UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

“ Thus, the district court unquestionably considered the appropriate factors in deciding to dismiss plaintiff’s case, and its decision was not an abuse of discretion.
Plaintiff argues against the harshness of penalizing him for his attorney's conduct. But there is nothing novel here. Those who act through agents are customarily bound by their agents' mistakes. It is no different when the agent is an attorney. When an attorney drafting a contract omits an important clause, the client who signs the contract is bound. ”

“ In short, I believe the majority has derailed our qualified-immunity analysis from its previously sensible course, and rerouted it away from Supreme Court and Tenth Circuit precedent. Its quick knockout punch to qualified immunity absent charging, slashing, and stabbing precludes officers from firing shots even when a knife-wielding man gets within, or extremely close to, stabbing range so long as he gets there by walking (not charging) and has positioned his knife for a quick thrust (without the fanfare of menacingly waving it before striking) . ”

“ Finally, we agree with the district court that Document Request 6, seeking from Walgreen "all documents . . . that refer to, mention or relate in any way to Plaintiff, Whitlock, or the litigation or the allegations, facts and circumstances concerning the litigation,” is overly broad. Under our rules, parties to civil litigation are given broad discovery privileges. But with those privileges come certain modest obligations, one of which is the duty to state discovery requests with "reasonable particularity." ”

“ As in other cases in which courts have concluded equitable subrogation principles have been statutorily abrogated, the Kansas statute’s explicit provisions limiting SRS’ recovery in certain circumstances and the statute’s language emphasizing full reimbursement for medical assistance payments made by SRS are indications that the legislature did not intend to reduce or eliminate SRS’ recovery when the injured party has not been fully compensated by the injured party’s settlement with the tortfeasor. ”

“ Hook does not directly challenge that ruling but takes issue with the court’s statement (made in deciding that a judicial exception to the TAIA did not apply) that "the harm of which Plaintiffs complain—the loss of income – appears to be self-inflicted as it results from Plaintiffs' failure to pay their tax liabilities, liabilities which they have repeatedly challenged and lost and for which they have not shown have been overpaid." ”

“ For Officer Pitzer to avoid liability, the district court seems to require that the officers have “attempt [ed] to resolve the situation verbally (as for example by calling into the residence directing the occupants to come outside) . . . ." Appellant’s App. at 211. This runs counter to the rule that " [t] he 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." ”

“ The general rule of Frow is described as follows: "when one of several defendants who is alleged to be jointly liable defaults, judgment should not be entered against him until the matter has been adjudicated with regard to all defendants, or all defendants have defaulted." ”

“ When a trial attorney is poorly prepared to cross-examine an expert witness, the client suffers the consequences. (It should be noted, however, that the mistreated client is not totally without a remedy. There may be a meritorious malpractice claim against the attorney.)
Virtually the same issue came before the Supreme Court in Link v. Wabash R.R. Co., 370 U.S. 626 (1962) . The Court upheld the district court's inherent power to dismiss an action with prejudice when the plaintiff’s attorney, who had a history of dilatory conduct, missed a pretrial conference without an adequate excuse. ”

“ There is no provision for application of general common law or equitable principles, which require full recovery as a prerequisite to subrogation."
Kansas courts have not yet interpreted the language of § 39-719a to determine whether SRS' statutorily created right of subrogation is subject to traditional equitable subrogation principles. Copeland therefore relies on cases from other states in arguing that the statute incorporates unexpressed equitable principles because it creates only a subrogation right and does not provide for a lien. ”

“ At an April 19 meeting, attended by the three defendants and others, in Bray's office, Goeltz displayed the seizure notices and said that he had received them "out of the blue." The notices bore the facsimile signature of "Lloyd Fries-Revenue Officer." Goeltz told the group that the notices should be discreetly placed where IRS agents would normally place them; that if anyone was caught he should state that he was replacing what apparently had fallen off; and that a person should not have more than one notice in his possession at one time. ”

“ Walgreen's discovery responses included a general objection that all of Ms. Touhy's document requests were overly broad, as well as a specific objection that the personnel file request was not reasonably calculated to lead to the discovery of admissible evidence. The district court agreed with Walgreen, and we cannot gainsay its conclusion: personnel files often contain sensitive personal information, just as pharmacy files do, and it is not unreasonable to be cautious about ordering their entire contents disclosed willy-nilly. ”

