Bud Brooks Trucking, Inc. v. Bill Hodges Trucking Co., 909 F.2d 1437 (10th Cir. 1990). · Go Syfert
Bud Brooks Trucking, Inc. v. Bill Hodges Trucking Co., 909 F.2d 1437 (10th Cir. 1990). Cases Citing This Book View Copy Cite
Quick Summary

Relief under Rule 60(b) is extraordinary and may only be granted in exceptional circumstances.

Plaintiffs filed an antitrust action that was dismissed with prejudice for failing to comply with scheduling and discovery deadlines and for missing a settlement conference. After filing an untimely notice of appeal, plaintiffs moved under Rule 60(b) to vacate the dismissal. The court addresses whether the district court abused its discretion in denying this motion. The court applies the rule that relief under Rule 60(b) is extraordinary and may only be granted in exceptional circumstances. Because the motion was filed after the appeal period expired and plaintiffs failed to demonstrate any exceptional circumstances, the court affirms the district court's denial of the motion.

180 citation events (109 in the last 25 years) across 16 distinct courts.
Treatment trajectory · 1991 → 2026 · click a year to view as-of
1991 2008 2026
Cited for
At page 1440 Grant of relief under rule 60(b) requires exceptional circumstances117 citing cases“relief under rule 60(b) is extraordinary and may only be granted in exceptional circumstances.”39 citing courts quote it · 114 listed here
  • Shaik, No. 6:24-cv-00271 (E.D. Okla. Aug. 7, 2026).
    (Relief under Rule 60(b) is extraordinary and may only be granted in exceptional circumstances.)
  • Bolongia v. Target Corp., No. 25-6205 (10th Cir. July 1, 2026).unpublished
    “However, in determining whether a district court abused its discretion, we are mindful that ‘[r]elief under Rule 60(b) is extraordinary and may only be granted in exceptional 11 Appellate Case: 25-6205 Document: 27-1 Date Filed: 07/01/202…
  • Doe, No. 25-01255 (Bankr. D. Colo. May 14, 2026).
    “Relief from judgment under Rule 60(b) falls within the discretion of the Court, but such relief is extraordinary, and should only be granted in exceptional circumstances.” Richter, 481 B.R. 682 (citing LaFluer v. Teen Help, 342 F.3d 1145,…
  • Waetzig v. Halliburton Energy Servs., 145 F.4th 1279 (10th Cir. 2025).published
    (affirming denial of Rule 60(b) relief)
  • Lynch v. Reyes, No. 23-4089 (10th Cir. Mar. 20, 2024).unpublished
    “because a Rule 60(b) motion is not a substitute for an appeal”
  • Andover Senior Care, LLC v. Called to Care Investments Kansas, LLC, No. 22-05028 (Bankr. D. Kan. Mar. 14, 2024).
    Corp. v. Marino, 893 F.2d 1143 , 1146 (10th Cir. 1990). 97 Bud Brooks Trucking, Inc. v. Bill Hodges Trucking Co., Inc., 909 F.2d 1437, 1440 (10th Cir. 1990). 98 See Pioneer Inv.
  • Utah Physicians for a Healthy Env't v. DIESELSellerz.com, No. 2:17-cv-00032 (D. Utah Jan. 19, 2024).
    If DPG and B&W Auto later persuade the court further reductions are warranted because of their financial reverses, the court will further amend the Judgment. 152 Defendants’ Rule 60(b) Motion. 153 Memorandum Decision and Order Granting Pla…
  • Sifuentes v. Capital One, No. 2:22-cv-00190 (D. Utah Oct. 17, 2023).
    For the same reasons the court rejected those arguments in the June 16 MDO, the court rejects them again because those arguments do not justify relief under Rule 60(b)(1), which “is extraordinary” and may be granted “only . . . in exceptio…
