Christian Joubert v. Anne Delamater , 616 F. App'x 291 ( 2015 )

FILED
NOT FOR PUBLICATION SEP 08 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTIAN JOUBERT, No. 13-35559
Plaintiff - Appellant, D.C. No. 1:12-cv-00209-PA
v.
MEMORANDUM*
ANNE E. DELAMATER,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, District Judge, Presiding
Submitted August 25, 2015**
Before: McKEOWN, CLIFTON, and HURWITZ, Circuit Judges.
Christian Joubert appeals pro se from the district court’s judgment
dismissing his diversity action with prejudice for failure to prosecute. We have
jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion, Ash v.
Cvetkov, 739 F.2d 493, 495 (9th Cir. 1984), and we reverse and remand.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
The district court dismissed Joubert’s action with prejudice for failure to
prosecute after Joubert did not appear at a status conference. The district court
failed to consider the adequacy of less drastic sanctions, such as dismissal without
prejudice. See Oliva v. Sullivan, 958 F.2d 272, 274 (9th Cir. 1992) (“A district
court abuses its discretion if it imposes a sanction of dismissal without first
considering the impact of the sanction and the adequacy of less drastic sanctions.”
(citation and internal quotation marks omitted)); see also Ferdik v. Bonzelet, 963
F.2d 1258, 1260 (9th Cir. 1992) (“[D]ismissal is a harsh penalty and, therefore, it
should only be imposed in extreme circumstances.”). Accordingly, we reverse and
remand for further proceedings.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
All pending motions and requests are denied. Joubert’s request for
attorney’s fees, set forth in the opening brief, is denied.
REVERSED and REMANDED.
2 13-35559