Sacramento Valley Chapter of Nat. Elec. Contractors Ass'n v. International Broth. of Elec. Workers, Local 340
| Decision Date | 23 January 1990 |
| Docket Number | No. 88-2864,88-2864 |
| Citation | 894 F.2d 410 |
| Parties | Unpublished Disposition NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. SACRAMENTO VALLEY CHAPTER OF the NATIONAL ELECTRICAL CONTRACTORS ASSOCIATION, et al., Plaintiffs/Appellants, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 340, Defendants/Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before WIGGINS and KOZINSKI, Circuit Judges, and WM. MATTHEW BYRNE, Jr., District Judge. **
This appeal is one of several matters that have arisen from a 1981 labor dispute between the appellants, Sacramento Valley Chapter of the National Electrical Contractors Association (NECA) and its member contractors and the appellees, International Brotherhood of Electrical Workers (IBEW), and Local 340. 1 Early in that year, the parties were attempting to negotiate a package labor agreement focusing on inside wiremen after a previous collective bargaining agreement expired. Negotiations were held between February and June, 1981, but proved fruitless. On June 11, Local 340 went on strike. The strike terminated on September 15, 1981.
NECA originally brought suit on July 24, 1981, seeking damages as a result of the strike. The plaintiffs amended their complaint several times. The most recent third amended complaint set forth five claims: (1) coercion of employees in violation of Secs. 303(a) and 8(b)(4)(A) and (B) of the National Labor Relations Act (NLRA), 29 U.S.C. Secs. 158(b)(4), 187(a); (2) damages for the insertion of allegedly illegal "picket-line recognition" and "shoulder to shoulder" clauses in the proposed agreement and for the resulting strike in violation of Sec. 8(b)(4)(A) of the NLRA; (3) damages for the insertion of allegedly illegal "scope of work" clauses in the proposed agreement and for the resulting strike in violation of Sec. 8(b)(4)(A) and Sec. 8(e) of the NLRA; (4) damages for the insertion of an allegedly illegal "work preservation clause" in the proposed agreement and for the resulting strike in violation of Sec. 8(b)(4)(A) and Sec. 8(e) of the NLRA; (4) damages for the insertion of an allegedly illegal "work preservation clause" in the proposed agreement and for the resulting strike in violation of Sec. 8(b)(4)(A) and Sec. 8(e) of the NLRA; (5) coercion of certain employers causing their withdrawal from the multi-employer collective bargaining agreement scheme.
The parties filed cross motions for summary judgment on NECA's claims. After a hearing on June 3, 1986, the district court granted defendant summary judgment on claims one, two, four and five. 2 Sacramento Valley NECA v. IBEW, 637 F.Supp. 1417, 1419 n. 1 (E.D.Cal.1986) aff'd, No. 86-2026 (9th Cir. Oct. 18, 1989).
The district court then certified for interlocutory appeal the order granting summary judgment on the plaintiffs' second and fourth claims. The court stated that "the parties are directed to inform the court within ten (10) days of the effective date of the order of the court of appeals' disposition as to whether it will allow interlocutory appeal." Id at 1432. Further, in a footnote to the final paragraph of the order, the court directed that Id. at 1432-33 n. 18.
On September 18, 1986, the Ninth Circuit denied the petition for interlocutory review. No party informed the district court of that decision and the plaintiffs did not renotice their motion regarding agency. Seventeen months later, in February, 1988, the district court set a hearing to determine the status of the case. Thereafter, both defendants moved to dismiss the case for failure to prosecute. The plaintiffs contended that they thought that the district court's order required them to inform the court of the disposition of the appeal after all appeals in the case were completed or after a motion to dismiss was determined in a related matter. The court granted defendants' motion to dismiss on the grounds that plaintiffs had delayed prosecution, lost interest in the case, and had no credible explanation for the failure to prosecute.
