E. B. v. Baldwin Park Usd ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 7 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
E. B., by and with his parents Richard No. 17-56803
Briseno and Lorena Garcia; et al.,
D.C. No. 2:17-cv-00056-R-JC
Plaintiffs-Appellants,
v. MEMORANDUM*
BALDWIN PARK UNIFIED SCHOOL
DISTRICT,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Submitted May 14, 2019**
Pasadena, California
Before: NGUYEN and OWENS, Circuit Judges, and ANTOON,*** District Judge.
Student E.B., by and with his parents Richard Briseno and Lorena Garcia
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable John Antoon II, United States District Judge for the
Middle District of Florida, sitting by designation.
(collectively, “E.B.”), appeals from the district court’s sua sponte dismissal of his
action under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et
seq., against Baldwin Park Unified School District. As the parties are familiar with
the facts, we do not recount them here. We have jurisdiction under 28 U.S.C.
§ 1291, and we reverse and remand.1
1. The district court abused its discretion in dismissing the action sua
sponte for lack of prosecution after E.B. did not appear at a pretrial conference.
See Oliva v. Sullivan, 958 F.2d 272, 274 (9th Cir. 1992) (providing the standard of
review). The district court failed to consider less drastic alternatives. See id. (“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 omitted)). In addition, the district court failed to warn E.B. that dismissal
was imminent after E.B. missed filing deadlines. See id. (“The district judge has
an obligation to warn the plaintiff that dismissal is imminent.”). Accordingly, we
reverse and remand for further proceedings.
2. We do not consider E.B.’s argument that the district court erred in
denying his request for substitution of counsel because we lack jurisdiction to
review this order. See Al-Torki v. Kaempen, 78 F.3d 1381, 1386 (9th Cir. 1996)
1
We grant E.B.’s unopposed motion to include a nonrecord declaration
in the excerpts of record (Dkt. No. 16).
2
(“[I]nterlocutory orders, generally appealable after final judgment, are not
appealable after a dismissal for failure to prosecute, ‘whether the failure to
prosecute is purposeful or is a result of negligence or mistake.’” (citation omitted)).
3. We grant E.B.’s request to reassign this case to a different district
judge. Reassignment is warranted here to “preserve the appearance of justice.”
Krechman v. County of Riverside, 723 F.3d 1104, 1112 (9th Cir. 2013) (citation
omitted). Thus, we instruct the Clerk of Court for the Central District of California
to reassign this case to a different district judge on remand.
REVERSED AND REMANDED.
3