40 F.3d 337 (10th Cir. 1994), 94-1278, Mobley v. McCormick

Docket Nº:94-1278.
Citation:40 F.3d 337
Party Name:, 30 Fed.R.Serv.3d 1313 Terry W. MOBLEY, Plaintiff-Appellant, v. Richard McCORMICK, C.E.O. of U S West, Inc.; Gary Ames, President of U S West Communications, Inc.; Chris Coles; Robert Hawk; Dan Sutherland; U S West Communications, Inc., a Colorado Corporation, Defendants-Appellees.
Case Date:November 14, 1994
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 337

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

, 30 Fed.R.Serv.3d 1313

Terry W. MOBLEY, Plaintiff-Appellant,

v.

Richard McCORMICK, C.E.O. of U S West, Inc.; Gary Ames,

President of U S West Communications, Inc.; Chris Coles;

Robert Hawk; Dan Sutherland; U S West Communications,

Inc., a Colorado Corporation, Defendants-Appellees.

No. 94-1278.

United States Court of Appeals, Tenth Circuit

November 14, 1994

Page 338

Terry W. Mobley, on the brief pro se.

Jerry R. Atencio, Englewood, CO, on the brief, for defendants-appellees.

Page 339

Before TACHA, BRORBY and EBEL, Circuit Judges.

BRORBY, Circuit Judge.

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in 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.

Terry Mobley, a pro se litigant, appeals the decision of the district court dismissing his race discrimination lawsuit. Our jurisdiction arises under 28 U.S.C. Sec. 1291 and we reverse and remand.

Mr. Mobley initially filed a lawsuit in Colorado State Court complaining of various forms of racial discrimination under Title VII. After the case was removed to federal court in January 1993 (No. 93-F-126), various disputes arose over discovery issues and over the relationship between Mr. Mobley and his counsel. A hearing was thereafter held before a magistrate judge who, on November 10, 1993, recommended that the case be dismissed without prejudice pursuant to Rule 37(b)(2)(C) based on the plaintiff's willful and repeated noncompliance with the Federal Rules of Civil Procedure and orders of court. The magistrate judge also recommended that if the matter were to be refiled, Mr. Mobley must: (1) be represented by counsel; (2) prepay his counsel; and (3) pay all amounts previously owed by Mr. Mobley to his attorneys and the defendant. The district court adopted the recommendation in its entirety.

In March 1994, Mr. Mobley filed the present complaint in federal court (No. 94-F-905) without complying with the conditions imposed at the time of the dismissal of the first complaint. On May 12, 1994, the district court, pursuant to a motion filed by defendants, dismissed the second action with prejudice under Rule 12(b)(6), reasoning that Mr. Mobley's failure to comply with the conditions of the court's earlier order dismissing the first law suit was tantamount to a failure to state a claim upon which relief could be granted.

On appeal, Mr. Mobley raises eight issues. Seven of the issues he appeals relate to the trial court's dismissal of the first action. The eighth issue is phrased in general terms, merely alleging "Plaintiff no[w] comes before the Court to appeal the district court's order, dated May 12, 1994."

A.

With respect to the seven issues relating to the district court's dismissal of the first lawsuit, we must make the threshold determination of whether those issues are properly before us on appeal. Specifically, we must decide whether the district court's order dismissing the first action without prejudice constituted an appealable final order. If so, then we have no jurisdiction to review those claims because Mr. Mobley's notice of appeal is untimely under Rule 4(a). See Budinich v. Becton Dickinson & Co., 486 U.S. 196, 203, 108 S.Ct. 1717, 1722, 100 L.Ed.2d 178 (1988) (timely filing of a notice of appeal is "mandatory and jurisdictional"). If, however, the district court's order was interlocutory in nature and nonappealable, then we may review those claims.

Precedent establishes the rule that in determining whether an order of dismissal is appealable, we must examine whether the district court dismissed the complaint or the action. See Petty v. Manpower, Inc., 591 F.2d 615, 617 (10th Cir.1979). A dismissal of the complaint is ordinarily a non-final, nonappealable order (since amendment would generally be available), see Budde v. Ling-Temco-Vought, Inc., 511 F.2d 1033 (10th Cir.1975), while a dismissal of the entire action is ordinarily final.

In Petty, we stated the focus must necessarily be on "the district court's intent in issuing its order." Petty, 591 F.2d at 617. In that case, the district court dismissed a pro se civil rights complaint without prejudice as a sanction under Rule 41(b). We concluded the district court intended to dismiss the action, rather than simply the complaint, and therefore, found the order appealable. Id. In the present case, the district court dismissed Mr. Mobley's entire case,

Page 340

albeit without prejudice, as a Rule 37(b)(2) sanction. Although the dismissal was without prejudice, we believe the district court's clear intent was to dismiss the entire case and to permit Mr. Mobley...

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