United States v. Rayco, Inc., 616 F.2d 462 (10th Cir. 1980). · Go Syfert
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United States v. Rayco, Inc., 616 F.2d 462 (10th Cir. 1980). Cases Citing This Book View Copy Cite
28 citation events (4 in the last 25 years) across 5 distinct courts.
Strongest positive: Lewis v. Independent School (ca10, 1999-12-10)
Treatment trajectory · 1980 → 2026 · click a year to view as-of
1980 2003 2026
Top citers, strongest first. 19 distinct citers. How cited ↗
discussed Cited as authority (rule) Lewis v. Independent School
10th Cir. · 1999 · confidence medium
Leonard Tire Co. v. Rayco, Inc. , 616 F.2d 462, 464 (10th Cir. 1980) (reviewing exclusion of exhibit not included in pretrial order for abuse of discretion).
discussed Cited "see" Harris v. Remington Arms Company
10th Cir. · 2021 · signal: see · confidence high
See United States v. Rayco, Inc., 616 F.2d 462, 464 (10th Cir. 1980) (concluding that the defendant failed to preserve an argument by forgoing an opportunity to ask the district court to amend the pretrial order to permit an additional exhibit).
cited Cited "see" Gruppo v. Fedex Freight System, Inc.
10th Cir. · 2008 · signal: see · confidence high
See United States v. Rayco, Inc,, 616 F.2d 462, 464 (10th Cir.1980).
cited Cited "see" Clarksville-Montgomery County School System v. United States Gypsum Company, National Gypsum Company
6th Cir. · 1991 · signal: see · confidence high
See United States v. Rayco, Inc., 616 F.2d 462 , 464 (10th Cir.1980) (broad powers of enforcement inure to a pretrial order limiting issues to be tried and evidence to be introduced).
cited Cited "see" Ccms Publishing Company, Inc. v. Dooley-Maloof, Inc. Raintree Communications, Inc. Charles J. Dooley, Individually and Thomas L. Maloof, Individually
10th Cir. · 1981 · signal: see · confidence high
See Smith v. Ford Motor Co., 10 Cir., 626 F.2d 784, 795-796 , and United States v. Rayco, Inc., 10 Cir., 616 F.2d 462 , 464.
discussed Cited "see, e.g." Estes v. King's Daughter Medical Center
6th Cir. · 2003 · signal: see also · confidence low
Advisory Committee notes to Fed.R.Civ.P. 16(f) (1983); see also United States v. Rayco, Inc., 616 F.2d 462 , 464 (10th Cir.1980) (broad powers of enforcement inure to a pretrial order limiting issues to be tried and evidence to be introduced).
discussed Cited "see, e.g." Mullen v. Household Bank-Federal Bank
10th Cir. · 1989 · signal: see, e.g. · confidence low
See, e.g., United States v. Rayco, Inc., 616 F.2d 462 , 464 (10th Cir.1980). 11 Stafford v. Commissioner, 805 F.2d 895, 896 (10th Cir.1986); Stafford v. Commissioner, 805 F.2d 893, 894-95 (10th Cir.1986). 12 In light of plaintiff's legally frivolous appeal, an award of damages and double costs is justified.
cited Cited "see, e.g." Mullen v. Household Bank-Federal Savings Bank
10th Cir. · 1989 · signal: see, e.g. · confidence low
See, e.g., United States v. Rayco, Inc., 616 F.2d 462 , 464 (10th Cir.1980).
cited Cited "see, e.g." Atkinson v. O'Neill
