North American University v. State of Utah

• Decision Date: 29 November 1993
• Citation: 968 F.2d 20
• Parties: NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of
• Court: U.S. Court of Appeals — Tenth Circuit

Page 20

968 F.2d 20

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

NORTH AMERICAN UNIVERSITY; Global Church of God; Edward P Reddeck, Jr., Plaintiffs-Appellants, v. STATE OF UTAH; Utah Board of Regents; Sterling Provost Berniece Goebel, Secretary of Provost; Harden R. Eyring Attorney; Paul Van Dam, Atty. General; Joseph E. Tesch Asst. Atty. Gen.; Brian Adamson, Investigator; Ron Miller, Investigator; State of Missouri; Robert Jacobs, Director, State Department of Education; William Webster, Atty. General Missouri; Eric Veith, Asst. Atty. Gen.; John Bear; International Institute for Advanced Studies, (Bear's School); Ten Speed Press; Teacher Magazine; Lisa Wolcott; U.S. Department of Education; Federal Bureau of Investigation; Copa; U.S. Department of Justice; Allen Ezel, F.B.I. Agent; Dean Despain; Michelle Despain; Inside Edition; Bill O'Reilly, Announcer; Bob Young, Reporter; Cindi Frye, Asst. Producer; Cornelius W. Hyzer, Attorney; Keven Basnight, Student; Kenneth Murphy Boyd, Student; 500 Does; Cindy Freishtat, a/k/a Cindi Frye or Cindy Frye aka Cindi Frye; Council on Post Secondary Accreditation, Defendants-Appellees.

No. 91-4053.

United States Court of Appeals, Tenth Circuit.

June 25, 1992.

Before STEPHEN H. ANDERSON and BALDOCK, Circuit Judges, and CONWAY, ^* District Judge. ^**

ORDER AND JUDGMENT ^***

BALDOCK, Circuit Judge.

Plaintiffs-appellants appeal from the district court's dismissal of their complaint with prejudice pursuant to Fed.R.Civ.P. 41(b). ¹ Plaintiffs' original complaint, filed pro se by Edward P. Reddeck, asserted twelve numbered causes of action and seven claims for relief against numerous named defendants and five hundred unnamed defendants. Following extensive pre-trial motions by both defendants and plaintiffs, plaintiffs retained Glenn Mecham as counsel.

At a hearing on January 23, 1991, facing motions to dismiss on various jurisdictional grounds, motions to strike, motions for more definite statement, and motions for summary judgment, the district court granted plaintiffs' motion to continue to allow Mecham time to review the case and to file either notices of dismissal or amended pleadings. I R. doc. 47; I R.S. 11. The district court's order, dated February 13, 1991, states: "The plaintiff shall have until March 1, 1991, to make any amendments to its pleadings and serve all current and prospective defendants with the appropriate pleadings and process, and motions or stipulations for dismissal. If this is not accomplished, the Complaint shall be dismissed with prejudice." I R. doc. 48 at 2.

Shortly before the March 1, 1991, deadline, Mecham notified plaintiffs of his intent to withdraw, and advised plaintiffs that either Edward P. Reddeck or substitute counsel should appear in district court for a March 7, 1991, hearing. On March 6, plaintiffs filed a Motion for Extension of Time and Continuance in district court to enable them to retain new counsel and prepare amended pleadings. I R. doc. 50. Neither plaintiffs nor new counsel appeared at the March 7 hearing. The district court allowed Mecham to withdraw and, based on its February 13, 1991, order, dismissed plaintiffs' complaint with prejudice. The court ruled that plaintiffs had notice of the February 13 order, of Mecham's intent to withdraw, and of the March 7 hearing. II R.S. 22. It also ruled that plaintiffs' March 6 motion for extension of time was untimely, as filed after the March 1, 1991, deadline. Id.

On appeal, plaintiffs argue that 1) requiring corporations to be represented by counsel violates natural law and various constitutional rights, 2) its counsel, Mecham, was ineffective, and 3) the district court judge, Mecham, defendants' attorneys, the State of Utah, and the United States conspired to deprive plaintiffs of their constitutional rights, including due process and access to the courts. We agree with defendants, however, that in this challenge to the district court's ruling, the single issue for appellate review is whether the district court abused its discretion in dismissing plaintiffs' complaint. See Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir.1991) (in absence of discussion of issues, court will not construct arguments for pro se litigant despite liberal construction standard); Smith v. United States, 834 F.2d 166, 170 (10th Cir.1987) (41(b) dismissal for failure to prosecute reviewed under abuse of discretion standard, citing Link v. Wabash R.R., 370 U.S. 626, 633 (1962)); Holloway v. United States, 734 F.2d 506, 508 (10th Cir.1984) (per curiam) (same). " 'Under the abuse of discretion standard, a trial court's decision will not be disturbed unless the appellate court has a definite and firm conviction that the lower court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances.' " McEwen v. City of Norman, 926 F.2d 1539, 1553-54 (10th Cir.1991) (quoting United States v. Ortiz, 804 F.2d 1161, 1164 n. 2 (10th Cir.1986)); see Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir.1991) (same, in 41(b) context).

" 'A dismissal, with prejudice, is a harsh sanction,' " but within the discretionary power of the district court. United States v. Berney, 713 F.2d 568, 571 (10th Cir.1983) (quoting Davis v. Operation Amigo, Inc., 378 F.2d 101, 103 (10th Cir.1967)). Following our review of the parties' briefs and the record, including hearing transcripts, we conclude the district court did not abuse its discretion. Plaintiffs had clear and ample...