  • Gaddy v. Corp. of the President of the Church of Jesus Christ of Latter-Day Saints, The, 665 F. Supp. 3d 1263 (D. Utah 2023).published
    Co., 152 F.3d 1266, 1272 (10th Cir. 1998) (quoting Bud Brooks Trucking, Inc. v. Bill Hodges Trucking Co., 909 F.2d 1437, 1440 (10th Cir. 1990)).
  • Sifuentes v. Capital One, No. 2:22-cv-00190 (D. Utah June 16, 2023).
    Thus, the court focuses exclusively on whether Mr. Sifuentes committed an “excusable litigation mistake.”17 “Excusable litigation mistakes are not those which were the result of a deliberate and counseled decision by the complaining party.…
Show 104 more citing cases
At page 1439 Justification required for imposing sanctions8 citing casesIn any event, the district court should set forth in the record the justification for the sanction imposed.2 citing courts put it this way · 7 listed here
  • Boulter v. Noble Energy, No. 23-1118, 2024 WL 1526289 (10th Cir. Apr. 9, 2024).unpublished 2 cites
    (In any event, the district court should set forth in the record the justification for the sanction imposed.)
  • Drevaleva v. U.S. Dep't of Vets. Affairs, No. 1:21-cv-00761, 2021 WL 5083989 (D.N.M. Nov. 2, 2021).
    Bud Brooks Trucking, Inc. v. Bill Hodges Trucking Co., Inc., 909 F.2d 1437, 1439 (10th Cir. 1990); see Davis v. Miller, 571 F.3d 1058, 1062 (10th Cir. 2009) (sanctions should be directed at counsel “when the fault lies with him rather than…
  • Davis v. Miller, 571 F.3d 1058 (10th Cir. 2009).published 2 cites
    Id. at 30. [4] See also Bud Brooks Trucking, Inc. v. Bill Hodges Trucking Co., 909 F.2d 1437, 1439 (10th Cir.1990) ("Dismissal with prejudice is a drastic sanction.
  • Hardage v. James, No. 00-7019 (10th Cir. May 10, 2000).unpublished
  • No. 92-1201, 2 F.3d 1023 (10th Cir. 1993).published
  • No. 96-1047, 86 F.3d 1015 (10th Cir. 1996).published
  • S. Ute Indian Tribe v. Amoco Prod. Co., 2 F.3d 1023 (10th Cir. 1993).published
Retrieving the full opinion text from the archive…
BUD BROOKS TRUCKING, INC., an Oklahoma corporation Kenny Stevens, doing business as Stevens Trucking, Slim's Forklift and Trucking Company Gold Transit Systems, Inc., an Oklahoma corporation Sooner Trucking Service, Inc., an Oklahoma corporation Jim Rains, doing business as Rains Trucking Service Johnny Lawrence, doing business as Johnny Lawrence Company
v.
BILL HODGES TRUCKING COMPANY, INC., an Oklahoma corporation Turner Brothers Trucking Company, an Oklahoma corporation Bill Jackson Rig Company, an Oklahoma corporation Jim Marrs Trucking Co., Inc., a successor to Jim Marrs & Son Trucking Company, Inc. Garrett Brothers, Inc., an Oklahoma corporation Jernigan Brothers, Inc., an Oklahoma corporation Louis Bodnar, an individual
No. 87-1687.
Court of Appeals for the Tenth Circuit.
Jul 26, 1990.
Published opinion
909 F.2d 1437
1990 WL 103740
1990 U.S. App. LEXIS 12409
James A. Ikard of Angel, Ikard, and Nash, Oklahoma City, Okl., for plaintiffs-appellants., Wilburn L. Williamson of Dykeman, Williamson, and Williamson, Oklahoma City, Okl., for defendants-appellees, Bill Hodges Trucking Co., Inc. and Garrett Bros., Inc., Burck Bailey and Eric S. Eissenstat of Fellers, Snider, Blankenship, Bailey & Tip-pens, Oklahoma City, Okl, for defendant-appellee, Turner Bros. Trucking Co.
Anderson, Rogers, Tacha.
Cited by 128 opinions  |  Published
STEPHEN H. ANDERSON, Circuit Judge.

