Dahl v. City of Huntington Beach

• Decision Date: 28 May 1996
• Docket Number: 94-55972,Nos. 94-55971,s. 94-55971
• Citation: 84 F.3d 363
• Parties: , 96 Cal. Daily Op. Serv. 3747, 96 Daily Journal D.A.R. 6121 James Christopher DAHL, Plaintiff-Appellant, and Ronald L. Shugart, Plaintiff, v. CITY OF HUNTINGTON BEACH; Ron Lowenberg, Chief of Police; Charles Conlosh, Officer individually and as an Officer of the Huntington Beach Police Department; John Cottriel, Officer individually and as an Officer of the Huntington Beach Police Department; E. Krause, individually and as an Officer of the Huntington Beach Police Department; Officer Rand, individually and as an Officer of the Huntington Beach Police Department, Defendants-Appellees. James Christopher DAHL, Plaintiff, and Ronald L. Shugart, Plaintiff-Appellant, v. CITY OF HUNTINGTON BEACH; Ron Lowenberg, Chief of Police; Charles Conlosh, Officer individually and as an officer of the Huntington Beach Police Department; John Cottriel, officer individually and as an Officer of the Huntington Beach Police Department; E. Krause, individually and as an Officer of the Huntington Beach Police Department; Officer Rand, individually and as an Officer of the Huntington Beach Police Department, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 363

84 F.3d 363

34 Fed.R.Serv.3d 1585, 96 Cal. Daily Op. Serv. 3747,

96 Daily Journal D.A.R. 6121

James Christopher DAHL, Plaintiff-Appellant, and Ronald L. Shugart, Plaintiff, v. CITY OF HUNTINGTON BEACH; Ron Lowenberg, Chief of Police;

Charles Conlosh, Officer individually and as an Officer of

the Huntington Beach Police Department; John Cottriel,

Officer individually and as an Officer of the Huntington

Beach Police Department; E. Krause, individually and as an

Officer of the Huntington Beach Police Department; Officer

Rand, individually and as an Officer of the Huntington Beach

Police Department, Defendants-Appellees.

James Christopher DAHL, Plaintiff, and Ronald L. Shugart, Plaintiff-Appellant, v. CITY OF HUNTINGTON BEACH; Ron Lowenberg, Chief of Police;

Charles Conlosh, Officer individually and as an officer of

the Huntington Beach Police Department; John Cottriel,

officer individually and as an Officer of the Huntington

Beach Police Department; E. Krause, individually and as an

Officer of the Huntington Beach Police Department; Officer

Rand, individually and as an Officer of the Huntington Beach

Police Department, Defendants-Appellees.

Nos. 94-55971, 94-55972.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 11, 1996.

Decided May 28, 1996.

Robert C. Moest, Fleishman, Fisher & Moest, Los Angeles, California, for plaintiff-appellant Dahl.

Donald W. Cook, Los Angeles, California, for plaintiff-appellant Shugart.

Mark D. Rutter, Moore & Rutter, Long Beach, California, for the defendants-appellees.

On Appeal from the United States District Court for the Central District of California, Santa Ana, Alicemarie H. Stotler, District Judge, Presiding.

Before: BRIGHT, ^* NORRIS, and WIGGINS, Circuit Judges.

OPINION

BRIGHT, Circuit Judge.

If there is a hell to which disputatious, uncivil, vituperative lawyers go, let it be one in which the damned are eternally locked in discovery disputes with other lawyers of equally repugnant attributes. ¹

This case illuminates the growing incivility among contending lawyers which mars our justice system and harms clients and the public interest. James Christopher Dahl and Ronald L. Shugart brought this civil rights action pursuant to 42 U.S.C. §§ 1983 and 1988 against the City of Huntington Beach, California (City) and various police officers. After extensive delays and abusive discovery conduct by attorneys for both parties, the district court eventually dismissed the entire case with prejudice. Dahl and Shugart appeal. We reverse the district court because outright dismissal penalizes Dahl and Shugart for their counsels' bad behavior, but rewards the opposing parties, notwithstanding that opposing counsels' uncivil conduct also contributed to the discovery problems.

I. BACKGROUND

Dahl and Shugart jointly filed suit in August 1991. Each alleged that in a separate incident he was viciously attacked by a police dog named "Brent" as he lay on the ground already restrained by officers, and that officers beat him and ordered the dog to bite him repeatedly. The injuries inflicted included deep dog bites on the thighs, groins, arms, and legs requiring stitches, permanent shoulder damage, and severe bruises. The City responded that the officers had acted reasonably and only with the force necessary to overcome Dahl's and Shugart's attempts to resist detention.

