counsel on February 27 and directing them to show cause why sanctions should not be imposed for failure to attend the February 11 conference. The court further indicated its intent to consider several pending motions to dismiss the action for failure to comply with scheduling and discovery deadlines. Following the February 27 hearing, the district court dismissed the action with prejudice for failure of plaintiffs to comply with discovery and scheduling deadlines and failure to appear at the settlement conference.
The plaintiffs’ notice of appeal from the order dismissing the action was untimely filed, resulting in the dismissal of the appeal for lack of jurisdiction. In their subsequent motion for relief under Rule 60(b), plaintiffs requested the court to consider whether sanctions other than dismissal would have been more appropriate under the circumstances. The district court summarily denied the motion and this appeal ensued.
DISCUSSION
Dismissal with prejudice is a drastic sanction. Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988); In re Russell, 746 F.2d 1419 (10th Cir. 1984); Hollis v. United States, 744 F.2d 1430, 1432 (10th Cir. 1984). While such a sanction may be employed in the proper situation, we have held that the district court should consider sanctioning the responsible party. In re Baker, 744 F.2d 1438, 1442 (10th Cir. 1984) (en banc) (impact of sanction should be lodged with counsel or client, whoever is at fault), cert. denied, 471 U.S. 1014, 105 S.Ct. 2016, 85 L.Ed.2d 299 (1985); see Meade v. Grubbs, 841 F.2d 1512, 1520 (10th Cir. 1988) (dismissal usually appropriate only when lesser sanction would not serve best interests of justice).
Were this a direct appeal from the dismissal of the action, plaintiffs might have a stronger position from which to argue that dismissal was too harsh a sanction under the circumstances. But see In re Standard Metals Corp., 817 F.2d .625, 628-29 (10th Cir. 1987); Founding Church of Scientology, Inc. v. Webster, 802 F.2d 1448, 1457-59 (D.C.Cir. 1986), cert. denied, 484 U.S. 871, 108 S.Ct. 199, 98 L.Ed.2d 150 (1987); Gates v. United States, 752 F.2d 516, 517 (10th Cir. 1985). However, the posture of this appeal requires review of a different discretionary decision by the district court, i.e., the denial of the motion under Rule 60(b).
Relief under Rule 60(b) is extraordinary and may only be granted in exceptional circumstances. Ackermann v. United States, 340 U.S. 193, 199, 71 S.Ct. 209, 212, 95 L.Ed. 207 (1950); Griffin v. Swim-Tech Corp., 722 F.2d 677, 680 (11th Cir. 1984). Plaintiffs do not recite any exceptional circumstances warranting such relief, nor does our reading of the record disclose any. There are no claims, for instance, that plaintiffs were unable to comply with discovery deadlines or to attend the settlement conference because of compelling' circumstances beyond their control. Parties and their attorneys must be held to a reasonably high standard of diligence in observing the courts’ rules of procedure. Cessna Finance Corp. v. Bielenberg, 715 F.2d at 1444 (no abuse of discretion in denying Rule 60(b)(1) motion for relief from default judgment). Cf. Morris v. Adams-Millis Corp., 758 F.2d at 1359 (Rule 60(b)(1) will not lie to correct error of law, where.the appellant fails to demonstrate unusual circumstances warranting relief under Rule 60(b)(6)).
CONCLUSION
We conclude that the district court did not abuse its discretion in denying plaintiff’s Rule 60(b) motion. Accordingly, the district court’s order is AFFIRMED.
. 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); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.
. However, litigants, having chosen their attorney, cannot avoid the consequences of the acts of their freely selected agent. Link v. Wabash R.R., 370 U.S. 626, 633-34, 82 S.Ct. 1386, 1390-91, 8 L.Ed.2d 734 (1962); see also National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643, 96 S.Ct. 2778, 2781, 49 L.Ed.2d 747 (1976) (most severe sanction must be available to district court not only to penalize conduct warranting sanction, but to deter others).
. We emphasize that the Rule 60(b) motion in this case was not filed in the district court until after the time for direct appeal had expired. This court has previously addressed situations where an immediate 60(b) motion was filed, and a timely appeal of both the underlying
Reference
- Full Case Name
- BUD BROOKS TRUCKING, INC., an Oklahoma corporation Kenny Stevens, doing business as Stevens Trucking, Slim's Forklift and Trucking Company Gold Transit Systems, Inc., an Oklahoma corporation Sooner Trucking Service, Inc., an Oklahoma corporation Jim Rains, doing business as Rains Trucking Service Johnny Lawrence, doing business as Johnny Lawrence Company v. BILL HODGES TRUCKING COMPANY, INC., an Oklahoma corporation Turner Brothers Trucking Company, an Oklahoma corporation Bill Jackson Rig Company, an Oklahoma corporation Jim Marrs Trucking Co., Inc., a successor to Jim Marrs & Son Trucking Company, Inc. Garrett Brothers, Inc., an Oklahoma corporation Jernigan Brothers, Inc., an Oklahoma corporation Louis Bodnar, an individual
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