Opinion · Court of Appeals for the Ninth Circuit
Elpidio Oliva v. Louis W. Sullivan, Secretary
958 F.2d 272
- Type
- Opinion
- Court
- Court of Appeals for the Ninth Circuit
- Jurisdiction
- Federal
- Date
- 1992-03-03
- Topic
- general
How later courts describe this case
- concluding the district court’s sua sponte dismissal should be reversed because the trial court failed to warn counsel dismissal was imminent and failed to consider alternative sanctions
- stating that the other factors include the public's interest in expeditious resolution of litigation, the court's need to manage its docket, and whether less drastic sanctions were considered
- finding these 25 two factors “decisive” where a Court sua sponte dismisses for failure to prosecute
- reviewing the district court’s sua sponte dismissal for lack of prosecution
- vacating sua sponte dismissal for failure to prosecute where there was no indication in the record that the district court had considered less drastic sanctions or that the plaintiff was warned of dismissal
- reversing dismissal where district court did not warn plaintiff’s counsel before dismissing case
- “The district judge has an obligation to warn the plaintiff that dismissal is imminent.”
- “District courts have inherent power to control their 22 dockets and may impose sanctions, including dismissal, in the exercise of that discretion.”
Citator
UpLaw has not yet analyzed Elpidio Oliva v. Louis W. Sullivan, Secretary. The absence of a flag is not a finding that it is good law.
- Cited by
- 254 opinions
OLIVA v. SULLIVAN,958 F.2d 272(9th Cir. 1992)
ELPIDIO OLIVA, PLAINTIFF-APPELLANT, v. LOUIS W. SULLIVAN, SECRETARY,
DEFENDANT-APPELLEE.
No. 89-15619.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted January 13, 1992.
Decided March 3, 1992.
Page 273
George C. Stoll, Asst. U.S. Atty., San Francisco, Cal., for defendant-appellee.
Before SNEED, SCHROEDER and T.G. NELSON, Circuit Judges.
[2] Oliva filed this action in district court on October 7, 1986. On that date, the court issued a Procedural Order for Social Security Review Actions ("procedural order"), which required Oliva to file a motion for summary judgment within thirty days of service of the Secretary's answer. On April 3, 1987, Oliva applied for relief from the procedural order, indicating additional causes of action and class action status would be alleged. On April 7, 1987, the court modified the procedural order as follows: "Plaintiffs shall have thirty (30) days to file a stipulation regarding an amended complaint." Oliva filed an amended complaint on May 22, 1987. The Secretary filed an answer to the amended complaint on July 6, 1987. Over a year and a half later, when no action had been taken on Oliva's case, the district court issued an order dismissing the action. The district court stated as its reason for dismissal that pursuant to local rules and order of the court, Oliva should have filed a motion for summary judgment by August 6, 1987, and that no action had been taken on the case since July 6, 1987.
[3] The court filed an order dismissing the action on February 27, 1989. Oliva filed a motion for relief from the order pursuant to Rule 60(b), Fed.R.Civ.P., which the court denied by order dated March 21, 1989. On that same date, the court entered a judgment of dismissal, "[i]n accordance with the Court Order filed February 27, 1989." Oliva's notice of appeal, filed within 60 days of the March 21 judgment, states he appeals "from the judgment of dismissal rendered by the Court on March 21, 1989."
[4] The Secretary argues that Oliva's appeal is solely from the denial of Oliva's Rule 60(b) motion, and not from the underlying dismissal. We disagree. Oliva filed a timely notice of appeal from the March 21 judgment, which is based on the February 27 order of dismissal. Therefore, our review is of the dismissal of the action, not of the decision on the 60(b) motion.CompareFloyd v. Laws,929 F.2d 1390, 1400 (9th Cir. 1991) (appeal of court's denial of Rule 60(b) motion does not bring up the underlying judgment for review).
[5] District courts have inherent power to control their dockets and may impose sanctions, including dismissal, in the exercise of that discretion.Hamilton Copper Steel Corp. v. Primary Steel,Inc.,898 F.2d 1428, 1429 (9th Cir. 1990) (citations omitted). Because dismissal is a harsh penalty, it should be imposed as a sanction only in extreme circumstances.Thompson v. HousingAuthority,782 F.2d 829, 831Page 274(9th Cir.),cert. denied,479 U.S. 829, 107 S.Ct. 112, 93 L.Ed.2d 60 (1986). The district court'ssua spontedismissal of this case for failure to prosecute is reviewed for abuse of discretion.Id.at 832.
[6] Of the factors that our circuit has advised district courts to consider before resorting to the penalty of dismissal,seeThompson,782 F.2d at 831,Hamilton Copper Steel Corp.,898 F.2d at 1430, the two that are decisive in this case are the failure to consider less drastic alternatives and the lack of warning of imminent dismissal of the case. In cases involvingsua spontedismissal of an action, rather than dismissal following a noticed motion under Rule 41(b), Fed.R.Civ.P., there is a closer focus on these two considerations.See HamiltonCopper Steel Corp.,898 F.2d 1428;see also Morris v. MorganStanley Co.,942 F.2d 648, 652 (9th Cir. 1991). Where, as here, the district court does not explicitly consider these factors, we independently review the record to determine whether the order of dismissal was an abuse of discretion.Malone v.United States Postal Serv.,833 F.2d 128, 130 (9th Cir. 1987),cert. denied,488 U.S. 819, 109 S.Ct. 59, 102 L.Ed.2d 37 (1988).
