UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

In Re: RICHARD RAMSEY HOPKINS and CHERILYN BAKER HOPKINS,

Debtors,

___________________________

O'MELVENY & MYERS; GIBSON, DUNN & CRUTCHER, LLP,

Plaintiffs-Appellees,

v.

RICHARD RAMSEY HOPKINS,

Defendant-Appellant.	No. 98-1186

(D.C. No. 97-AP-888 (Consolidated with D.C. No. 97-AP-2263))

(D. Colo.)

ORDER AND JUDGMENT*

Before BALDOCK, EBEL and MURPHY, Circuit Judges.

Richard Ramsey Hopkins, proceeding pro se, appeals the district court's dismissal of his consolidated bankruptcy appeal for failure to prosecute in accordance with the local rules and previous orders of the court. We reverse and remand.

On April 30, 1997, the district court held a pre-briefing conference on Hopkins' appeal of a grant of summary judgment in D.C. No. 97-AP-888 ("Appeal 1"), and issued a Minute Order specifying that "[t]he opening brief and the response brief shall not exceed 10 pages in length." (Dkt. # 48, Ex. A at 2, Supp. Vol. VI.) On October 20, 1997, the district court held a pre-briefing conference on Hopkins' appeal of a grant of summary judgment in a related case, D.C. No. 97-AP-2263 ("Appeal 2"), and again issued a Minute Order specifying that the opening and response briefs should not exceed 10 pages. (Dkt. # 48, Ex. B at 2, Supp. Vol. VI.)1 On January 30, 1998, Hopkins filed two briefs in the district court, one for each of his consolidated appeals. (Dkt. # 46 & 47, Vol. I.) The brief in Appeal 1 was 19 pages single-spaced, (Dkt. # 46, Vol. I); the brief in Appeal 2 was 8 pages single-spaced, (Dkt. # 47, Vol. I). The Appellees, O'Melveny & Meyers and Gibson, Dunn & Crutcher LLP, moved to strike the briefs, (Dkt. # 48, Supp. Vol. VI), and Hopkins responded with a request for relief from the local rules, (Dkt. # 49, Supp. Vol. VI). On February 18, 1998, the district court denied Hopkins' request for relief from the local rules, and accepted the recommendation of the magistrate judge that the briefs be stricken "for failure to comply with D.C. Colo. LR 5.1F, which requires that all papers be double spaced and for raising a new issue on appeal." (Dkt. # 50 at 1-2; 51, Supp. Vol. VI.)2

On March 2, 1998, Hopkins filed a motion to amend his briefs and attached two amended briefs "in the event this request is granted." (Dkt. # 54, Vol. I.) The amended brief in Appeal 1 was 14 pages double-spaced and the amended brief in Appeal 2 was 8 pages double-spaced. (Dkt. # 54, Ex. A & B, Vol. I.) The amended brief in Appeal 1 retained the new issue, (see Aplt. Brief at 2), and the amended brief in Appeal 2 incorporated by reference significant portions of the amended brief in Appeal 1. (Dkt. # 54, Ex. B at 2, 3, 8, Vol. I.) On March 30, 1998, the magistrate judge issued a recommendation that Hopkins' motion be denied, and that Hopkins' consolidated appeal be dismissed for failure to prosecute "in accordance with the rules of this Court as set forth in the previous orders of this Court." (Dkt. # 57, Vol. I.) On April 14, 1998, the district court adopted the magistrate judge's recommendation and dismissed the appeal. (Dkt. # 60, Vol. I.)

We review the district court's dismissal for failure to prosecute for abuse of discretion. See Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994). Although a district court has the inherent power to dismiss an action for failure to prosecute, see Meade v. Grubbs, 841 F.2d 1512, 1520 (10th Cir. 1988), this court has characterized dismissal with prejudice as an "extreme sanction," and has cautioned district courts to consider the following factors before choosing 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. Jones v. Thompson, 996 F.2d 261, 263 (10th Cir. 1993) (quoting Ehrenhaus v. Reynolds, 965 F.2d 916, 920-21 (10th Cir. 1992)).

