Malone v. U.S. Postal Service

• Citation: 833 F.2d 128
• Decision Date: 23 November 1987
• Docket Number: No. 85-2244,85-2244
• Parties: 45 Fair Empl.Prac.Cas. 901, 45 Empl. Prac. Dec. P 37,587, 9 Fed.R.Serv.3d 897 Ann J. MALONE, Plaintiff/Appellant, v. UNITED STATES POSTAL SERVICE, an agency of the United States, et al., Defendant/Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 128

833 F.2d 128

45 Fair Empl.Prac.Cas. 901,

45 Empl. Prac. Dec. P 37,587, 9 Fed.R.Serv.3d 897

Ann J. MALONE, Plaintiff/Appellant, v. UNITED STATES POSTAL SERVICE, an agency of the United States, et al., Defendant/Appellee.

No. 85-2244.

United States Court of Appeals Ninth Circuit.

Argued and Submitted July 14, 1987.

Decided Nov. 23, 1987.

Isable Medford, Oakland, Cal., Michael S. Sorgen, San Francisco, Cal., for plaintiff-appellant.

Joseph P. Russoniello, Judith A. Whetstine, and Mary Beth Donley, San Francisco, Cal., Stephen E. Alpern and Lori Joan Dym, Washington, D.C., for defendant-appellee.

Appeal from the United States District Court for the Northern District of California.

Before CHOY, Senior Circuit Judge, SNEED and TANG, Circuit Judges.

CHOY, Senior Circuit Judge:

Ann Malone appeals the district court's decision, following Malone's violation of a pretrial order, to dismiss with prejudice her suit against the United States Postal Service. We affirm.

BACKGROUND

Ann Malone brought suit against the United States Postal Service (the "Government") for alleged violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e et seq. The trial began in November 1984. Because Malone's attorney presented the case in a confused and inefficient manner, the district court restricted counsel's presentation of witnesses and evidence. Counsel believed that the court was treating her unfairly; on November 16, she made a motion for a mistrial. The court denied the motion, but a few hours later declared a mistrial on its own motion. The district court explained in the June 10, 1985, dismissal order at issue here that the mistrial had been declared because of lack of preparation on the part of Malone's attorney.

The district court issued a pretrial order on December 13, 1984. The order required both parties to file information with the court prior to a new trial. Among the information requested was a complete list of witnesses and a "thorough and complete list of each and every" direct question and anticipated response. The court stated that no oral argument concerning this requirement would be entertained, and that motions for continuances would not be accepted. The deadline for compliance with the order was April 25, 1985. Trial was set for June 1985. On April 23, 1985, Malone's attorney informed the Government by telephone that Malone would not be complying in any way with the order. The Government had already devoted considerable effort to complying with the pretrial order. On April 26, Malone for the first time filed objections to the pretrial order, requesting recusal of the trial judge, modification of the pretrial order, and a continuance.

On May 1, 1985, the Government moved to dismiss the action on the ground that Malone had willfully failed to comply with any aspect of the pretrial order. A hearing was held on May 16, at which Malone's attorney stated that Malone had not complied with the pretrial order because Malone lacked the financial resources to do so. The district court granted the Government's motion, and dismissed the action with prejudice on June 10, 1985.

Malone timely appeals the order of dismissal.

DISCUSSION

Malone makes three basic arguments against the district court's order of dismissal: 1) the district court abused its discretion in weighing the five factors which we have set forth to guide dismissal decisions; 2) the district court's pretrial order was invalid and therefore the court was precluded from sanctioning Malone's violation of the order; and 3) Malone has been unfairly punished for the faults of her attorney. We reject all of these arguments.

I. Dismissal Factors

The district court relied primarily on Fed.R.Civ.P. 16(f) in ordering dismissal. Rule 16(f) states that for violation of a pretrial order a judge may order sanctions as provided in Fed.R.Civ.P. 37(b)(2)(C). Rule 37(b)(2)(C) provides for the sanction of dismissal. The district court also relied on Fed.R.Civ.P. 41(b), which enables a court to order dismissal "[f]or failure of the plaintiff ... to comply with ... any order of [the] court...." The standards governing dismissal for failure to obey a court order are basically the same under either of these rules. See Price v. McGlathery, 792 F.2d 472, 474 (5th Cir.1986).