“ Romero argue that the County of Santa Fe is not entitled to immunity as a municipal corporation, but the district court never made such a ruling and, once again, appellants fail to explain how this argument addresses the district court’s grant of judicial and quasi-judicial immunity to Judge Miera, Deputies Webb and Nissen, and Officer Garcia. ”

“ The Fourth Amendment permits an officer to use deadly force only if there is “probable cause to believe that there [is] a threat of serious physical harm to [the officer] or to others." Estate of Larsen, 511 F.3d at 1260 (internal quotation marks omitted) . "A reasonable officer need not await the glint of steel before taking self-protective action; by then, it is often too late to take safety precautions." Id. (ellipsis and internal quotation marks omitted) . The four factors noted by the district court are quite significant. ”

“ When the fact finder determines a plaintiff is contributorily negligent, the statute provides that the total award of damages to the plaintiff shall be reduced "in proportion to the amount of negligence attributed" to the plaintiff. Id. § 60-258a (a) ; cf. Mick v. Mani, 766 P.2d 147, 150 (Kan. 1988) (discussing purposes of comparative negligence statute) .
Section 60-258a thus speaks in terms of the jury or, in the event of a bench trial, the trial court making determinations as to the plaintiff’s total damages and comparative negligence following a trial. ”

“ Before imposing dismissal as a sanction, a district court should ordinarily evaluate the following factors on the record: " (1) the degree of actual prejudice to the [other party] ; (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." Id. at 921 (internal quotation marks and citations omitted) (dismissing case as sanction for discovery violation) . ”

“ Because Ms. Hook does not explain how the amended complaint accounts for interest and penalties (and it is not obvious from the amended complaint, which lists only the original tax liabilities as determined by the Tax Court) , we reject the notion that there was a material jurisdictional-fact issue in dispute with regard to the refund claim. Further, the fact that plaintiffs failed to show that the tax liabilities were paid forecloses Ms. Hook’s challenge to the district court dismissal of the claim for release of levies and return of levied property. ”

“ Defendants say that their acts were for the promotion of their political and philosophical views on taxation and, hence, were within the free speech protection of the First Amendment. It is difficult to relate the defendants' possession of simulated seizure warnings to the communication of ideas. Defendants' conduct was of the dirty-trick variety and was for the purpose of enraging its victims and annoying IRS.
If this non-speech activity had any idea-communication overtones, the First Amendment is no protection. The constitutional power to lay and collect taxes is broad and sweeping. ”

“ This ill-conceived approach ignores how quickly a knife-wielding man can thrust a knife and kill or grievously wound an officer or a bystander. It also fails to recognize the danger to the officers and Tenorio's family had Tenorio gotten close enough to wrestle Officer Pitzer for his gun. Guns can fire in melees—accidentally or otherwise. The majority's let's-hope-nothing-bad-happens approach leaves officers at grave risk, one we have not previously required them to take. ”

“ In contrast to a fact finder’s total damage determination following a trial, no possibility exists that the injured party’s recovery in a settlement can be further reduced by a determination of that party’s negligence. ”

“ Manual for Complex Litigation § 11.443, at 75 ("In overseeing document production, the court should . . . prevent indiscriminate, overly broad, or unduly burdensome demands . . . such as those for 'all documents relating or referring to' a . . . claim . . . .") . [7]
III
Turning to Ms. Touhy's appeal of the district court's entry of summary judgment, the parties agree that all of Ms. Touhy's claims against Walgreen hinge on establishing that Ms. Whitlock used her position as a Walgreen employee to access and then disclose Ms. Touhy's health information. ”

“ Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains. ”

“ At the hearing to approve the settlement and apportion the proceeds, Copeland’s mother testified that Copeland’s total damages exceeded $6 million and testified that the total damage figure had been derived in part from a report prepared by an individual “with expertise in rehabilitation.” Toyota’s attorney objected to this testimony except insofar as the evidence of damages was offered solely to assist the district court in determining whether the settlement was just and reasonable. ”

