Appellate Case: 25-6205 Document: 27-1 Date Filed: 07/01/2026 Page: 1 FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS July 1, 2026 FOR THE TENTH CIRCUIT _________________________________ Christopher M. Wolpert Clerk of Court TRISTIAN D. BOLONGIA,
Plaintiff - Appellant,
v. No. 25-6205 (D.C. No. 5:25-CV-00635-JD) TARGET CORPORATION; (W.D. Okla.) SANTINKA ANITA TAYLOR; JILL KATHERINE VAUGHN; MARY KATHLEEN COUGHLIN, f/k/a Flesch; HARIS MANGIC; LUKE ANDREW WIBLE; SAMANTHA GENE COOK, f/k/a Pequin,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT * _________________________________
Before PHILLIPS, KELLY, and FEDERICO, Circuit Judges. _________________________________
*After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument.
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1.
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After Tristian Bolongia filed his second amended complaint, the
district court observed: 1) he had not filed proof of service of the first
amended complaint and summons as to one of the defendants in accordance
with Federal Rule of Procedure 4; and 2) he had not certified service of the
second amended complaint in accordance with Rule 5. Fed. R. Civ. P. 4(l),
5(d). The district court therefore ordered Bolongia to show some proof of
service within three weeks, on pain of dismissal without prejudice. This he
failed to do. The district court accordingly dismissed Bolongia’s “action
without prejudice.” R. at 370.
Bolongia now appeals, arguing that dismissal without prejudice was
an inappropriate sanction for what he views as relatively minor
infractions. 1 But applying a highly deferential standard of review, we find
no abuse of discretion, so exercising jurisdiction under 28 U.S.C. § 1291, 2
we affirm.
1 As in the district court, Bolongia proceeds pro se in this court. We
construe his filings liberally, but we cannot act as his advocate. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). 2 “A dismissal of the complaint is ordinarily a non-final, nonappealable order (since amendment would generally be available)[,] while a dismissal of the entire action is ordinarily final.” Mobley v. McCormick, 40 F.3d 337, 339 (10th Cir. 1994) (citation omitted). Here, the district court expressly dismissed the action and entered judgment. Under this court’s precedent, we have jurisdiction over the appeal.
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I
We review the facts and procedural history only as relevant to this
appeal. This case began on June 11, 2025, when Bolongia first filed a pro se
employment discrimination complaint against Target and various Target
employees. After the district court ordered Bolongia to refile his complaint
using the form provided by the local rules, Bolongia filed his first amended
complaint. Then, on July 29, Bolongia filed the second amended and
currently operative complaint. On September 18, Bolongia filed proof of
service of the complaint and summons on every defendant except one – Luke
Wible.
Meanwhile, the properly served defendants moved to dismiss under
Rule 12(b)(4) and Rule 12(b)(5) for insufficient process and service of
process. The district court denied the motion on November 14 but observed
two problems. First, the district court noted that Bolongia had not filed
proof that Luke Wible had been properly served, which created a Rule 4
problem. Second, the district court noted that Bolongia had not certified
service of the second amended complaint, which created a Rule 5 problem.
The district court therefore ordered Bolongia “to show proof of compliance”
with Rule 5 and “show cause. . .why this action should not be dismissed as
to Wilbe [sic] for failure to make service of process” by December 5, 2025. R.
at 364. The district court explicitly warned that failure to comply with this
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order would result in dismissal. December 5 came and went with no activity
on the docket, and on December 9, the district court accordingly dismissed
the action without prejudice to refiling.
On December 12, Bolongia filed a “Show Cause Explanation.” R. at
375–78, 380. Bolongia’s filing explained that his health had unexpectedly
deteriorated during the week of December 5, but he elected not to
immediately inform the court of his medical emergency because he hoped
that his health would improve sufficiently to allow compliance.