We find several aspects of the district court's dismissal troubling. First, unlike in Ehrenhaus, the district court did not warn Hopkins that dismissal of his claims would result from a further failure to comply with the local rules or court orders. While such a warning is not always necessary, it is a factor which we consider in determining whether the district court abused its discretion. See Ehrenhaus, 965 F.2d at 919, 922. Second, the magistrate judge's recommendation to strike Hopkins' first set of briefs, adopted by the district court in its order striking the briefs, made no reference to the page limit set out in the previous orders, but instead pointed to Hopkins' failure to comply with the local rule requiring double-spacing, and to his raising a new issue. (See Dkt. # 50 at 1-2; 51 Supp. Vol. VI.) In light of this omission, which had the potential of misleading Hopkins into thinking that the court would not strictly apply its page limit,3 Hopkins failure to adhere to the page limit after significantly shortening his briefs does not appear quite so egregious.4 Third, Hopkins' amended briefs cured the single-spacing defect explicitly enunciated in the magistrate judge's recommendation. Although Hopkins' amended brief in Appeal 1 still retained the new issue, the ordinary remedy for raising a new issue on appeal is not dismissal but rather a refusal to consider the new issue, and a consideration only of those issues properly raised. Fourth, and most importantly, the district court failed to consider the Ehrenhaus factors in its dismissal. Rather, the district court merely adopted the magistrate judge's terse recommendation that the appeal be dismissed for failure to prosecute in accordance with the local rules as set forth in the previous court orders. (Dkt. # 57, Vol. I.) While Ehrenhaus involved dismissal as a discovery sanction under Rule 37(b)(2) of the Federal Rules of Civil Procedure, see 965 F.2d at 920, we have adopted the Ehrenhaus standard for all orders of dismissal, not just for those involving discovery disputes. See Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994).

In Mobley, where we reviewed a dismissal for failure to comply with an order dismissing a previous suit, we stated that

[t]he actions of the district court were simply not consonant with the dictates of Jones and Ehrenhaus. The trial court's failure to evaluate and weigh these relevant factors prohibits this court from engaging in any meaningful review of the trial court's decision. Accordingly, we must hold this failure amounts to an abuse of discretion. Moreover, due to the severity of the sanction actually imposed, we are particularly concerned with the trial court's failure to consider whether a lesser sanction would be appropriate in order to achieve the purposes behind sanctioning a recalcitrant litigant.

40 F.3d at 341.

As in Mobley, we are concerned particularly by the district court's lack of analysis on the fifth factor enunciated in Ehrenhaus, the efficacy of lesser sanctions. Lesser sanctions which the district could have considered include striking the new issue in the amended brief for Appeal 1, rejecting Hopkins' amended briefs and warning him that any further violations of the local rules or previous orders would result in dismissal, or issuing a contempt citation and fine. We express no opinion as to the efficacy of these lesser sanctions, but we believe that the district court at least should have analyzed the efficacy of these or other lesser sanctions. In light of the district court's failure to do so, and its failure to consider the other Ehrenhaus factors, we reverse the judgment of the district court and remand this case.

As in Mobley, we do not opine what the district court should decide on remand. See 40 F.3d at 341. Rather, if the district court again considers dismissing Hopkins' appeal, it should address the Ehrenhaus factors in making its decision.5 We reemphasize the severity of dismissal as a sanction, as dismissal "defeats altogether a litigant's right to access to the courts," Mobley, 40 F.3d at 340, and therefore is an appropriate sanction "[o]nly when the aggravating factors outweigh the judicial system's strong predisposition to resolve cases on their merits." Ehrenhaus, 965 F.2d at 921. While we do not require the district court to make an extensive report on remand, we do require that it provide us with sufficient analysis supporting any further dismissal so that we have an adequate basis to judge whether the district court acted within its discretion.6

REVERSED and REMANDED. The mandate shall issue forthwith.

ENTERED FOR THE COURT

David M. Ebel

Circuit Judge