This appeal is taken from a district court order denying plaintiffs’ motion to vacate the court’s earlier dismissal of their action. Fed.R.Civ.P. 60(b). Initially, plaintiffs filed an untimely notice of appeal from the district court’s order and the appeal was dismissed for lack of jurisdiction. After their unsuccessful attempt to appeal, plaintiffs filed their Rule 60(b) motion in the district court. Limiting our review to the district court’s denial of 60(b) relief, and applying the appropriate standard to that denial, we conclude that the district court acted within its discretion and affirm the court’s order.[1]

BACKGROUND

In August of 1985, plaintiffs filed their original complaint seeking relief under the Sherman and Clayton Acts, claiming antitrust violations by defendants (six competing companies and their attorney). A year later, after amended pleadings had been filed and initial motions ruled upon, the district court held a scheduling conference with the parties. The court set a series of deadlines, which were subsequently extended by joint request of the parties.

According to the parameters eventually fixed by the district court, plaintiffs’ final “contentions” were due January 1, 1987, with defendants’ due seven days later. Witness and exhibit lists of both sides were due January 25, and discovery was to be completed by February 15. Several other deadlines were set, including initiation by plaintiffs’ counsel of settlement by February 1. Trial was to commence March 2.

[*1439] Plaintiffs’ contentions (incorporating by reference certain allegations in the original and amended complaints) were filed January 23, three weeks late. Neither side submitted witness or exhibit lists[1] by January 25. On January 30, the court, by letter, directed the presence of counsel and a person with settlement authority for each party to attend a settlement conference scheduled for February 11, 1987.

Defendants all attended the conference, but only one of the six plaintiffs appeared. This prompted the district court to enter an order mandating the appearance of all plaintiffs and counsel on February 27 and directing them to show cause why sanctions should not be imposed for failure to attend the February 11 conference. The court further indicated its intent to consider several pending motions to dismiss the action for failure to comply with scheduling and discovery deadlines. Following the February 27 hearing, the district court dismissed the action with prejudice for failure of plaintiffs to comply with discovery and scheduling deadlines and failure to appear at the settlement conference.

The plaintiffs’ notice of appeal from the order dismissing the action was untimely filed, resulting in the dismissal of the appeal for lack of jurisdiction. In their subsequent motion for relief under Rule 60(b), plaintiffs requested the court to consider whether sanctions other than dismissal would have been more appropriate under the circumstances. The district court summarily denied the motion and this appeal ensued.

DISCUSSION

Dismissal with prejudice is a drastic sanction. Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir.1988); In re Russell, 746 F.2d 1419 (10th Cir.1984); Hollis v. United States, 744 F.2d 1430, 1432 (10th Cir.1984). While such a sanction may be employed in the proper situation, we have held that the district court should consider sanctioning the responsible party. In re Baker, 744 F.2d 1438, 1442 (10th Cir.1984) (en banc) (impact of sanction should be lodged with counsel or client, whoever is at fault), cert. denied, 471 U.S. 1014, 105 S.Ct. 2016, 85 L.Ed.2d 299 (1985); see Meade v. Grubbs, 841 F.2d 1512, 1520 (10th Cir.1988) (dismissal usually appropriate only when lesser sanction would not serve best interests of justice).[2] The sanction of dismissal has been upheld in some instances as an appropriate alternative available to the district court where a party willfully fails to comply with discovery rules. Adams v. J. W. Jones Constr. Co., 703 F.2d 483, 484 n. 3 (10th Cir. 1983); United States v. $239,500 in United States Currency, 764 F.2d 771, 773 (11th Cir.1985). In any event, the district court should set forth in the record the justification for the sanction imposed. In re Baker, 744 F.2d at 1442; Hollis v. United States, 744 F.2d at 1432; In re Russell, 746 F.2d at 1420; Sterling Energy, Ltd. v. Friendly Nat’l Bank, 744 F.2d 1433, 1437 (10th Cir.1984).