The district court did not accept this explanation. Although the
district court construed the filing as a motion under Rules 59 and 60, it
denied relief under both rules. First, the district court reasoned that Rule
59(e) relief was inappropriate because Bolongia cited no change in the law,
no error, and no new evidence. Second, the district court declined to reopen
its judgment under Rule 60(b) because Bolongia had not demonstrated
excusable neglect:
[W]hile the Court sympathizes with Bolongia’s medical conditions, the premise of that ground for relief – his inability to appear in person – belies the reality that Bolongia could have simply dropped his filings in the mail to arrive before or by the December 5, 2025, deadline. He chose not to use the mail to respond or to seek an extension, and nothing in his Motion provides justification for this other than the conclusory statement that his symptoms “prevented [him] from meeting the deadline.” In fact, Bolongia admits he chose not to act ahead of the deadline, instead betting that his condition would improve.
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R. at 384–85 (quoting Bolongia’s filing, second alteration in original, docket
citation omitted).
This timely appeal followed. Our review encompasses both the district
court’s order of dismissal under Rule 41(b) and order denying post-judgment
relief, so we will take each in turn.
II
The Federal Rules of Civil Procedure give district courts “broad
discretion to manage their dockets” within reasonable limits. Proctor &
Gamble Co. v. Kraft Foods Global, Inc., 549 F.3d 842, 849 (10th Cir. 2008).
In particular, they authorize the district court to dismiss an action “[i]f the
plaintiff fails to prosecute or to comply with these rules or a court order.”
Fed. R. Civ. P. 41(b); see also Davis v. Miller, 571 F.3d 1058, 1060 (10th Cir.
2009) (district court may exercise Rule 41(b) discretion on its own motion).
We have repeatedly recognized that this rule secures to the district court a
wide range of permissible choices for “the expeditious and sound
management of the preparation of cases for trial.” Drevaleva v. United
States Department of Veteran Affairs, 2022 WL 2662081 at *4 (10th Cir.
July 11, 2022) (quoting Lee v. Max Intern., LLC, 638 F.3d 1318, 1320 (10th
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Cir. 2011)). 3 Therefore, “[w]e review for an abuse of discretion the district
court’s decision to impose the sanction of dismissal for failure to follow court
orders and rules.” Gripe v. City of Enid, 312 F.3d 1184, 1188 (10th Cir.
2002). The district court abuses its discretion when it relies on an error of
law, a clear error of fact, or otherwise exceeds the permissible range of
choices. Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135,
1143 (10th Cir. 2007).
A
This court has repeatedly held that a dismissal without prejudice
under Rule 41(b) is almost never an abuse of discretion. In Nasious v. Two
Unknown B.I.C.E. Agents, for example, we said that “[e]mploying 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.” 492 F.3d 1158, 1162 (10th
Cir. 2007). We have since applied the rule in Nasious more broadly to
dismissals without prejudice even outside the context of Rule 8 violations.
See, e.g., Sullivan v. Graham, 2025 WL 1983231 at *2 (10th Cir. July 17,
3 We cite unpublished decisions for their persuasive value only and do
not treat them as binding precedent. 10th Cir. R. 32.1(A).
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2025) (unpublished). So, while this court’s cases leave open the possibility
that some dismissals without prejudice may be an abuse of discretion, the
appellant faces a heavy burden to demonstrate that a decision allowing him
to refile or amend was nonetheless reversible error.
Bolongia does not clear that burden here. Bolongia does not dispute
the district court’s finding of fact that he violated a court order – nor could
he, on this record. He instead appears to challenge the district court’s
conclusion that dismissal without prejudice was merited for violations of
Rule 4 and 5. We will address Bolongia’s arguments as to each rule in turn.
Bolongia first argues that “Rule 4(m) embodies flexibility,” and the
district court’s failure to consider a permissive extension under this flexible
approach was an abuse of discretion.
But Bolongia’s failure to challenge the district court’s finding that
Bolongia violated an order of the court renders his Rule 4 argument
irrelevant. Rule 41 permits the district court to impose dismissal for failure
“to comply with these rules or a court order.” Fed. R. Civ. P. 41(b) (emphasis
added). The rule is phrased in the disjunctive, so Bolongia needed to show
that he complied with both the Federal Rules of Civil Procedure and all
applicable court orders. This he did not do.
