10th Circuit Reverses Dismissal of Case With Prejudice Because District Court Did Not Consider the Ehrenhaus Factors

Per Nasious v. Two Unknown B.I.C.E. Agents, --- F.3d ----, 2007 WL 1895877 (10th Cir.(Colo.) Jul 03, 2007) (NO. 07-1105):
Employing Rule 41(b) to dismiss a case without prejudice for failure to comply with Rule 8 of course allows the plaintiff another go at trimming the verbiage; accordingly, a district court may, without abusing its discretion, enter such an order without attention to any particular procedures. See Petty, 591 F.2d at 617; accord Ciralsky v. C.I.A., 355 F.3d 661, 669-71 (D.C.Cir.2004). Dismissing a case with prejudice, however, is a significantly harsher remedy-the death penalty of pleading punishments-and we have held that, for a district court to exercise soundly its discretion in imposing such a result, it must first consider certain criteria. See Olsen, 333 F.3d at 1204; Gripe v. City of Enid, Okla., 312 F.3d 1184, 1188 (10th Cir.2002); see also Ciralsky, 355 F.3d at 669-70 (discussing the "harsh sanction" of dismissal with prejudice as opposed to dismissal without prejudice). Specifically, "[t]hese criteria include '(1) the degree of actual prejudice to the defendant; (2) the amount of interference with the judicial process; (3) the culpability of the litigant; (4) whether the court warned the party in advance that dismissal of the action would be a likely sanction for noncompliance; and (5) the efficacy of lesser sanctions.' " Olsen, 333 F.3d at 1204 (quoting Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir.1994)); see also Gripe, 312 F.3d at 1188 (quoting Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir.1992) (same) (hereinafter, the " Ehrenhaus factors").

Having reviewed the record, we find no indication that the district court considered the Ehrenhaus factors before dismissing Mr. Nasious's case. Though we can of course affirm a district court's dismissal based on our own independent assessment of its legal propriety, we find ourselves unable to do so in this case.