Nostalgia Network, Inc. v. Rayle

ORDER²

The district judge ordered that the defendant’s answer be stricken and default entered because the defendant failed to appear for a settlement conference and then did not respond to an order to show cause in writing why his answer should not be stricken and default entered. The District Court then ordered a default judgment against the defendant.

A court may not strike an answer and issue a default judgment to punish a contempt of court unrelated to the merits of the case. See Hovey v. Elliot, 167 U.S. 409, 413-14, 17 S.Ct. 841, 42 L.Ed. 215 (1897); Phoceene Sous-Marine, S.A. v. U.S. Phosmarine, Inc., 682 F.2d 802, 806 (9th Cir.1982). However, when the misconduct of a party interferes with the production of evidence, default judgment is proper. Hammond Packing Co. v. Arkansas, 212 U.S. 322, 350-51, 29 S.Ct. 370, 53 L.Ed. 530 (1909).

The case is remanded to the District Court to reevaluate its order and determine whether or not the defendant acted in a manner which permits a default judgment.

All further appeals in this case will be assigned to this panel for determination.

Remanded for further proceedings.

2 . This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.