Discovery in the case proceeded at a slow, tortured pace. In late 1992, the court ordered Shugart's counsel Donald Cook to pay $2035 for filing a frivolous discovery motion. In September 1993, the City moved the court to compel Cook to pay the previously ordered sanction, and Cook did not oppose the motion. On October 18, 1993, the court granted defendants' motion and ordered Cook to pay $2035 and an additional $495 to cover defendants' costs. The court further directed all plaintiffs' counsel to pay $750 for failing to comply with a local rule. The court instructed counsel to pay these fines by October 25, and to file declarations in a specific clerk's office attesting to payment. Plaintiffs' counsel paid the $750, although one lawyer filed his declaration in the wrong clerk's office and another paid the fine a day late. Cook refused to pay the other fines, arguing he had been singled out unfairly and he had been unable to appeal the original sanction because it had not been "entered."

Throughout the process, the lawyers hindered the case's progress by missing deadlines and ignoring court directions. Under California's Central District Local Rule 9, counsel for the parties must meet at least forty days prior to the pretrial conference at a convenient time and place to exchange witness lists and exhibits, and plaintiffs must submit a memorandum of contentions of fact and law as well as a joint exhibit and witness list and joint pretrial order twenty-one days before the pretrial conference. After several delays, the court scheduled the pretrial conference for October 18, 1993, and the trial for December 14, 1993. On October 18, the parties were not prepared to proceed. At that time, the court warned that the case would be dismissed if Cook failed to pay the various discovery sanctions or to file the joint exhibit and witness list as required by Local Rule 9. The court later amended the order to extend it to all plaintiffs' counsel, and continued the pretrial conference until November 22, 1993.

On October 22, 1993, plaintiffs served a proposed joint exhibit list on defendants' counsel. Separate exhibit lists had apparently already been exchanged by the parties and the joint list was merely a consolidation of the separate lists. Counsel for plaintiffs also offered to make the voluminous exhibits available for inspection and copying at the offices of plaintiffs' counsel. Although the joint exhibit and witness list was due on November 1 pursuant to Local Rule 9, defendants did not sign or respond to plaintiffs' proposed list until November 10, when they asked that certain changes be made to it. Defendants simultaneously moved for dismissal of the action for noncompliance with Local Rule 9. Defense counsel argued plaintiffs had not complied with Local Rule 9 because Cook had made the exhibits available for inspection at his office rather than their offices, ² and because no joint exhibit list had been filed by Cook or signed by defendants. Plaintiffs' counsel Cook asserted defendants' attorney had not responded to plaintiffs' requests for a Local Rule 9 meeting made on October 11, 18, and 22, and November 7 and 9. Apparently, the parties' lawyers got into yet another squabble over whose office would be the site of the Local Rule 9 meeting.

On November 12, 1993, the court dismissed the case with prejudice pursuant to Federal Rules of Civil Procedure 41(b) and 16(f). The court based the dismissal on Cook's failure to pay the ordered fine, on all plaintiffs' counsels' failure to follow the sanction payment procedure prescribed by the court, and on the failure to file the joint exhibit and witness list and joint pretrial order on time. Both Dahl and Shugart filed motions seeking to set aside the dismissal. The court denied those motions, and Dahl and Shugart appeal.

II. DISCUSSION

Federal Rule of Civil Procedure 41(b) provides that a defendant may move for dismissal of an action for "failure of the plaintiff to prosecute or to comply with these rules or any order of court." Federal Rule of Civil Procedure 16(f) provides for the imposition of sanctions when an attorney disobeys a scheduling or pretrial order or is unprepared to participate in a pretrial conference.

Before imposing dismissal as a sanction, the district court must weigh several factors: the public's interest in expeditious resolution of litigation; the court's need to manage its docket; the risk of prejudice to the defendants; the public policy favoring disposition of cases on their merits; and the availability of less drastic sanctions. Thompson v. Housing Auth. of Los Angeles, 782 F.2d 829, 831 (9th Cir.) (per curiam), cert. denied, 479 U.S. 829, 107 S.Ct. 112, 93 L.Ed.2d 60 (1986). "Dismissal, however, is so harsh a penalty it should be imposed as a sanction only in extreme circumstances." Id. This court reviews a district court's dismissal under rule 41(b) for abuse of discretion, determining whether the sanction was clearly outside the acceptable range based upon the facts of the particular case....