West Coast Theater Corp. v. City of Portland
| Decision Date | 09 January 1990 |
| Docket Number | No. 87-4356,No. CV-86-802-GEJ,87-4356,CV-86-802-GEJ |
| Citation | 897 F.2d 1519 |
| Parties | WEST COAST THEATER CORPORATION; Paramount Management Corporation; Paramount Northwest Properties, Inc.; Israel Volotin; Rhea Volotin; Eulysses Lewis; Norman Volotin, Plaintiffs-Appellant, and Kenneth C. Dixson, Esq., Intervenor, v. CITY OF PORTLAND; Portland Performing Arts Center Committee; Ronald Ragan; Robert Scanlan; Mildred Schwab, City Commissioner; Ariel Rubenstine; David Leiken; Pat Harrington; John Schwabe; Oregonian Publishing Company; William M. Dale, Hon.; George M. Joseph, Chief Judge, Oregon Court of Appeals; Berkeley Lent; Edwin J. Peterson, Chief Justice; Donald R. Stark; B.B. Lyon; Chris Thomas; Richard McCann; Robert Ames; Oregon Symphony Association; Downtown Community Association; David Lau, Defendants-Appellees. D.C. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Ken Dixson, Portland, Or., for plaintiffs-appellants, West Coast Theater Corp., Paramount Northwest Properties, Inc., Israel Volotin, Estate of Rhea Volotin, Norman Volotin.
Eulysses Lewis, Seattle, Wash., pro se.
Harry Auerbach, Deputy City Atty., Portland, Or., for defendants-appellees, City of Portland, Robert Scanlan, Pat Harrington, Donald R. Stark, and Barbee B. Lyon.
Gerald R. Pullen, Portland, Or., for defendant-appellee John Schwabe.
Michael G. Holmes, Spears, Lubersky, Bledsoe, Anderson, Young & Hilliard, Portland, Or., for defendant-appellee Oregonian Publishing Co.
Robert M. Atkinson, Virginia L. Linder and Dave Frohnmayer, Appellate Div., Salem, Or., for defendants-appellees William M. Dale, George M. Joseph, Berkeley Lent, and Edwin Peterson.
Appeal from the United States District Court for the District of Oregon.
Before WRIGHT, TANG and CANBY, Circuit Judges.
West Coast Theater ("West Coast") appeals (1) the dismissal of its complaint under Federal Rule of Civil Procedure 41(b) for lack of prosecution; (2) the grant of summary judgment in favor of the City of Portland, Robert Scanlan, Pat Harrington, Donald Stark and Barbee Lyon ("the Portland defendants"); (3) the granting of (i) Federal Rule of Civil Procedure 11 sanctions in favor of the Portland defendants and (ii) 28 U.S.C. Sec. 1927 sanctions in favor of the Oregonian Publishing Company ("the Oregonian"); and (4) the Federal Rule of Civil Procedure 4(j) dismissal of its complaint against (i) Oregon Supreme Court Justices Edwin Peterson and Berkeley Lent, Oregon Court of Appeals Judge George Joseph, and former Oregon trial judge William Dale ("the judicial defendants") and (ii) the Oregonian.
We affirm. Because we conclude that West Coast has brought a frivolous appeal,
we also award costs and attorney fees pursuant to Federal Rule of Appellate Procedure 38 as sanctions.
West Coast's 1 current action arises out of an earlier Oregon state court eminent domain proceeding. In that earlier proceeding, the City of Portland, Oregon acquired West Coast's property for use as part of its Performing Arts Center. West Coast was awarded $4,100,000 as just compensation for the property by a jury verdict in July 1983. West Coast appealed the judgment to the Oregon Court of Appeals.
In April 1984, the Oregon Court of Appeals dismissed West Coast's appeal because it had failed to serve properly all of the parties to the appeal. The Oregon Court of Appeals subsequently denied reconsideration of its ruling. West Coast then petitioned the Oregon Supreme Court for review. The Oregon Supreme Court rejected the petition in July 1984.
On June 23, 1986, West Coast filed a complaint in federal court against twenty-one named defendants. The defendants included the City of Portland, Portland City Commissioners, members of the Performing Arts Center committee, the Oregonian, the various judges involved with the state court proceeding and the lawyers who represented the City of Portland.
In its complaint, West Coast asserts a right to recover under 42 U.S.C. Secs. 1981, 1982, 1983, and 1985; 15 U.S.C. Secs. 1-7, and the First, Fourth, Fifth, Seventh, Ninth, Thirteenth, and Fourteenth Amendments to the Constitution. West Coast also seeks injunctive relief under 28 U.S.C. Secs. 2201 and 2202.
When the complaint was filed, the district court issued an order establishing (1) October 21, 1986 as the discovery cut-off date and (2) November 20, 1986 as the due date for lodging the pretrial order.