10th Cir. · 1989 · signal: see, e.g. · confidence low
See, e.g., United States v. Rayco, Inc., 616 F.2d 462 , 464 (10th Cir.1980).
discussed Cited "see, e.g." Atkinson v. O'neill
10th Cir. · 1989 · signal: see, e.g. · confidence low
See, e.g., United States v. Rayco, Inc., 616 F.2d 462 , 464 (10th Cir.1980). 10 Stafford v. Commissioner, 805 F.2d 895, 896 (10th Cir.1986); Stafford v. Commissioner, 805 F.2d 893, 894-95 (10th Cir.1986). 11 In light of plaintiff's legally frivolous appeal, an award of damages and double costs is justified.
cited Cited "see, e.g." Stafford v. Commissioner
10th Cir. · 1986 · signal: see, e.g. · confidence low
See, e.g., United States v. Rayco, Inc., 616 F.2d 462 , 464 (10th Cir.1980).
cited Cited "see, e.g." Van Stafford and Lois Stafford v. Commissioner of Internal Revenue
10th Cir. · 1986 · signal: see, e.g. · confidence low
See, e.g., United States v. Rayco, Inc., 616 F.2d 462 , 464 (10th Cir.1980).
cited Cited "see, e.g." James H. Betz v. United States
10th Cir. · 1985 · signal: see, e.g. · confidence low
See, e.g., United States v. Rayco, Inc., 616 F.2d 462 , 464 (10th Cir.1980).
cited Cited "see, e.g." John L. Clark v. Commissioner of Internal Revenue
10th Cir. · 1984 · signal: see, e.g. · confidence low
See, e.g., United States v. Rayco, Inc., 616 F.2d 462 , 464 (10th Cir.1980).
cited Cited "see, e.g." Margarito Martinez, Patricia Martinez v. Internal Revenue Service
10th Cir. · 1984 · signal: see, e.g. · confidence low
See, e.g., United States v. Rayco, Inc., 616 F.2d 462 , 464 (10th Cir.1980).
cited Cited "see, e.g." Gladwin C. Lamb v. Commissioner of Internal Revenue
10th Cir. · 1984 · signal: see, e.g. · confidence low
See, e.g., United States v. Rayco, Inc., 616 F.2d 462 , 464 (10th Cir.1980).
cited Cited "see, e.g." Tom Moulton v. Commissioner of Internal Revenue
10th Cir. · 1984 · signal: see, e.g. · confidence low
See, e.g., United States v. Rayco, Inc., 616 F.2d 462 , 464 (10th Cir.1980).
cited Cited "see, e.g." Buddy L. Snead and Ligaya Snead v. Commissioner of Internal Revenue
10th Cir. · 1984 · signal: see, e.g. · confidence low
See, e.g., United States v. Rayco, Inc., 616 F.2d 462 , 464 (10th Cir.1980).
discussed Cited "see, e.g." David M. Cummings v. United States of America and Colonel James M. Sigler
5th Cir. · 1981 · signal: see also · confidence low
See also United States v. Rayco, Inc., 616 F.2d 462 , 464 (10th Cir. 1980) (appellate court assesses a specific amount of attorney’s fees due to frivolous appeal); Overmyer v. Fidelity and Deposit Co. of Maryland, 554 F.2d 539, 543 (2d Cir. 1977) (same); Teledyne Industries, Inc. v. Podell, 546 F.2d 495 (2d Cir. 1976) (sáme).
Retrieving the full opinion text from the archive…
United States of America, for the Use of Leonard Tire Company, a New Mexico Corporation
v.
Rayco, Inc., a North Dakota Corporation, and Russell E. Logan and Terry E. Logan, Individuals
79-1158.
Court of Appeals for the Tenth Circuit.
Feb 27, 1980.
616 F.2d 462
Cited by 2 opinions  |  Published