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Even setting aside Bolongia’s violation of a court order, however, his
Rule 4 argument would not succeed. He correctly observes that even in the
absence of good cause for extending the time for service, the district court
“must still consider whether a permissive extension of time may be
warranted.” Espinoza v. United States, 52 F.3d 838, 841 (10th Cir. 1995).
“Whatever other problems this argument may face, and without endorsing
its logic, we are confident it must fail for at least this reason: It was never
made to the district court.” Hand v. Walnut Valley Sailing Club, 475 F.
App’x 277, 279 (10th Cir. 2012) (unpublished). We generally will not
consider an argument raised for the first time on appeal, and even when we
do, the appellant must usually argue and meet the rigorous plain error
standard to merit reversal. Lyons v. Jefferson Bank & Trust, 994 F.2d 716,
721 (10th Cir. 1993); Richison v. Ernest Group, Inc., 634 F.3d 1123, 1130–
31 (10th Cir. 2011). Bolongia nowhere even mentions the plain error
standard of review and his argument is consequently waived.
Bolongia also asserts, in a rather conclusory fashion, that Rule 5 is
purely “ministerial,” and therefore, “[t]reating that paperwork as case-
dispositive elevates form over substance.” Op. Br. at 19.
The argument, however austere, is not without some force. Unlike
Rule 4, which implicates the district court’s jurisdiction over a person, the
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requirement under Rule 5 that litigants file a certificate of service is
intended to promote the smooth administration of justice. See generally Fed.
R. Civ. P. 5(d) advisory committee’s notes to 1991 amendment. It should be
applied with this purpose in mind, rather than as a strict rule of life or
death for a case. Nonetheless, district courts across the country have
reminded pro se litigants like Bolongia that compliance with Rule 5 is not
optional. Adam N. Steinman in 4B Wright & Miller’s Federal Practice &
Procedure § 1150 n.8 (4th ed. 2008, April 2026 update).
But again, Bolongia conflates the district court’s conclusion that he
violated Rule 5 with its conclusion that he violated the court’s order to
comply with Rule 5. That distinction is significant, for even if we accepted
that a Rule 5 violation alone could not support a Rule 41(b) sanction,
compliance with the orders of a federal court is different in kind. All
litigants, pro se or otherwise, must attend scrupulously to the word of the
court. Lundahl v. Halabi, 600 F. App’x 596, 605 (10th Cir. 2014)
(unpublished); Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994)
(“[A]n appellant’s pro se status does not excuse the obligation of any litigant
to comply with the fundamental requirements of the Federal Rules of Civil
and Appellate Procedure.”). And balancing the district court’s relatively
strong interest in ensuring compliance with court orders against the
sanction imposed here, we find no abuse of discretion. The district court
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explicitly warned Bolongia about the impending risk of dismissal; gave him
an easy opportunity to cure; and preserved for Bolongia the right to refile
his action.
B
Bolongia also argues that the dismissal of his action was functionally
with prejudice, so we should impose more exacting review of the district
court’s order. This argument is insufficiently developed on appeal, so we
will not consider it.
Although this court secures to the district court broad discretion to
dismiss without prejudice, dismissal with prejudice is a different story. In
the latter context, our cases recognize that dismissal with prejudice
“represents an extreme sanction appropriate only in cases of willful
misconduct.” Ehrenhaus v. Reynolds, 965 F.2d 916, 920 (10th Cir. 1992).
“Because dismissal with prejudice ‘defeats altogether a litigant’s right to
access to the courts,’ []it should be used as ‘a weapon of last, rather than
first, resort.’” Meade v. Grubbs, 841 F.2d 1512, 1520 n.6 (10th Cir. 1988)
(citations omitted, first quoting Loya v. Desert Sands Unified School
District, 721 F.2d 279, 280 (9th Cir. 1983), and then quoting Maggette v.
