UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

TINA ARMSTRONG,

Plaintiff-Appellant,

v.

LA QUINTA INNS, INC., a Delaware corporation,

Defendant-Appellee,

.

ERIC D. DIXON,

Real Party In Interest-Appellant.

No. 01-2150

(D.C. No. CIV-99-531-BB)

(D. N.M.)

ORDER AND JUDGMENT*

Before TACHA, Chief Judge, SEYMOUR, Circuit Judge, and BRORBY, Senior Circuit Judge.

After examining the briefs and appellate record, this panel has determined unanimously to grant the parties' request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

Eric D. Dixon, counsel for plaintiff and real party in interest-appellant, is appealing from the district court's order imposing sanctions against him under Fed. R. Civ. P. 11. He is also appealing the district court's subsequent orders denying his motion for reconsideration and ordering him to pay defendant $2,860.00 in attorneys' fees. We affirm.

Prior to the commencement of the trial in this diversity case, Mr. Dixon served trial subpoenas on several nonparty witnesses who were located outside of the District of New Mexico and more than 100 miles from the place of trial. Because the witnesses were beyond the subpoena power of the district court under Fed. R. Civ. P. 45(b)(2),1 the court quashed the subpoenas. As a result, during the first two days of trial, Mr. Dixon ran out of witnesses during plaintiff's case-in-
chief, and this resulted in wasted preparation and trial time for both defendant's counsel and the court.

Following the entry of judgment in favor of defendant, defendant moved for sanctions against Mr. Dixon under Rule 11. The district court granted the motion, finding that Mr. Dixon wasted trial time by designating the nonparty witnesses as "will call" witnesses in the pretrial order even though he did not have a reasonable basis for securing their attendance at trial by subpoena or voluntary appearance. Subsequently, after denying Mr. Dixon's motion for reconsideration and after Mr. Dixon dismissed a premature appeal to this court, the district court ordered Mr. Dixon to pay defendant $2,860.00 in attorneys' fees.

We review all aspects of the district court's Rule 11 determination under an abuse of discretion standard. See Coffey v. Healthtrust, Inc., 955 F.2d 1388, 1393 (10th Cir. 1992). Having carefully reviewed the record and the arguments of counsel, we hold that the district court's award of attorneys' fees was not an abuse of discretion.2

The orders of the United States District Court for the District of New Mexico are AFFIRMED.

Entered for the Court

Deanell Reece Tacha

Chief Judge