West Coast never properly served the June 23, 1986 complaint upon the judicial defendants and the Oregonian. Instead, West Coast tried to serve these defendants with an earlier incomplete draft of the complaint, which contained just 32 pages as opposed to the 39 pages in the filed complaint.
On November 10, 1986, the Portland defendants moved for summary judgment ("Portland summary judgment"). On November 20, 1986, West Coast filed a motion to reopen discovery and extend the date for lodging the pretrial order. On November 20, 1986, the judicial defendants moved for summary judgment as well as dismissal under Federal Rules of Civil Procedure 12(b)(4), 12(b)(5) and 4(j). On December 15, 1986, the magistrate ordered discovery to be completed by January 20, 1987 and the pretrial order be lodged by February 20, 1987.
On January 23, 1987, three days after discovery was to be completed, West Coast filed another motion retroactively to extend discovery. At the hearing on this motion, the magistrate determined that West Coast had conducted no discovery. Consequently, the motion was denied.
On January 30, 1987, the Oregonian filed for summary judgment. In addition, the Oregonian moved for dismissal because West Coast failed properly to serve the complaint.
In a series of findings and recommendations in February, March, May and June of 1987, the magistrate made the following recommendations to the district court:
(1) the Portland summary judgment motion should be granted on the claims that had been fully, fairly and necessarily litigated in state court because the full faith credit clause and 28 U.S.C. Sec. 1738 require federal courts to give the Oregon state court determinations preclusive effect;
(2) the Portland summary judgment should be granted on the remaining claims (3) West Coast and its attorney should pay Rule 11 sanctions to the City of Portland in the sum of $10,370.80;
because West Coast had failed to present any evidence to support its claims;
(4) the judicial defendants and the Oregonian should be dismissed from the suit pursuant to Rule 4(j) because West Coast failed properly to serve these defendants and failed to show any "good cause" for this failure;
(5) the Oregonian should be granted sanctions against West Coast's counsel under 28 U.S.C. Sec. 1927 which makes counsel liable for unreasonable and vexatious multiplication of the proceedings; and
(6) the complaint should be dismissed under Federal Rule of Civil Procedure Rule 41(b) for lack of prosecution because West Coast (i) failed to lodge its pretrial order; (ii) failed to appear at a show cause hearing as to why the complaint should not be dismissed for lack of prosecution; (iii) failed to respond in any way to the pretrial order or the show cause hearing; and (iv) failed to conduct any discovery whatsoever in the case since January of 1987.
West Coast failed to file any objections to the magistrate's findings and recommendations. The district court adopted all of the magistrate's findings and recommendations and dismissed the entire action. West Coast filed a timely appeal.
West Coast contends that the district court erred when it dismissed the action for lack of prosecution because: (1) West Coast had a non-frivolous excuse; (2) the defendants suffered no prejudice; (3) the magistrate denied the requests to reopen discovery; (4) the delays resulted from the conduct of its attorney; and (5) no warnings were given. We disagree.
We review a district court's order dismissing an action for lack of prosecution for an abuse of discretion. Carey v. King, 856 F.2d 1439, 1440 (9th Cir.1988). "In determining whether an abuse of discretion has occurred, a number of factors are relevant, including the plaintiff's diligence, the trial court's need to manage its docket, the danger of prejudice to the party suffering the delay, the availability of alternate sanctions, and the existence of warning to the party occasioning the delay." Hamilton v. Neptune Orient Lines Ltd., 811 F.2d 498, 499 (9th Cir.1987).
A plaintiff cannot avoid dismissal by arguing that he or she is an innocent party who will be made to suffer for the errors of his or her attorney. Id. at 500. The established principle is that the faults and defaults of the attorney may be imputed to, and their consequences visited upon, his or her client. In re Hill, 775 F.2d 1385, 1387 (9th Cir.1985).
However, because dismissal is a drastic step, this court will review the record to see if (1) the district court could have adopted less drastic alternatives, see id., and (2) the district court warned the plaintiff that dismissal was imminent. Hamilton, 811 F.2d at 500.
Here, we conclude that the district court did not abuse its discretion. West Coast prosecuted its case irresponsibly. West Coast (1) filed a number of untimely motions; (2) failed to appear at a number of scheduled hearings, including the show cause hearing on dismissal of the proceedings for lack of prosecution; (3) never sought any discovery, even though it requested and obtained one extension; and (4) delayed its service of the complaint to the last minute, and then served a number of the defendants with the wrong complaint.
None of West Coast's arguments entitle it to relief.
West Coast seems to offer two excuses for its delay: (1) the death of counsel's cousin prior to the June 1, 1987 show cause hearing; and (2) that the large number of defendants prevented...
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