UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

RAMON MENDEZ,

Plaintiff-Appellant,

v.

SCOTT BROWN, Deputy Sheriff; JOHN WHETSEL, Sheriff; BOARD OF COUNTY COMMISSIONERS OF OKLAHOMA COUNTY,

Defendants-Appellees.

No. 00-6071

(D.C. No. 99-CV-874)

(W.D. Okla.)

ORDER AND JUDGMENT*

Before TACHA, Chief Judge, EBEL and BRISCOE, Circuit Judges.

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)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

Plaintiff Ramon Mendez appeals from the district court's grant of summary judgment, in accordance with a local rule, because of his failure to respond to defendants' summary judgment motion, and from the court's denial of his motion for reconsideration. For the reasons stated below, we affirm.

Plaintiff brought this action against defendants under 42 U.S.C. § 1983 and state law alleging violation of his constitutional rights to be free from false arrest and from cruel and unusual punishment and alleging assault and battery.1 On January 3, 2000, defendants moved for summary judgment on several grounds. Although plaintiff subsequently filed witness and exhibit lists in preparation for trial, he never filed a response to the summary judgment motion. On February 9, the district court issued an order noting that more than eighteen days had passed since defendants filed their motion and that plaintiff had failed to respond. Citing Local Rule 7.1(e), which provides that a motion not opposed within eighteen days may be deemed confessed,2 the district court "in its discretion deem[ed] the Defendants' Motion to be confessed," and granted summary judgment to defendants. Appellant's App. at 41. The court further ordered that its ruling "[would] be reconsidered only in accordance with Rule 60(b), Fed. R. Civ. Pro. and Hancock v. City of Oklahoma City, 857 F.2d 1394, 1396 (10th Cir. 1988); Meade v. Grubbs, 841 F.2d 1512, 1520-1522 (10th Cir. 1988); DG Shelter Products Co. v. Forest Products Co., 769 F.2d 644, 645 (10th Cir. 1985)." Appellant's App. at 41. On February 11, plaintiff filed a motion for reconsideration on the grounds that the failure to respond to the summary judgment motion was due to mistake, inadvertence, and excusable neglect on the part of plaintiff's counsel. The district court denied the motion for reconsideration, although it altered its dispositive analysis in a significant respect discussed below.

Plaintiff filed a timely notice of appeal and challenges both the initial grant of summary judgment and the denial of his motion for reconsideration. We review a district court's grant of summary judgment based on a party's failure to respond to a summary judgment motion, in violation of a local rule, for an abuse of discretion. Hancock, 857 F.2d at 1395. We review the denial of a motion for reconsideration, which we construe as filed pursuant to Fed. R. Civ. P. 59(e),3 under the same standard. Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir. 1997). Without addressing the appropriateness of the district court's initial grant of summary judgment, we affirm on the basis of its analysis on reconsideration.

When a court grants summary judgment and dismisses a case for failing to respond to a summary judgment motion in violation of a local rule, we apply a fairly rigorous standard to the court's action; that is, we require a court to consider on the record "(1) the degree of actual prejudice to the defendant; (2) the amount of interference with the judicial process; and (3) the culpability of the litigant." Hancock, 857 F.2d at 1396. We impose this rigorous standard because entry of an adverse judgment for violation of a local rule is a severe sanction that is appropriate only when a lesser sanction would not serve the ends of justice.4 Id.; Meade v. Grubbs, 841 F.2d 1512, 1520 (10th Cir. 1988). On reconsideration here, however, the court sanctioned plaintiff's noncompliance with the local rule by simply deeming defendants' statement of uncontested facts admitted. This exercise of the court's discretion is not subject to the stringent considerations imposed by cases such as Hancock and Meade. Although it may ultimately result in a grant of summary judgment, deeming facts admitted is not the same as imposing the harsh and conclusive sanction of an adverse judgment on the noncomplying party. We therefore evaluate the district court's discretion in this regard under the general standard, which defines an abuse of discretion as "an arbitrary, capricious, whimsical or manifestly unreasonable judgment." FDIC v. Oldenburg, 34 F.3d 1529, 1555 (10th Cir. 1994) (quotations omitted); cf. Sports Racing Servs., Inc. v. Sports Car Club of Am., Inc., 131 F.3d 874, 894 (10th Cir. 1997) (reviewing exclusion of evidence at summary judgment stage of proceedings for abuse of discretion).

