Edith Menbreno v. Jonathan Stringer ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 30 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDITH MENBRENO; LUIS SORIANO, Nos. 18-55239, 18-55315
Plaintiffs-Appellants/Cross-Appellees, D.C. No. 2:16-cv-00687-MRW
v.
MEMORANDUM*
JONATHAN STRINGER,
Defendant-Appellee/Cross-Appellant.
Appeal from the United States District Court
for the Central District of California
Michael R. Wilner, Magistrate Judge, Presiding
Argued and Submitted August 16, 2019
Pasadena, California
Before: SCHROEDER and R. NELSON, Circuit Judges, and LEFKOW,** District
Judge.
Edith Menbreno and Luis Soriano appeal from the district court’s final
judgment dismissing their case for failure to prosecute. We have jurisdiction under
28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Joan H. Lefkow, United States District Judge for the
Northern District of Illinois, sitting by designation.
Menbreno and Soriano, citizens and residents of El Salvador, sued Officer
Stringer for fatally shooting their son. Because of logistical difficulties and to spare
them the discomfort of discussing their son’s death unless necessary, the parties
stipulated in September 2017 to deferring the plaintiffs’ depositions in Los Angeles
until after the district court ruled on Stringer’s motion for summary judgment.
Unbeknownst to Stringer, however, Menbreno was denied a visa to travel to the
United States, and there is no evidence in the record that Soriano ever applied for
one.
The district court denied summary judgment, and Stringer tried to schedule
the plaintiffs’ depositions. Plaintiffs’ counsel then told Stringer’s counsel for the
first time, about three weeks before trial, that the plaintiffs could not travel to the
United States. Plaintiffs did not notify the court until the final pretrial conference,
ten days before trial. The court granted plaintiffs’ motion for leave to testify
remotely, finding that they had “(barely) shown good cause and compelling
circumstances due to immigration complications.” The court warned that if counsel
could not “secure the appearance of either or both of the parents for deposition and
trial testimony, the parties must be prepared to explain whether trial can proceed.”
Neither plaintiff was deposed. At the appointed hour for the plaintiffs’
remote testimony, Soriano did not appear, and Menbreno’s video feed could not
connect to the courthouse. After over twenty minutes of futile attempts to connect
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the feed, the court excluded the plaintiffs’ testimony and granted Stringer’s motion
to dismiss the action for the plaintiffs’ failure to prosecute.
We review a dismissal for failure to prosecute for an abuse of discretion. Al-
Torki v. Kaempen, 78 F.3d 1381, 1384 (9th Cir. 1996). “The district court’s
dismissal will only be disturbed if there is ‘a definite and firm conviction that the
court below committed a clear error of judgment in the conclusion it reached upon
a weighing of relevant factors.’” Pagtalunan v. Galaza, 291 F.3d 639, 640–41 (9th
Cir. 2002) (quoting Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992)). We
consider five factors in review of dismissals for failure to prosecute: “(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 defendants/respondents; (4) the
availability of less drastic alternatives; and (5) the public policy favoring
disposition of cases on their merits.” Pagtalunan, 291 F.3d at 642 (citing Ferdik,
963 F.2d at 1260–61). This court “may affirm a dismissal where at least four
factors support dismissal, or where at least three factors ‘strongly’ support
dismissal.” Yourish v. Calif. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (quoting
Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998)).
The district court expressly considered the required five factors, and we find
no abuse of discretion. The public interest in expeditious resolution and the court’s
docket management favored dismissal. Yourish, 191 F.3d at 990; In re Eisen, 31
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F.3d 1447, 1452 (9th Cir. 1994).
Stringer was prejudiced. He deferred and eventually lost the chance to
depose his opponents, relying on their promise to be present for depositions in the
United States after the close of discovery. He was then put to the burden and
expense of a trial for which the plaintiffs were not prepared to proceed. “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.” Malone v. U.S.
Postal Serv., 833 F.2d 128, 131 (9th Cir. 1987) (citing Nealey v. Transportacion
Maritima Mexicana, S.A., 662 F.2d 1275, 1280 (9th Cir. 1980)). Soriano had no
excuse; he made no attempt to be present. Menbreno’s excuse was better but not so
strong that this factor flips in her favor. Although she at least applied for a visa and
attempted to testify, her counsel’s tardy disclosure forced her to rely on foreseeably
unreliable technology without a contingency plan. The district court gave her
ample opportunity to proceed but she could not. That the last of several failures
was not her fault does not alleviate the prejudice to Stringer.
Nor were lesser alternatives available. Plaintiffs argue that the court should
have permitted them to testify by audio only. The court found that audio-only
testimony would lack adequate safeguards. The parties and court staff had
repeatedly told the court that they had difficulty connecting to El Salvador. What
audio the court heard from the attempted video link contained audible feedback
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and cut in and out. Because plaintiffs’ proposed alternative was not viable, the
fourth factor weighed in favor of dismissal.
Finally, the public policy in favor of disposing cases on the merits ordinarily
weighs against dismissal. Yourish, 191 F.3d at 992. But it was not clear that the
case could have been resolved on the merits with two absentee plaintiffs claiming
to succeed to the rights of a decedent but unable to testify to their relationship to
him. This factor weighed at most slightly against dismissal.
Because four factors weighed in favor of dismissal and one only slightly
against, we affirm. Id. at 990. Having affirmed the dismissal for failure to
prosecute, we need not address the remaining issues on appeal and cross-appeal.
See Al-Torki, 78 F.3d at 1385–86 (holding interlocutory issues not reviewable
where this court affirms dismissal for failure to prosecute).
AFFIRMED.
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