Ikerd v. Lacy, I-69

• Decision Date: 28 July 1988
• Docket Number: No. I-69,No. 86-2528,D,I-69,86-2528
• Parties: Earl IKERD, Individually, and as Father and Legal Guardian of Sandy Ikerd, a Minor, Plaintiff-Appellant, v. Linda LACY, Individually, and as Assistant Principal of Mustang High School, Jim Middaugh, Individually, and as Principal of Mustang Public School, B.F. Rowley, Individually, and as Superintendent of Schools, Mustang School Districtefendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1256

852 F.2d 1256

11 Fed.R.Serv.3d 1073

Earl IKERD, Individually, and as Father and Legal Guardian of Sandy Ikerd, a Minor, Plaintiff-Appellant, v. Linda LACY, Individually, and as Assistant Principal of Mustang High School, Jim Middaugh, Individually, and as Principal of Mustang Public School, B.F. Rowley Individually, and as Superintendent of Schools, Mustang School District No. I-69, Defendants-Appellees.

No. 86-2528.

United States Court of Appeals Tenth Circuit.

July 28, 1988.

Arthur R. Angel of Angel, Ikard & Nash, Oklahoma City, Okl., for plaintiff-appellant.

Phyllis L. Walta of Cartwright & Tyree, Oklahoma City, Okl., and Kim S. Taylor of Cathcart, Gofton & Stratton, Oklahoma City, Okl., for defendants-appellees.

Before MOORE, SETH and ANDERSON, Circuit Judges.

SETH, Circuit Judge.

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); Tenth Cir.R. 34.1.8. The cause is therefore ordered submitted without oral argument.

This is an appeal of two orders entered by the trial court. The first order dismissed appellant's complaint without prejudice and requires if the complaint is refiled $500 be paid to each attorney who attended the scheduling conference. The second order denied appellant's motion to reconsider and to vacate the judgment of dismissal and imposing sanctions.

The facts relevant to this appeal are as follows. Appellant filed a Civil Rights action pursuant to 42 U.S.C. Sec. 1983. The court on August 12, 1986 set a date for a preliminary scheduling conference. The conference was to be held August 27, 1986 at 1:45 p.m. Present at the conference on the 27th were appellees' attorneys but not plaintiff-appellant's attorney. The judge's office called appellant's counsel's office to find out why appellant's attorney was absent. There is a dispute as to what the court was told. Appellant contends the court was advised that appellant's attorney was appearing before another federal judge one floor below and that he would be notified of the hearing and would get there as soon as possible. Appellant's counsel claims he arrived within twenty minutes. Appellees maintain that whoever answered the telephone in appellant's counsel's office only stated that appellant's counsel was involved in another trial, not that he would be arriving as soon as possible. In addition, appellees claim appellant's attorney never arrived.

The minutes entered at the status conference reflect that the conference began at 1:50 and concluded at 1:55. As a consequence of not notifying the court or opposing counsel of his inability to attend the conference and for not requesting the conference be rescheduled, the court dismissed the complaint without prejudice and imposed fees if the action be refiled. Appellant subsequently moved for the court to reconsider and to vacate the judgment of dismissal and imposing sanctions. The court denied the motion. This appeal followed.

Rule 16 of the Federal Rules of Civil Procedure addresses pretrial conferences, scheduling and management. Subsection (f) provides for sanctions to be imposed upon parties and/or their attorneys who fail to comply with pretrial orders. This section states:

"If a party or party's attorney fails to obey a scheduling or pretrial order, or if no appearance is made on behalf of a party at a scheduling or pretrial conference, or if a party or party's attorney is substantially unprepared to participate in the conference, or if a party or party's attorney fails to participate in good faith, the judge, upon motion or the judge's own initiative, may make such orders with regard thereto as are just, and among others any of the orders provided in Rule 37(b)(2)(B), (C), (D). In lieu of or in addition to any other sanction, the judge shall require the party or the attorney representing the party or both to pay the reasonable expenses incurred because of any noncompliance with this rule, including attorney's fees, unless the judge finds that the noncompliance was substantially justified or that other circumstances make an award of expenses unjust."

In M.E.N. Co. v. Control Fluidics, Inc., 834 F.2d 869, 872 (10th Cir.), we identified what the standard of review is for reviewing sanctions imposed on a party or a party's attorney who has not followed a scheduling or pretrial order. We held: "Our review of such sanctions is governed by the abuse of discretion standard, in the totality of the circumstances." (Citations omitted.) Furthermore, in In Re Russell, 746 F.2d 1419, 1420 (10th Cir.), we stated "the need an appellate court has for the trial court's statement or recitation as to why the particular circumstances demonstrated a need for the sanctions imposed." (Emphasis in original.) The Journal Entry of Judgment here explains why the court imposed...