On appeal, plaintiff argues that the district court abused its discretion in denying his motion for reconsideration because the failure to respond to the summary judgment motion was due to his counsel's ignorance of Local Rule 7.1(e), not counsel's intentional disregard of that rule, and because the failure to respond was not part of a pattern of delay and neglect on his part. He further contends that any penalty should have been imposed on counsel rather than plaintiff. We see no abuse of discretion. The court noted that plaintiff, through his counsel, was aware defendants' summary judgment motion had been filed and chose not to respond to it, or move that it be stricken, because of its alleged untimeliness. The court also noted, correctly, that plaintiff, through his counsel, should have been aware of Local Rule 7.1(e).5 Parties choose their counsel and generally are bound by their acts. See Link v. Wabash R.R. Co., 370 U.S. 626, 633-34 (1962); Sec. Nat'l Bank v. John Deere Co., 927 F.2d 519, 520 (10th Cir. 1991) ("[I]t is a fundamental principle of our representational legal system . . . that a party acts through chosen counsel, whose carelessness or ignorance, therefore, generally does not constitute grounds for relief for his client."). Under these circumstances, the court's decision to deem defendants' asserted facts admitted was not arbitrary or unreasonable.

The final matter is to determine whether defendants were in fact entitled to summary judgment. The district court held that based on the deemed admissions, defendants were entitled to summary judgment. Although the court provided no legal analysis supporting its conclusion, plaintiff has not challenged the court's determination on appeal. Plaintiff has thereby waived any challenge to the legal basis for the court's ruling. State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994). Accordingly, we affirm the entry of judgment against plaintiff.

AFFIRMED.

Entered for the Court

David M. Ebel

Circuit Judge

No. 00-6071, Mendez v. Brown

BRISCOE, Circuit Judge, dissenting:

I respectfully dissent from the majority opinion. I would conclude the district court abused its discretion in granting defendant's summary judgment motion and in denying plaintiff's motion for reconsideration.

In Meade v. Grubbs, 841 F.2d 1512, 1520, 1521 n.7 (10th Cir. 1988), we noted three aggravating factors which are generally the focus for district courts in determining whether to deem a matter confessed for violation of local rules: (1) the degree of actual prejudice to the defendant; (2) the amount of interference with the judicial process; and (3) the culpability of the litigant. We further noted that "only when these aggravating factors outweigh the judicial system's strong predisposition to resolve cases on their merits is outright dismissal with prejudice an appropriate action." Id. In Meade, we applied these factors and concluded that dismissal with prejudice was unwarranted.

According to the majority opinion, the Meade standard does not apply because the district court "sanctioned plaintiff's noncompliance with the local rule by simply deeming defendants' statement of uncontested facts admitted." Op. at 4. However, the effect of the court's action was to deem defendant's summary judgment motion confessed. Where a summary judgment motion is deemed confessed as a result of counsel's failure to comply with a local rule, we apply the Meade standard. For example, in Hancock v. City of Oklahoma City, 857 F.2d 1394, 1395 (10th Cir. 1988), this court applied the Meade test where a litigant failed to respond to a summary judgment motion and the motion was deemed confessed pursuant to local rules. See also Green v. Dorrell, 969 F.2d 915, 916-
17 (10th Cir. 1992) (applying Meade where plaintiff failed to respond to motion to dismiss and the motion was deemed confessed).

After applying the Meade factors, I would conclude the district court's denial of the plaintiff's request for an extension of time was unreasonable and an abuse of discretion. The district court found this case had been set on the March 2000 docket since October 1999, and that allowing plaintiff to file a late response to the summary judgment motion would delay the trial. The complaint was filed in June 1999. There is no evidence that delaying the case to the April or May 2000 docket would have prejudiced defendant or the court.

The district court found that the litigant was culpable because plaintiff's counsel deliberately chose not to respond to the motion for summary judgment. There is no evidence to support the conclusion that plaintiff's counsel knew that his response was due and failed to file it. To the contrary, plaintiff argues his counsel failed to read Local Rule 7.1(e) and believed, based upon Federal Rule of Civil Procedure 56, that no brief was due until the hearing was scheduled. While failure to read local rules is certainly not a laudable excuse, it is no more culpable than counsel's conduct in Hancock, where plaintiff's counsel was given the motion for summary judgment and did not notice it in a stack of papers until after the time to respond had passed. The distinction we should draw is the difference between intentional, informed conduct and negligent conduct. Counsel's conduct here was at most negligent and as in Hancock should not result in the entry of summary judgment for the defendants.

The district court did not evaluate whether the aggravating factors outweighed the judicial system's interest in resolving cases on the merits. However, a slight delay because of failure to read local rules is insufficient to outweigh the interest in resolving cases on the merits.

I would reverse and remand to permit summary judgment briefing to proceed.