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    Melvin M. Marin v. Colorado Board of Law Examiners, 953 F.2d 1391, 10th Cir. (1992)

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    This document is an order and judgment from the United States Court of Appeals for the Tenth Circuit regarding a case brought by Melvin M. Marin against the Colorado Board of Law Examiners. The district court had dismissed Marin's case without prejudice for failure to appear at a scheduling conference. Marin appealed this dismissal. The Tenth Circuit found that while dismissals without prejudice are appealable, Marin's appeal had been mooted because he had filed a new complaint on the same issues as indicated in his withdrawal of a motion to reconsider in the district court. As the new case was ongoing and presented the same claims, the instant appeal was dismissed as moot.

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    Melvin M. Marin v. Colorado Board of Law Examiners, 953 F.2d 1391, 10th Cir. (1992)

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    This document is an order and judgment from the United States Court of Appeals for the Tenth Circuit regarding a case brought by Melvin M. Marin against the Colorado Board of Law Examiners. The district court had dismissed Marin's case without prejudice for failure to appear at a scheduling conference. Marin appealed this dismissal. The Tenth Circuit found that while dismissals without prejudice are appealable, Marin's appeal had been mooted because he had filed a new complaint on the same issues as indicated in his withdrawal of a motion to reconsider in the district court. As the new case was ongoing and presented the same claims, the instant appeal was dismissed as moot.

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    Filed: 1992-02-03 Precedential Status: Precedential Citations: 953 F.2d 1391 Docket: 91-1177

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    This document is an order and judgment from the United States Court of Appeals for the Tenth Circuit regarding a case brought by Melvin M. Marin against the Colorado Board of Law Examiners. The district court had dismissed Marin's case without prejudice for failure to appear at a scheduling conference. Marin appealed this dismissal. The Tenth Circuit found that while dismissals without prejudice are appealable, Marin's appeal had been mooted because he had filed a new complaint on the same issues as indicated in his withdrawal of a motion to reconsider in the district court. As the new case was ongoing and presented the same claims, the instant appeal was dismissed as moot.

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    41 views2 pages

    Melvin M. Marin v. Colorado Board of Law Examiners, 953 F.2d 1391, 10th Cir. (1992)

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    Scribd Government Docs
    This document is an order and judgment from the United States Court of Appeals for the Tenth Circuit regarding a case brought by Melvin M. Marin against the Colorado Board of Law Examiners. The district court had dismissed Marin's case without prejudice for failure to appear at a scheduling conference. Marin appealed this dismissal. The Tenth Circuit found that while dismissals without prejudice are appealable, Marin's appeal had been mooted because he had filed a new complaint on the same issues as indicated in his withdrawal of a motion to reconsider in the district court. As the new case was ongoing and presented the same claims, the instant appeal was dismissed as moot.

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    of 2

    953 F.

    2d 1391
    NOTICE: Although citation of unpublished opinions remains unfavored,
    unpublished opinions may now be cited if the opinion has persuasive value on a
    material issue, and a copy is attached to the citing document or, if cited in oral
    argument, copies are furnished to the Court and all parties. See General Order of
    November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
    further order.

    Melvin M. MARIN, Plaintiff-Appellant,


    v.
    COLORADO BOARD OF LAW EXAMINERS, DefendantAppellee.
    No. 91-1177.

    United States Court of Appeals, Tenth Circuit.


    Feb. 3, 1992.

    Before LOGAN, BARRETT and EBEL, Circuit Judges.


    ORDER AND JUDGMENT*
    LOGAN, Circuit Judge.

    Plaintiff Melvin M. Marin filed an action in the United States District Court for
    the District of Colorado seeking a declaratory judgment and an injunction
    against the Colorado Board of Law Examiners. The suit alleged that the waiver
    of rights form which the Board of Law Examiners required for continuing
    processing of his application for admission to the Colorado Bar violated
    plaintiff's constitutional rights.

    The district court scheduled a discovery and scheduling conference at which the
    plaintiff did not appear, plaintiff having previously indicated that he would be
    unable to attend the conference or do anything on the case until a month or two
    later. As a consequence the court ordered the case dismissed without prejudice
    to plaintiff's commencing another action when he was ready to proceed.

    Plaintiff thereafter moved to alter the judgment of the district court, see I R. tab

    19, but later filed a notice of withdrawal of that motion, stating as a basis that
    "the cheapest route for the court and all parties appears to be proceeding on the
    new complaint which plaintiff sent forward some days ago." Id. tab 20 at 2.
    Plaintiff then filed a timely notice of appeal from the district court's judgment
    of dismissal.

    Contrary to the Board of Law Examiners' argument, a dismissal without


    prejudice of a legal action for want of prosecution is appealable. See Petty v.
    Manpower, Inc., 591 F.2d 615, 617 (10th Cir.1979); Coffey v. Whirlpool Corp.,
    591 F.2d 618, 620 (10th Cir.1979).

    Nevertheless, we hold that the appeal has been mooted because plaintiff indeed
    did start over again, filing a new complaint, as indicated in his notice of
    withdrawal of his motion to alter the district court's judgment. The district court
    order of May 6, 1991, referenced the earlier dismissal as not precluding the
    plaintiff's filing a new action, and it states as follows:

    He has now filed such an action. Pursuant to this court's rules, that action has
    been referred to me to determine whether it is related to this case. See
    D.Colo.R. 200 A.2. The new case asserts claims identical to those asserted in
    this case--plus a few new ones. I have now entered scheduling orders and other
    orders in that case. Assuming that plaintiff follows those orders, the relief
    requested in that case would grant him everything he seeks in this case.

    Id. tab 23 at 1-2. We have been informed that that second action, Civ. Action
    No. 91-N-766, is ongoing, and indeed an appeal from actions taken by the
    district court therein has been docketed in this court as appeal No. 91-1338.
    Because the new action quite evidently presents the same claims as in the
    appeal before us, and there appears to be no statute of limitations or other
    problem that would preclude prosecution of that action, the instant appeal is
    DISMISSED as moot.

    This order and judgment has no precedential value and shall not be cited, or
    used by any court within the Tenth Circuit, except for purposes of establishing
    the doctrines of the law of the case, res judicata, or collateral estoppel. 10th
    Cir.R. 36.3

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