Were this a direct appeal from the dismissal of the action, plaintiffs might have a stronger position from which to argue that dismissal was too harsh a sanction under the circumstances. But see In re Standard Metals Corp., 817 F.2d .625, 628-29 (10th Cir.1987); Founding Church of Scientology, Inc. v. Webster, 802 F.2d 1448, 1457-59 (D.C.Cir.1986), cert. denied, 484 U.S. 871, 108 S.Ct. 199, 98 L.Ed.2d 150 (1987); Gates v. United States, 752 F.2d 516, 517 (10th Cir.1985). However, the posture of this appeal requires review of a different discretionary decision by the district court, i.e., the denial of the motion under Rule 60(b).[3]

[*1440] The hurdle plaintiffs must overcome is higher because a Rule 60(b) motion is not a substitute for an appeal. Kagan v. Caterpillar Tractor Co., 795 F.2d 601, 607 (7th Cir.1986) (“Thus ‘our review of denial of Rule 60(b) relief [is] meaningfully narrower than would [be] our review on direct appeal_’”) (quoting Pryor v. U.S. Postal Serv., 769 F.2d 281, 286 (5th Cir.1985)); Morris v. Adams-Millis Corp., 758 F.2d 1352, 1358 (10th Cir.1985); Chick Kam Choo v. Exxon Corp., 699 F.2d 693, 694 (5th Cir.), cert. denied, 464 U.S. 826, 104 S.Ct. 98, 78 L.Ed.2d 103 (1983); cf. Cessna Fin. Corp. v. Bielenberg Masonry Contracting, Inc., 715 F.2d 1442, 1444 (10th Cir.1983); Brown v. McCormick, 608 F.2d 410, 413 (10th Cir.1979). Thus, this appeal does not bring up for review the underlying judgment of dismissal as a sanction for failure to comply with discovery orders. Browder v. Director, Dep’t of Corrections, 434 U.S. 257, 263 n. 7, 98 S.Ct. 556, 560 n. 7, 54 L.Ed.2d 521 (1978); United States v. 31.63 Acres of Land, 840 F.2d 760, 761 (10th Cir.1988); Morris v. Adams-Millis Corp., 758 F.2d at 1357; V.T.A., Inc. v. Aireo, Inc., 597 F.2d 220, 224 (10th Cir.1979).

Relief under Rule 60(b) is extraordinary and may only be granted in exceptional circumstances. Ackermann v. United States, 340 U.S. 193, 199, 71 S.Ct. 209, 212, 95 L.Ed. 207 (1950); Griffin v. Swim-Tech Corp., 722 F.2d 677, 680 (11th Cir.1984). Plaintiffs do not recite any exceptional circumstances warranting such relief, nor does our reading of the record disclose any. There are no claims, for instance, that plaintiffs were unable to comply with discovery deadlines or to attend the settlement conference because of compelling' circumstances beyond their control. Parties and their attorneys must be held to a reasonably high standard of diligence in observing the courts’ rules of procedure. Cessna Finance Corp. v. Bielenberg, 715 F.2d at 1444 (no abuse of discretion in denying Rule 60(b)(1) motion for relief from default judgment). Cf. Morris v. Adams-Millis Corp., 758 F.2d at 1359 (Rule 60(b)(1) will not lie to correct error of law, where.the appellant fails to demonstrate unusual circumstances warranting relief under Rule 60(b)(6)).

CONCLUSION

We conclude that the district court did not abuse its discretion in denying plaintiff’s Rule 60(b) motion. Accordingly, the district court’s order is AFFIRMED.

1

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); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.

2

However, litigants, having chosen their attorney, cannot avoid the consequences of the acts of their freely selected agent. Link v. Wabash R.R., 370 U.S. 626, 633-34, 82 S.Ct. 1386, 1390-91, 8 L.Ed.2d 734 (1962); see also National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643, 96 S.Ct. 2778, 2781, 49 L.Ed.2d 747 (1976) (most severe sanction must be available to district court not only to penalize conduct warranting sanction, but to deter others).

3

We emphasize that the Rule 60(b) motion in this case was not filed in the district court until after the time for direct appeal had expired. This court has previously addressed situations where an immediate 60(b) motion was filed, and a timely appeal of both the underlying[*1440] order and the denial of 60(b) relief was pursued. See, e.g., Hancock v. City of Oklahoma City, 857 F.2d 1394 (10th Cir.1988); Meade v. Grubbs, 841 F.2d 1512 (10th Cir.1988); D.G. Shelter Prod. v. Forest Prod. Co., 769 F.2d 644 (10th Cir.1985). Those cases are inapplicable in circumstances such as this, where plaintiffs’ 60(b) motion is merely a belated attempt to cure an untimely notice of appeal or failure to appeal.