On June 16, 1988, the plaintiffs filed a notice of appeal. The notice listed the appellant as the "Sacramento Valley Chapter of the National Electrical Contractors Association, et al." The notice further stated that the appeal was "from the judgment granting dismissal for lack of prosecution issued by the Honorable Lawrence K. Karlton ... and entered on June 3, 1988." E.R. at 16. The briefs present arguments on behalf of all the plaintiffs below and also request this court to overturn the summary judgment order issued of June 3, 1986.
As a preliminary matter, the appellees present two challenges to the appeal. First, they argue that under Fed.R.App.P. 3(c) all parties, except those specifically stated in the notice of appeal, should be dismissed and, thus, only NECA is a party to this appeal. Second, the appellees maintain that the failure to mention the summary judgment order in the notice of appeal limits the issue before the court as to the propriety of the dismissal order.
Appellant listed only NECA as a party, followed by the phrase "et al." In Torres v. Oakland Scavenger Co., --- U.S ---, 108 S.Ct. 2405, 2409 (1988), the Supreme Court held that a failure to name a party specifically in the notice of appeal, even though the notice listed one party followed with the term "et al.," did not meet the specificity requirements of Rule 3(c) and precluded that party from joining in the appeal. This court has also barred an appeal by a party not named in the notice of appeal except by the use of "et al." following another party's name. Meehan v. County of Los Angeles, 856 F.2d 102, 105 (9th Cir.1988).
Torres and Meehan control this case. Thus, only NECA is a proper appellant.
In contrast to the naming of parties under Rule 3(c), this court employs a more relaxed standard in assessing whether the subject of an appeal was properly noticed. A two-part test is employed: (1) whether intent to appeal a specific judgment can be fairly inferred, and (2) whether the appellee is prejudiced or misled by the mistake. Meehan, supra, at 105; United States v. One 1977 Mercedes Benz, 708 F.2d 444, 451 (9th Cir.1983), cert. denied, 464 U.S. 1071 (1984). Generally, a subject omitted from the notice of appeal will nevertheless be considered if the appellee had notice of the omitted issue and had the opportunity to brief the matter. Lynn v. Sheet Metal Workers' Int'l Assoc., 804 F.2d 1472, 1481 (9th Cir.1986) aff'd, --- U.S. ----, 109 S.Ct. 639 (1989).
The appellees contend that the intent to appeal the summary judgment issue, which was not specifically mentioned in the notice of appeal, cannot be inferred here. The notice, they claim, was explicitly limited to the dismissal issue and thus the summary judgment order is not presented for appellate review.
In Lynn, the appellee was served with a copy of a brief in which a summary judgment issue omitted from the notice of appeal was fully discussed. The appellee briefed a full reply including the summary judgment issue. The court found that notice and intent to appeal the summary judgment issue could be inferred from these circumstances. 804 F.2d at 1481; see also, Meehan, 856 F.2d at 106.
In this case, the appellant served the appellees with opening briefs that raised the summary judgment issue. The appellees then filed a joint brief that fully responded to the summary judgment issue. Consequently, we find that both the dismissal and summary judgment orders are properly before us on this appeal. However, as discussed infra, because we affirm the order of dismissal, we do not reach the summary judgment challenge.
The granting of a motion to dismiss for lack of prosecution is reviewed for abuse of discretion. The decision below may be overturned only if the appellate court has a definite and firm conviction that the result was clearly outside the acceptable range of sanctions. Malone v. United States Postal Service, 833 F.2d 128, 130 (9thCir.1987), cert. denied, --- U.S. ----, 109 S.Ct. 59 (1988). 3
Five factors are considered as to whether a dismissal sanction is appropriate:
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;
5. the availability of less drastic sanctions. Id.
The appellant contends that the district court failed to weigh the Malone factors adequately. In particular, it contends that the district court failed to consider properly the availability of less drastic alternatives and did not provide warnings that dismissal could occur for failure to prosecute.
We find that the district court adequately weighed the Malone criteria. Each of the five criteria is explicitly discussed in the order of dismissal. The court considered the public interest in expeditious litigation, the need to manage its docket, and the risk of prejudice to the appellees. The court found that the seventeen month...
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