616 F.2d 462

5 Fed. R. Evid. Serv. 751

UNITED STATES of America, for the use of Leonard Tire
Company, a New Mexico Corporation, Plaintiff-Appellee,
v.
RAYCO, INC., a North Dakota Corporation, and Russell E.
Logan and Terry E. Logan, Individuals,
Defendants-Appellants.

No. 79-1158.

United States Court of Appeals,
Tenth Circuit.

Submitted Nov. 9, 1979.
Decided Feb. 27, 1980.

Lyman G. Sandy, Poole, Tinnin & Martin, Albuquerque, N. M., for plaintiff-appellee.

William F. Aldridge, Cohen & Aldridge, Albuquerque, N. M., for defendants-appellants.

Before BARRETT, DOYLE and McKAY, Circuit Judges.

McKAY, Circuit Judge.

[*~462]1

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App. P. 34(a); Tenth Cir. R. 10(e). The cause is therefore ordered submitted without oral argument.

2

Leonard Tire Company, the use plaintiff, brought this action against Rayco, Incorporated, and its Miller Act sureties, see 40 U.S.C. § 270b, to recover compensation for tires and tire maintenance services. Leonard contended at trial that it provided the tires and services to Rayco for use in a government construction project, and compensation under the Miller Act, 40 U.S.C. § 270a, was therefore proper. Rayco insisted that the tires and services were supplied not for the government project, but to prepare Rayco's equipment for sale at an auction. The district court found in favor of Leonard and entered a judgment against Rayco and its sureties for compensation, costs and attorney fees. The only issue on appeal is whether the district court abused its discretion in excluding an exhibit offered by Rayco at trial because the exhibit had not appeared on a list required by the pretrial order.

3

Rayco argues, first, that the court went beyond its authority in unilaterally imposing on the parties an order to exchange exhibit lists. To the contrary, the pretrial order entered in this case, signed by Rayco's attorneys as "Approved," specially provided in paragraph XII:

4

This pre-trial order has been formulated with the cooperation of counsel for the respective parties, reasonable opportunity has been afforded counsel for corrections or additions prior to signing by the Court. Hereafter, this order will control the course of the trial . . . .

5

Record, vol. 1, at 154. This order required the exchange of exhibit lists. At a later conference, the court warned Rayco's counsel of the consequences of failure to comply with the filed pretrial order:

6

THE COURT: Now, I want copies of those lists, witness lists, exhibit lists, and whatnot. And tell your Dakota people, Mr. Aldridge, that if they don't comply, there may not be any trial, I'll just enter a default judgment. That will clear matters up

7

MR. ALDRIDGE: Yes, Your Honor.

8

THE COURT: Because the Magistrate indicates it's his belief there's been less than adequate cooperation from them, either with local counsel or with the Court and we're just we'll, of course, take whatever sanctions are necessary to see that the lawsuits are properly prepared and presented.

9

Record, vol. 3, at 7. The court's comments clearly refer to the terms of the pretrial order drafted by the parties.

10

Rayco attempts to distinguish this case from those in which the enforced pretrial order limited issues to be tried, rather than the evidence to be introduced. This distinction is specious. The same broad powers of enforcement inure to a pretrial order limiting exhibits. See Westric Battery Co. v. Standard Electric Co., 522 F.2d 986, 990 (10th Cir. 1975); Hoeppner Construction Co. v. United States, 287 F.2d 108, 112 (10th Cir. 1960); 6 C. Wright & A. Miller, Federal Practice & Procedure § 1525, at 589 (1971).

11

Finally, Rayco contends that if there were a valid pretrial order, it should have been amended at trial "to prevent manifest injustice." Fed.R.Civ. P. 16. However, the trial court could not have determined that any injustice would result, because Rayco did not tender the document, make an offer of proof, or provide the court with any indication of the document's importance. See Fed.R.Evid. 103(a)(2). Further, since it is not part of the record, we also are unable to determine that the contents of the exhibit were so central to Rayco's case that its exclusion prevented examination of the real issues. Cf. Central Distributors, Inc. v. M.E.T., Inc., 403 F.2d 943, 946 (5th Cir. 1968). Rayco did not protest the requirement of an exhibit list or seek to amend the pretrial order either before or during trial. Under the circumstances we will not consider these complaints raised for the first time on appeal. See United States ex rel. N.C. Ribble Co. v. Rayco, Inc., No. 79-1139 (10th Cir. June 12, 1979). The court's specific warning that dire consequences would follow the failure to submit an exhibit list makes us unsympathetic to Rayco's belated claim that its most critical piece of evidence was mistakenly overlooked during trial preparation. Rayco's conduct in unreasonably delaying and complicating the lawsuit,[1] worked a hardship upon Leonard that would have been compounded had the district court admitted a surprise exhibit or granted a continuance.

12

The record in this case and the arguments made on appeal convince us not only that there was no abuse of discretion by the district court, but also that the appeal by Rayco is frivolous. Pursuant to 28 U.S.C. § 1912 and Fed.R.App. P. 38, we award to Leonard double costs and attorney fees of $500.00.

[*~463]13

AFFIRMED.

1

In deposition, Ray Clairmont, Rayco's president, admitted he was deliberately stalling the litigation to induce Rayco's subcontractors to press the Corps of Engineer to pay amounts allegedly owed