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2d 644
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 Circuit R.
10(e). The cause is therefore submitted without oral argument.
The facts of this case are simple and undisputed. The plaintiff ("Shelter")
brought an action alleging breach of contract and breach of warranty against the
defendant ("Forest") on October 6, 1983. On November 30, 1983, Forest filed
its answer and discovery went forward. On April 9, 1984, Shelter filed its
motion for summary judgment, copies of which had been mailed to Forest on
April 6, 1984. Pursuant to local rule 9(j)(2), Forest's response was due April 19,
1984. On April 25, 1984, six days after Forest's response was due, counsel for
4 is clear from the record in this case that the interference with sound management
It
of the court was the fault of the lawyers on whom the sanction was imposed--not
their clients. It is the trial court's duty, within the spirit of its total powers, including
Rule 16, to impose sanctions and compensating awards of expenses, including
attorney's fees, in a manner designed to solve the management problem. If the fault
lies with the attorneys, that is where the impact of action should be lodged.
5
In re sanction of Baker, 744 F.2d 1438, 1442 (10th Cir.1984) (en banc). See
Hollis v. United States, 744 F.2d 1430, 1433 (10th Cir.1984) (dismissal too
severe as sanction; monetary sanction against attorneys should be considered).
We are satisfied that sanctions are appropriate in this case. However, since the
court did not have the benefit of our opinions in the two cited cases when the
decision was made in this case, we have determined to remand so that the court
can consider its action in light of those cases.