Darrell King v. Dynasty M/V ( 2011 )

FILED
NOT FOR PUBLICATION MAY 17 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DARRELL KING, No. 10-35794
Plaintiff - Appellant, D.C. No. 2:09-cv-00792-RSL
v.
MEMORANDUM *
DYNASTY M/V, her tackles,
appurtenances, cargo, In Rem and her
owner and operators,
Defendant,
and
AMERICAN SEAFOODS CO,
Defendant - Appellee.
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, Chief District Judge, Presiding
Argued and Submitted May 6, 2011
Seattle, Washington
Before: SCHROEDER, McKEOWN, and CALLAHAN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Plaintiff-appellant Darrell King filed suit against Defendant American
Seafoods Company LLC (“ASC”) seeking damages for personal injuries he
allegedly suffered while employed as a seaman on Defendant M/V Dynasty. King
failed to respond to ASC’s written discovery requests for nine months and failed to
comply with three separate discovery orders compelling him to respond to written
discovery.
The district court granted ASC’s motion to compel on February 5, 2010,
ordering King to provide written discovery responses within seven days. On
February 19, 2010, King requested additional time “until the end of the day” to
provide responses. The district court granted the request, and ordered responses to
be made no later than midnight, February 25, 2010. On March 4, 2010, after King
again failed to provide responses, ASC filed a motion to dismiss pursuant to
Federal Rule of Civil Procedure 37(b)(2)(A). The district court denied the motion
on April 29, 2010, because less drastic sanctions were available. The court ordered
King to produce responses within seven days, deemed all objections other than
attorney-client privilege waived, and ordered King to pay ASC’s reasonable
attorney’s fees preparing the motion to dismiss. When King again failed to
produce any responses, ASC notified the court pursuant to the court’s April 29,
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2010 order, and again requested that the court dismiss the case. On May 11, 2010,
the district court dismissed King’s complaint based on these failures to fulfill his
discovery obligations and comply with the court’s orders. King filed a “motion to
reopen case”1 in which he blames his failures on technical problems with his
attorney’s fax machine and an employee in his attorney’s office who failed to
check an email account for the court’s ECF emails. He now appeals the denial of
the motion to reopen case and the district court’s award of attorney’s fees.
Federal Rule of Civil Procedure 37(b)(2) provides a district judge authority
to dismiss an action for a party’s failure to comply with an order to provide
discovery. In deciding whether to dismiss for failure to comply with a court’s
order, we have identified five factors which the district court must weigh: “‘(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 the defendants; (4) the public policy
favoring disposition of cases on their merits; and (5) the availability of less drastic
sanctions.’” Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987)
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Actually, King’s “motion to reopen case” does not contain a motion at all.
Apparently, King’s counsel failed to save the motion on his computer, and
therefore the “motion” filed was only the proposed order on his motion. King
failed to correct that mistake until he filed his reply brief, and even then his reply
consisted of only two pages without a single citation to authority supporting his
request to reopen his case.
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(quoting Thompson v. Hous. Auth. of Los Angeles, 782 F.2d 829, 832 (9th Cir.),
cert. denied 479 U.S. 829 (1986)). We review a dismissal for failure to comply
with the court’s orders for an abuse of discretion, and “we will overturn a dismissal
sanction only if we have a definite and firm conviction that it was clearly outside
the acceptable range of sanctions.” Id. “‘Where the drastic sanctions of dismissal
or default are imposed, however, the range of discretion is narrowed and the losing
party’s non-compliance must be due to willfulness, fault, or bad faith.’” Henry v.
Gill Indus., Inc., 983 F.2d 943, 946 (9th Cir. 1993) (quoting Fjelstad v. Am. Honda
Motor Co., 762 F.2d 1334, 1337 (9th Cir. 1985)).
The district court weighed each of the Malone factors in considering ASC’s
motion to dismiss, and concluded that “less drastic sanctions” should be imposed.
It ordered King to provide discovery responses within seven days, pay ASC’s fees
for bringing the motion, and warned King that failure to comply with this order
“may result in the dismissal of this action.” After King failed to comply with this
order, the court dismissed the action. King cites no authority that would support
the proposition that the court abused its discretion in dismissing the action after he
was sanctioned for prior failures to comply with discovery obligations and the
court’s orders, and after he was expressly warned that the failure to comply with
the court’s third order may lead to dismissal. See Henry v. Gill Indus., Inc., 983
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F.2d at 948 (finding dismissal proper after party failed to comply with orders
following imposition of lesser sanctions). Nor could he. “[D]isobedient conduct
not shown to be outside the control of the litigant is all that is required to
demonstrate willfulness, bad faith, or fault.” Id. (internal quotation marks
omitted). King’s various excuses fail to demonstrate that circumstances outside of
his control led to his repeated disobedient conduct. The district court did not abuse
its discretion.
King’s primary argument in this appeal is that it is unfair to use his counsel’s
mistakes against him. We have dealt with this concern before: “In assessing the
consequences of our decision upon Appellant as distinguished from counsel, it
must be remembered that Appellant ‘voluntarily chose [his attorney] as his
representative in the action, and he cannot now avoid the consequences of the acts
or omissions of [his] freely selected agent.’” United Artists Corp. v. La Cage Aux
Folles, Inc., 771 F.2d 1265, 1271 (9th Cir. 1985) (quoting Chism v. Nat. Heritage
Life Ins. Co., 637 F.2d 1328, 1332 (9th Cir. 1981)) (abrogated on other grounds in
Mt. Graham Red Squirrel v. Madigan, 954 F.2d 1441, 1462 (9th Cir. 1992)).
King next contends that the award of attorney’s fees should be reversed.
However, the federal rules provide that “in addition to” dismissing the action for
failure to comply with a discovery order, “the court must order the disobedient
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party, the attorney advising that party, or both, to pay the reasonable expenses,
including attorney’s fees” absent a showing that the failure was “substantially
justified or other circumstances make an award of expenses unjust.” Fed. R. Civ.
P. 37(b)(2)(C) (emphasis added). King argues that technical failures of his
attorney’s office equipment and employees failing to do their jobs are to blame for
his failure to answer the orders. However, these excuses are not the kind of
substantial justification that would render the district court’s order an abuse of
discretion. To the contrary, the modest award of $2,190 in attorney’s fees, which
were properly limited to the time spent on the motion to dismiss, is not “unjust.”
King had nine months to respond to discovery. The multiple failures can’t all be
someone else’s fault. The judgement of the district court is AFFIRMED.
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