[7] The record before us does not reveal that the district court considered sanctions less drastic than dismissal. 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."United States v.National Medical Enterprises, Inc.,792 F.2d 906, 912 (9th Cir. 1986) (as quoted in bothHamilton Copper Steel Corp.andMalone). While explicit discussion of alternative sanctions is not always necessary,see Malone,833 F.2d at 131-133, this case does not present the egregious circumstances, or the court's use of less drastic measures prior to dismissal, that obviate the need for explicit discussion of alternatives.Id.; see alsoHamilton Copper Steel Corp.,898 F.2d at 1430 (collecting cases).
[8] The failure to consider "less drastic alternatives" is compounded in this case by the lack of warning to Oliva's counsel of the imminent dismissal of the case. The district judge has an obligation to warn the plaintiff that dismissal is imminent.Johnson v. United States Dept. of the Treasury,939 F.2d 820, 825 (9th Cir. 1991);Hamilton v. Neptune Orient Lines, Ltd.,811 F.2d 498, 500 (9th Cir. 1987);Franklin v. Murphy,745 F.2d 1221, 1232 (9th Cir. 1984). Nothing in the record demonstrates that counsel was on notice that the case would be dismissed. "Failure to warn has frequently been a contributing factor in our decisions to reverse orders of dismissal."Malone,833 F.2d at 133.
[9] Here, the public's interest in expeditious resolution of litigation, the court's need to manage its docket, and the possible prejudice to the party suffering delay all support the district court's order of dismissal. We do not condone the dilatory conduct of Oliva's counsel. However, in the absence of indications that alternative sanctions were considered and of warning to counsel that dismissal was imminent, we cannot uphold the district court'ssua spontedismissal of this case.SeeJohnson,939 F.2d at 825;Hamilton Copper Steel Corp.,898 F.2d at 1430-31;Thompson,782 F.2d at 831-32;Franklin,745 F.2d at 1232-34;see also Morris,942 F.2d at 652;Malone,833 F.2d at 131-133;Hamilton,811 F.2d at 500. Moreover, the public policy favoring disposition on the merits weighs against dismissal.Porter v. Martinez,941 F.2d 732, 734 (9th Cir. 1991);Malone,833 F.2d at 130.
[10] REVERSED and REMANDED.
[13] These two are the requirement that the district court explicitly place on the record the fact that it did consider less drastic alternatives and did warn the plaintiff's counsel that dismissal was imminent. These two requirements are not in allPage 275instances treated as requirements but in some cases are treated as factors in a five factor balancing test. Each factor does not have to be present before a district court may dismiss a case for failure to prosecute. For example, inHenderson v. Duncan,779 F.2d 1421, 1425 (9th Cir. 1986), the court applied the balancing test but refused to require one of the factors. The court held: "We cannot find that a lack of prejudice to defendants is determinative."
[14] Similarly, inMalone v. United States Postal Serv.,833 F.2d 128, 132 (9th Cir. 1987),cert. denied,488 U.S. 819, 109 S.Ct. 59, 102 L.Ed.2d 37 (1988), the court affirmed dismissal although the district court failed to consider less drastic sanctions. The court stated: "We have never held that explicit discussion of alternatives isnecessaryfor an order of dismissal to be upheld." Therefore, according toMalone,a district court is never required to discuss alternatives to dismissal.
[15] To transform the balancing test into a set of rigid requirements diminishes a district court's discretion. The district courts are in a superior position to supervise litigants' conduct and to issue appropriate sanctions.See Chismv. National Heritage Life Ins. Co.,637 F.2d 1328, 1332 (9th Cir. 1981). For this reason, the court has repeatedly given deference to district courts, which are best suited to determine when delay in a particular case interferes with docket management and the public interest.Henderson,779 F.2d at 1423;Ash v.Cvetkov,739 F.2d 493, 496 (9th Cir. 1984),cert. denied470 U.S. 1007, 105 S.Ct. 1368, 84 L.Ed.2d 387 (1985).
[16] By elevating two "factors" to "requirements," the court is placing on the shoulders of the district courts an obligation to police the performance of the attorney of the party whose claim is subject to dismissal. That attorney, not the court, should bear the burden of properly performing his duty to his client. The district court should not be compelled to serve as a safety net to protect the client from his attorney. It is true that lawyers are busy and sometimes lose track of the time at which they should act on behalf of a client. District courts are, also, very busy and, even under the view of the majority, are only "secondarily liable" to the party-client. There is little reason to make them nursemaids of lawyers who, as in this case, neglect a client's case from July 6, 1987 to February 27, 1989. Even then the attorney in this case was only aroused from his slumber by the the court's dismissal of his client's cause of action. Was the court precipitous? Must the court have gently touched the nodding lawyer and whispered that he should wake up or his case might be gone before making it vanish from the court's backlog? I think not.
[17] The two factors, now "requirements," appropriately could function as such had the dismissal been attempted between September 1, 1987, and January 1, 1988, or even March 1, 1988. However, as the neglect approaches a year in duration, they should be deemed "factors" only. This would serve to prevent peremptory and arbitrary dismissal without forcing the district court to assume responsibilities of the attorney.
[18] Judges understandably sympathize with both lawyers, for they are of that profession, and clients, for they have served them. However, their primary responsibility is to the court and the people. An inescapable part of that responsibility is to secure justiceexpeditiously.That duty should not be sacrificed, neglected, or impaired by inordinate tolerance of sloppy legal practices or by sympathy for clients abandoned by attorneys who so practice. Those attorneys should be made accountable for their wrongs. Loose rules induce loose practices which, in turn, cause delays and increase the costs of justice.
[19] I would hold that the district court did not abuse its discretion in dismissing the appellant's claim.Page 276