The district court's dismissal of a case with prejudice is reviewed for abuse of discretion. Thompson v. Housing Authority, 782 F.2d 829, 832 (9th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 112, 93 L.Ed.2d 60 (1986). "Dismissal is a harsh penalty and is to be imposed only in extreme circumstances." Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir.1986). Nevertheless, we will overturn a dismissal sanction only if we have a definite and firm conviction that it was clearly outside the acceptable range of sanctions. Chism v. National Heritage Life Insurance Co., 637 F.2d 1328, 1331 (9th Cir.1981).

A district court must weigh five factors in determining whether to dismiss a case for failure to comply with a court order: "(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions." Thompson, 782 F.2d at 831. It is not necessary for a district court to make explicit findings to show that it has considered these factors. Henderson, 779 F.2d at 1424. We may review the record independently to determine if the district court has abused its discretion. Id.

In the instant case, the district court did not explicitly indicate that it had considered any of the five dismissal factors in rendering its decision. The court explained its decision to dismiss as follows:

[The Court] feels that the flagrant disobedience by plaintiff's counsel, her bad faith and her repeated failure to comply in any respect with the Court's pretrial order warrants the sanction of dismissal in this case. The Court's finding in this regard is amplified by the fact that plaintiff's counsel did not communicate in any way with the Court or opposing counsel at any time in an attempt to clarify or modify the Court's pretrial order until April 23, 1985 when plaintiff's counsel ... informed defendants' counsel for the first time that plaintiff would not file any of the requested documents by the Court.

The court concluded that the violation of the pretrial order was deliberate and willful. The court also rejected the excuse given by counsel for refusing to comply with the order: that Malone lacked the financial means to meet the order's detailed requirements.

Because the district court did not explicitly consider the five dismissal factors set forth in Thompson, we must review the record independently to determine whether the order of dismissal was an abuse of discretion. Henderson, 779 F.2d at 1424. Our independent evaluation of the dismissal factors convinces us that the district court's order was not an abuse of discretion.

A. The First Two Dismissal Factors

The first two dismissal factors are the public interest in expeditious resolution of litigation and the trial court's interest in docket control. It is clear that these two factors support the district court's decision to dismiss Malone's case. Malone's dilatory conduct greatly impeded resolution of the case and prevented the district court from adhering to its trial schedule. See Chism, 637 F.2d at 1331-32.

B. Prejudice to Defendant

In determining whether a defendant has been prejudiced, we examine whether the plaintiff's actions impair the defendant's ability to go to trial or threaten to interfere with the rightful decision of the case. See Rubin v. Belo Broadcasting Corp. (In re Rubin), 769 F.2d 611, 618 (9th Cir.1985). In the instant case, the district court was primarily concerned with counsel's bad faith decision to wait until the last minute before notifying the Government that Malone was not complying with the pretrial order. While Malone did nothing to fulfill her responsibilities under the pretrial order, the Government made a diligent effort to comply with the pretrial order in a timely manner. We have no doubt that Malone's last-minute notification of her decision not to comply with the pretrial order had a prejudicial effect on the Government. See North American Watch Corp. v. Princess Ermine Jewels, 786 F.2d 1447, 1451 (9th Cir.1986) (endorsing district court's finding that "willful violation of the discovery order had, given the imminence of the trial date, prejudiced [defendant's] ability to prepare for trial"); Scarborough v. Eubanks, 747 F.2d 871, 876 (3d Cir.1984) (prejudice includes "irremediable burdens or costs imposed on the opposing party"); Chism, 637 F.2d at 1331 (indicating that defendant had been prejudiced by plaintiff's continual flouting of discovery rules, failure to comply with pretrial conference obligations, and repeated violations of local court rules); cf. Henderson, 779 F.2d at 1425 (although no specific showing of prejudice had been made below, "[w]here counsel continues to disregard deadlines, warnings, and schedules set by the district court, we cannot find that a lack of prejudice to defendants is determinative" in evaluating the propriety of dismissal).

We hold that the prejudice to the Government from Malone's actions was sufficient to justify an order of dismissal. In so holding, we place particular reliance on the district court's determination that Malone's excuse for her conduct was groundless. Whether prejudice is sufficient to support an order of dismissal is in part judged with reference to the strength of the plaintiff's excuse for the default. See Nealey v. Transportacion Maritima Mexicana, S.A., 662 F.2d 1275, 1280 (9th Cir.1980). The district court rejected the excuse that Malone lacked the financial resources to comply with the pretrial order. The court found that compliance with...