Joel Warne v. City and County of S.F. ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 10 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOEL JENNINGS WARNE, No. 18-15974
Plaintiff-Appellant, D.C. No. 4:16-cv-06773-DMR
v.
MEMORANDUM*
CITY AND COUNTY OF SAN
FRANCISCO; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Donna M. Ryu, Magistrate Judge, Presiding**
Submitted March 3, 2020***
Before: MURGUIA, CHRISTEN, and BADE, Circuit Judges.
Joel Jennings Warne appeals pro se from the district court’s judgment
dismissing as a discovery sanction his action alleging federal and state law claims.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c); Roell v. Withrow, 538 U.S. 580, 590 (2003) (consent to proceed
before a magistrate judge may be implied by a party’s conduct during litigation).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of
discretion a dismissal under Federal Rule of Civil Procedure 37. Valley Eng’rs
Inc. v. Elec. Eng’g Co., 158 F.3d 1051, 1052 (9th Cir. 1998). We affirm.
The district court did not abuse its discretion by dismissing Warne’s action
because Warne failed to appear for his scheduled in-person deposition despite
multiple warnings that his failure to appear would result in dismissal. See id. at
1056-57 (factors to be considered before dismissing under Rule 37(b)).
We reject as without merit Warne’s contentions regarding judicial bias or
misconduct, or the district court’s discovery-related rulings.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or documents and facts not presented to the district court. See
Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009); United States v. Elias,
921 F.2d 870, 874 (9th Cir. 1990).
All pending motions and requests are denied.
AFFIRMED.
2 18-15974