“ Plaintiff Roger D. Gripe appeals the district court’s order dismissing his complaint as a sanction for his lawyer’s repeated violations of court orders and rules. The district court denied plaintiff’s motion for relief from judgment. Because the statute of limitations on his claims has expired, he cannot refile them.Plaintiff’s principal argument is that he should not be penalized for his lawyer's shortcomings. We affirm. ”

“ Even so, our circuit uses a "sliding scale" system in which "the more obviously egregious the conduct in light of prevailing constitutional principles, the less specificity is required from prior case law to clearly establish the violation." ”

“ C. Attorney Fees Assessed to SRS’ Share of Settlement Proceeds Copeland finally argues that under § 39-719a (b) , SRS should have to pay attorney fees in the amount of 40% rather than 33.33% of SRS' medical assistance recovery because a trial was convened. Kan. Stat. Ann. § 39-719a (b) provides that the court shall apportion attorney fees between SRS and the medical assistance recipient, but that SRS’ share of attorney fees may not exceed one-third of its medical assistance recovery "for cases settled prior to trial," or two-fifths of its medical assistance recovery "when a trial is convened." ”

“ Although the dismissal in Link was categorized as being for "failure to prosecute," the substance of the district court's ruling was essentially the same as that of the district court in this case. Justice Harlan wrote:
There is certainly no merit to the contention that dismissal of petitioner's claim because of his counsel's unexcused conduct imposes an unjust penalty on the client. ”

“ Although I certainly agree with the majority that these two facts were important ones considered in Zuchel II, I disagree that they rendered all other facts and factors meaningless. In assessing danger to self and others, a reasonable officer and a reviewing court must account for far more than what's highlighted in the single sentence quoted from Walker. To determine if conduct is objectively reasonable, we consider all circumstances, not just two circumstances. See Estate of Larsen ex rel. ”

“ The district court correctly identified the Estate of Larsen factors as useful in determining whether Officer Pitzer was entitled to qualified immunity. Acknowledging that the four Larsen factors were "nonexclusive," the district court acknowledged that the factors seek to measure the danger presented by a knife-wielding person who is confronting officers. The district court considered the second factor as bearing on Tenorio's ability to harm others, and the other three factors as bearing on his intention to do so. ”

“ Invoking the district court’s diversity jurisdiction, Copeland sued and then settled with Toyota Motor Sales, U.S.A., Inc. and Toyota Motor Corporation (collectively “Toyota”) . Thereafter, the United States District Court for the District of Kansas ordered that essentially all the net settlement proceeds be paid to the Kansas Department of Social and Rehabilitation Services ("SRS") pursuant to Kan. Stat. Ann. § 39-719a as reimbursement for the funds it dispersed for Copeland’s medical treatment.Copeland appeals the district court’s apportionment of the settlement proceeds. ”

“ B. The Majority’s Analysis As I read the majority opinion, it refuses qualified immunity to any law-enforcement officer who shoots a knife-wielding suspect unless that person "charges" the officer and aggressively motions toward the officer with the knife. ”

“ But they are only aids in making the ultimate determination, which is "whether, from the perspective of a reasonable officer on the scene, the totality of the circumstances justified the use of force." Id. The belief need not be correct—in retrospect the force may seem unnecessary—as long as it is reasonable. See id.
C.⁠Application to Officer Pitzer One could argue that Pitzer appropriately used lethal force. The officers were responding to an emergency call for police assistance to protect against danger from a man who had been violent in the past and was waving a knife around in his home. ”

“ As its sole case supporting Tenorio’s alternate theory that " [Officer Pitzer] and the other officers recklessly and unreasonably created a situation giving rise to Defendant's resort to deadly force," the district court cited to Sevier, 60 F.3d 701 n.10. In Sevier, a father called police for assistance after seeing his son—despondent about troubles with his girlfriend—"sitting on the edge of his bed with a knife in his hand resting on his lap." ”

“ Tenorio walked forward into the living room at an "average" speed. Officer Pitzer saw the knife and yelled, "Sir, put the knife down! Put the knife down, please! Put the knife down! Put the knife down!" After Tenorio continued about two-and-a half-steps into the living room, Officer Pitzer fired his gun. At the same time, Officer Moore fired his Taser, also striking Tenorio. The shooting occurred less than four minutes after the officers arrived. ”