Thomas v. Gerber Productions, 82-5184

• Decision Date: 31 January 1983
• Docket Number: No. 82-5184,82-5184
• Citation: 703 F.2d 353
• Parties: Donald Ray THOMAS, Plaintiff-Appellant, v. GERBER PRODUCTIONS & Columbia Pictures Television, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 353

703 F.2d 353

Donald Ray THOMAS, Plaintiff-Appellant, v. GERBER PRODUCTIONS & Columbia Pictures Television Defendants-Appellees.

No. 82-5184.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 3, 1982.

Decided Jan. 31, 1983.

Donald Ray Thomas, pro se.

Maren Christensen, Rosenfeld, Meyer, & Susman, Beverly Hills, Cal., for defendants-appellees.

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

Before ROBB, ^* SCHROEDER, and ALARCON, Circuit Judges.

ALARCON, Circuit Judge.

Appellant Donald Ray Thomas (hereinafter Thomas), acting as his own lawyer, has appealed from the dismissal of this action with prejudice. We reverse and remand.

After Thomas repeatedly, stubbornly, and improperly, ignored the patient efforts of the trial judge to compel completion of the taking of Thomas' deposition on December 14, 1981, the district court ordered that sanctions be imposed. The court stated as follows:

You're directed to submit yourself for a deposition in the office of Ms. Christensen at 10:00 o'clock on January 4, 1982, and, in addition to that, before that time you're directed to pay her a firm $750.00 for attorney's fees for your failure to adhere to the order of the court previously. If you do not do both of those things, I'll dismiss the action. Do you understand that, sir?

In reply to the court's inquiry, Thomas replied as follows:

Sir, I do not has $700 (sic) because I am in forma pauperis. I cannot understand. As I said before, Your Honor, my motion papers here on March 2nd--we came to your court, sir, and the Rules of Federal Procedure state that there must be a motion.

Thereafter, the following colloquy occurred:

THE COURT: Mr. Thomas, you have to rely upon the Court to determine what the rules require, and those rules being--as I recall it, you moved that discovery be terminated, and I learned that you had not given your deposition, and I ordered that your deposition be scheduled. If you don't appear for your deposition and counsel have to come in here making opposition to motions of this kind, that costs money of them, and you have a perfect right to appear in forma pauperis but have to carry out the orders of the Court, and, if you don't do it, you fail to do it at your peril. If this case is worth something to you, you can find $750.

MR. THOMAS: No sir, I cannot find $750.

THE COURT: Then I'm obliged to dismiss the case.

MR. THOMAS: Just a minute, your Honor. Before you dismiss the action, sir, you have not gone through my case here.

THE COURT: Oh, I have.

MR. THOMAS: No, sir, you have not.

THE COURT: I have read all the papers that have been submitted.

MR. THOMAS: If you've read all the papers, why have my rights been abridged by the Court?

THE COURT: Mr. Thomas, the Court does its best to accommodate the rights of all parties, the Plaintiff in pro per as well as the Defendant, but you have not right to require the Defendants to spend the money that they have spent in defending this action. If you do not participate as a Plaintiff is obliged to do--

MR. THOMAS: I participated. I attended the deposition on January 27th of this year when it was scheduled. The Defendant said she was not satisfied with the answers. She was going to make a motion to compel. It has been ten and a half months, and she has not filed that motion to compel.

THE COURT: I read all the papers. In March I directed that your deposition be taken, and you did not--

MR. THOMAS: I have no knowledge of that, Your Honor, and I did not receive an order from the Court or from the Defendants.

THE COURT: The deposition will be taken on January 4th of 1982 by which time you will have paid $750 to Defense counsel. If you do not do so, I'll dismiss the action. That will be the order, Mr. Thomas.

MR. THOMAS: Sir,--

THE COURT: You may appeal from the order of this Court if you are so disposed.

MR. THOMAS: Appeal?

THE COURT: To the Court of Appeals.

MR. THOMAS: This is an unfair burden to me.

THE COURT: Mr. Thomas, I do not like to impose unfair burdens. We have been through this before.

MR. THOMAS: Yes, and I cannot understand.

THE COURT: All right. I have done the best I can to cause you to understand. That will be the order, and the discussion is over. I must go on with the calendar.

From the above comments, it would appear that the district court determined that dismissal was an appropriate sanction. Nevertheless, the plaintiff was given one last opportunity to save his claim by submitting to a deposition and compensating opposing counsel for their wasted time and effort.

No hearing was conducted by the court to determine whether Thomas had the ability to comply with that portion of the court's order which required him to pay $750.00. Thus, the only information which the court received on December 14, 1981 concerning Thomas' ability to comply with the court's order was his unsworn statement that he could not pay the amount ordered.

On January 4, 1982, Thomas appeared at the offices of counsel for appellees and submitted to the taking of his deposition, however, he did not pay the $750.00 sanction as ordered. Counsel for appellees alleged in her declaration in support of her motion to dismiss this action that she "asked plaintiff if he intended to make such payment as ordered by this court, and he responded that he did not so intend." Counsel for appellees thereafter advised Thomas that she would go forward with his deposition "without prejudice to defendants' right to move for a dismissal of the complaint on the grounds that plaintiff refused to comply with this court's order to pay said $750.00."

In her supplemental memorandum of points and authorities filed in support of defendants' motion for dismissal of this action with prejudice, counsel for appellees argued:

In a situation such as this, where the plaintiff has been warned by this Court that failure to make timely payment of the $750.00 would result in dismissal of his complaint, such dismissal is mandated if our courts are to continue to operate in an orderly manner.

On January 11, 1982, the court dismissed the action with prejudice after being informed that the deposition had been taken but that the $750.00 was not paid. No evidence was taken to determine whether Thomas had the...