Dalsheim, 709 F.2d 800, 803 (2d Cir. 1983)). When the district court
dismisses with prejudice as a Rule 41(b) sanction, we consider a non-
exhaustive list of factors for assessing whether an abuse of discretion has
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occurred, including: prejudice to the other parties, interference with judicial
process, the sanctioned party’s culpability, any advance warning, and the
efficacy of lesser sanctions. Ehrenhaus, 965 F.2d at 920–21.
Seeking the benefit of more exacting Ehrenhaus review, Bolongia
gestures to the possibility that the district court’s dismissal order was
actually with prejudice. “This court has recognized that a dismissal without
prejudice can have the practical effect of a dismissal with prejudice if the
statute of limitations has expired.” AdvantEdge Bus. Grp. v. Thomas E.
Mestmaker & Assocs., Inc., 552 F.3d 1233, 1236 (10th Cir. 2009) (citing
Gocolay v. N.M. Fed. Sav. & Loan Ass’n, 968 F.2d 1017, 1021 (10th Cir.
1992)). “But [Bolongia] cannot demonstrate this effect because [he] has
failed to sufficiently address on appeal the possible running of a statute of
limitations; indeed, [he] has failed even to identify the applicable limitation
periods. Consequently, [Bolongia] has waived this argument.” Id.
III
Bolongia also appeals the district court’s denial of relief from the
judgment under Rule 60(b)(1). “A district court’s decision to grant or deny
a Rule 60(b) motion is reviewed for an abuse of discretion.” Yapp v. Excel
Corp., 186 F.3d 1222, 1230 (10th Cir. 1999). “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
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circumstances.’” Cashner v. Freedom Stores, Inc., 98 F.3d 572, 576 (10th
Cir. 1996) (alteration in original, quoting Bud Brooks Trucking, Inc. v. Bill
Hodges Trucking Co., 909 F.2d 1437, 1440 (10th Cir. 1990)).
Bolongia argues that the district court misapplied the Rule 60(b)(1)
framework the Supreme Court set forth in Pioneer Inv. Services Co. v.
Brunswick Associates Ltd. Partnership. 507 U.S. 380, 396 (1993). Bolongia
concedes, as he must, that the district court did consider all the Pioneer
factors. Bolongia merely disagrees with the great weight that the district
court assigned to one factor – reason for or fault in the delay. But on abuse
of discretion review, we cannot fault the district court for weighing this
factor more heavily than others, particularly when this court has instructed
district courts to give this factor special attention. United States v. Torres,
372 F.3d 1159, 1163 (10th Cir. 2004) (reversing district court’s finding of
excusable neglect even though three factors favored the Rule 60 movant
because fault factor did not).
Moreover, this court has said repeatedly that “the kinds of mistakes
by a party that may be raised by a Rule 60(b)(1) motion are litigation
mistakes that a party could not have protected against.” Cashner, 98 F.3d
at 577. “Thus, a party who simply misunderstands or fails to predict the
legal consequences of his deliberate acts cannot later, once the lesson is
learned, turn back the clock to undo those mistakes.” Yapp, 186 F.3d at
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1231. On appeal, Bolongia gives us no reason to disavow the district court’s
inference that Bolongia was aware of the impending deadline and was
healthy enough to communicate with the court, but simply and inexplicably
failed to do so. His litigation conduct therefore falls neatly into the category
of cases our precedent excludes from the coverage of Rule 60(b)(1).
IV
Bolongia emphasizes that as a pro se litigant, he was entitled to the
benefit of liberality in the district court. Irrespective of his pro se status,
however, he shoulders the same burden every party in federal court must
bear – the duty to comply with the Federal Rules of Civil Procedure and the
orders of the court. Ogden, 32 F.3d at 455. And while there are limits to a
district court’s power to enforce this duty, Rule 41(b) contemplates a wide
spectrum of approaches ranging from softies to sticklers. So even if we
might have taken a more lenient approach than the district court did here,
we have no authority to reverse. The judgment is therefore AFFIRMED.
Bolongia’s pending motion to proceed in forma pauperis is granted.
Entered for the Court
Richard E.N. Federico Circuit Judge