Date: 05-29-2018

Case Style:

Case Number: 17-1430

Judge: Scott M. Matheson, Jr.

Court: United States Court of Appeals for the Tenth Circuit on appeal from the District of Colorado (Denver County)

Plaintiff's Attorney: Not Available

Defendant's Attorney: Rachelle Elizabeth Hill, Joshua B. Kirkpatrick, Lauren Elizabeth Meyerholz

Description: Plaintiff-Appellant Willie Harrington sued Defendant-Appellee Ozark Waffles,
L.L.C. (“Ozark”) in state court alleging employment discrimination. Construing the
claim as based on Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.,
Ozark removed the case to federal district court. Based on Mr. Harrington’s failure to
prosecute, the district court dismissed the case with prejudice under Federal Rules of
* This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
** After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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.
FILED
United States Court of Appeals
Tenth Circuit
May 29, 2018
Elisabeth A. Shumaker
Clerk of Court
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Civil Procedure 37(b) and 41(b) and denied Mr. Harrington’s motion under Rule 60(b) to
vacate the judgment.1 Mr. Harrington appears to attempt to appeal both orders.2
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court’s
dismissal of this case with prejudice, and we dismiss the appeal of the district court’s
denial of the Rule 60(b) motion for lack of jurisdiction.
I. BACKGROUND
Mr. Harrington filed his complaint in state court in April 2016. After removal, the
federal district court set a status conference for August 11, 2016. Mr. Harrington failed
to appear. The court set another status conference for August 25, 2016. He failed to
appear again. Mr. Harrington finally attended a status conference on November 1, 2016,
and a scheduling conference on December 14, at which the court set various deadlines,
including a discovery cut-off of May 15, 2017. Mr. Harrington refused to respond to
discovery requests and did not otherwise participate in the litigation.
On August 7, 2017, the court ordered Mr. Harrington to pay attorney fees for his
failure to respond to discovery requests. When he failed to respond to Ozark’s motion to
dismiss, the court, on August 11, 2017, warned that if he did not respond by August 28,
the case would be dismissed with prejudice. Despite this warning, Mr. Harrington did
not respond. The court analyzed the factors for dismissal with prejudice under
Ehrenhaus v. Reynolds, 965 F.2d 916 (10th Cir. 1992), and granted the motion.
1 A magistrate judge adjudicated all matters in this case under 28 U.S.C.
§ 636(c).
2 Because Mr. Harrington is pro se, we liberally construe his filings but do not
act as his advocate. Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
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On October 27, 2017, Mr. Harrington filed an untitled motion to vacate the
judgment because of his inability to receive mail. Construing the motion as asking for
relief due to mistake or excusable neglect under Rule 60(b)(1), the court, noting that Mr.
Harrington should have provided an alternative address to the court, denied the motion.
II. DISCUSSION
A. Dismissal with Prejudice
“We review dismissals under Rule 41(b) for abuse of discretion.” Nasious v. Two
Unknown B.I.C.E. Agents, 492 F.3d 1158, 1161 (10th Cir. 2007); see also Auto-Owners
Ins. Co. v. Summit Park Townhome Ass’n, 886 F.3d 852, 859-61 (10th Cir. 2018).
Mr. Harrington’s briefing on appeal is sparse and fails to show the court abused its
discretion. In his opening brief, he lists “59 E” and “59 b” and states that the district
court applied the wrong law. Aplt. Br. at 3-4. We assume he is referencing Federal
Rules of Civil Procedure 59(e), which provides that “[a] motion to alter or amend a
judgment must be filed no later than 28 days after the entry of the judgment,” and 59(b),
which provides that “[a] motion for a new trial must be filed no later than 28 days after
the entry of judgment.” Mr. Harrington also cites two cases from the Massachusetts
Court of Appeals—Albano v. Bonanza Int’l Dev. Co., 5 Mass. App. Ct. 692 (1977), and
Arthur D. Little, Inc. v. E. Cambridge Sav. Bank, 35 Mass. App. Ct. 734 (1994). He does
not explain how either rule or either case supports a challenge to the district court’s
orders, nor can we discern any such support from these authorities.
Also in his opening brief, Mr. Harrington states that he “never signed a lease any
place still living in the same residence since 2010.” Aplt. Br. at 4. He states that he
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“never ignored a summons to appear in court, never served officer or received anything
certified mail. I didn’t destroy or vandalize my mail box. The property has about 14
mail boxes other than mine that are defected also.” Id. Neither of these statements shows
the district court abused its discretion in dismissing this case with prejudice for failure to
prosecute.
In his reply brief, Mr. Harrington attempts to shift responsibility to counsel for
Defendant-Appellee, whom, he says, the court “instructed . . . to work with me Willie
Harrington since I am representing myself” and that he “never received an email or phone
call” from defense counsel’s law firm. Aplt. Reply Br. at 2. Ozark’s response brief states
that “all correspondence was sent to [Mr. Harrington’s] address of record, and many of
Defendant-Appellee’s communications were confirmed delivered.” Aplee. Br. at 5. We
need not resolve this factual dispute because doing so would not alter our conclusion that
the district court did not abuse its discretion.
B. Denial of Rule 60(b) Motion
After the district court dismissed this case with prejudice, it entered a final
judgment on October 24, 2017. On October 27, Mr. Harrington filed his untitled motion
to vacate the judgment, which tolled the time to appeal. Fed. R. App. P. 4(a)(4)(A)(vi).
On November 28, 2017, he filed a notice of appeal from the final judgment. On that
same day, this court abated the appeal pending the district court’s disposition of his
pending post-judgment motion, which the court denied on January 25, 2018. We then
lifted the abatement.
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Mr. Harrington did not file a notice of appeal or an amended notice of appeal from
the order denying his post-judgment motion. Id. 4(a)(4)(B)(ii). As a result, the district
court’s order denying the post-judgment motion under Rule 60(b)(1) is not within the
scope this appeal. We dismiss any challenge to the denial of that motion based on our
lack of jurisdiction.

Outcome: We (1) affirm the district court’s dismissal of this case under Federal Rules of
Civil Procedure 37(b) and 41(b), (2) dismiss Mr. Harrington’s challenge to the
district court’s denial of his post-judgment motion under Federal Rule of Civil
Procedure 60(b)(1), and (3) deny his request to proceed in forma pauperis on appeal.

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