35 F.3d 570 (9th Cir. 1994), 93-55210, Aref v. Dougherty

Docket Nº:93-55210.
Citation:35 F.3d 570
Party Name:Dr. Khairy AREF, Plaintiff-Appellant, v. Seth DOUGHERTY; William Diekman; Livio Davanzo; Steven Wong; et al., Defendants-Appellees.
Case Date:September 13, 1994
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 570

35 F.3d 570 (9th Cir. 1994)

Dr. Khairy AREF, Plaintiff-Appellant,


Seth DOUGHERTY; William Diekman; Livio Davanzo; Steven Wong; et al., Defendants-Appellees.

No. 93-55210.

United States Court of Appeals, Ninth Circuit

September 13, 1994

Submitted September 7, 1994. [*]

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)

Appeal from the United States District Court for the Central District of California, No. CV 89-7194; J. Spencer Letts, District Judge, Presiding.



Before: HALL, WIGGINS, and FERNANDEZ, Circuit Judges.


Khairy Aref appeals pro se the district court's dismissal of his action pursuant to the Fed.R.Civ.P. 11 and 41(b). We review the district court's dismissal for an abuse of discretion. Malone v. United States Postal Serv., 833 F.2d 128, 130 (9th Cir.1987), cert. denied, 109 S.Ct. 59 (1988). We have jurisdiction under 28 U.S.C. § 1291, and affirm.

This case was originally assigned to District Court Judge Letts in December 1990. On January 21, 1992, Aref's attorney moved to withdraw as counsel for Aref. Another attorney was appointed to represent Aref, and at that time, the court considered, but did not impose sanctions against Aref for possible perjury, practicing without a license, fraud, misrepresentation and abuse of process. Aref agreed not to file his own papers, and to appear only with an attorney before the district court. Aref nevertheless filed a pro se motion for disqualification of Judge Letts in disregard of the court's order. Thereafter, Aref failed to appear at two hearings on an order to show cause why Aref should not be sanctioned for engaging in frivolous and abusive litigation. The district court then dismissed the action without prejudice.

"[W]e will overturn a dismissal sanction only if we have a definite and firm conviction that it was clearly outside the acceptable range of sanctions." Id. The issue is "not whether this court would have, as an original matter, imposed the sanctions chosen by the trial court, but whether the trial court exceeded the limits of its discretion." Halaco Engineering Co. v. Costle, 843 F.2d 376, 379 (9th Cir.1988). Five factors must be assessed before imposing the sanction of...

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