Unpublished Disposition, 843 F.2d 501 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 843 F.2d 501 (9th Cir. 1988)

Forrest P. BROWN, Plaintiff-Appellant/Cross-Appellee,v.The BOEING COMPANY, Defendant-Appellee/Cross-Appellant.

Nos. 86-3789, 86-3848.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 3, 1988.* Decided March 28, 1988.

Before JAMES R. BROWNING, Chief Judge, NORRIS and O'SCANNLAIN, Circuit Judges.


MEMORANDUM** 

Brown, a black male, was employed by Boeing as a shear operator. Brown was fired by Boeing for fighting with a co-employee. After the EEOC declined to pursue his claim, Brown brought this suit in Washington state court, alleging violations of state law (RCW 49.60.030, .180, .210) and Title VII, 42 U.S.C. § 1981. Brown's primary contention is that Boeing's policy to discharge employees who engage in fighting is discriminatorily enforced.

Boeing removed the action to federal court. The court entered judgment for Boeing following a bench trial, but denied Boeing's motion for attorney's fees. Both parties appeal. We affirm.

Brown complains that Boeing committed fraud upon the court by supplying factually erroneous information to the EEOC. Boeing correctly notes that fraud claims should be raised first before the district court. See Fed. R. Civ. P. 60(b) (3). In any event, the claim is meritless. Any inaccuracy in the EEOC findings would be irrelevant since the trial of the facts in this proceeding was de novo. Similarly, any error in the preparation of the pretrial order was harmless since the order was simply an aid to the court.

Brown's motion to compel discovery was also properly denied. It was filed two weeks after discovery had been completed and was therefore untimely. The district court's other discovery rulings were not an abuse of its discretion. See Sorosky v. Burroughs Corp., 826 F.2d 794, 805 (9th Cir. 1987).

After responsive pleadings had been filed, Brown moved to amend his complaint by adding parties, a Sec. 1983 and a conspiracy count, a claim for punitive damages, and a jury demand. It was not an abuse of discretion to deny the motion. See Poling v. Morgan, 829 F.2d 882, 886 (9th Cir. 1987); Durham v. Kelly, 810 F.2d 1500, 1506 (9th Cir. 1987). The motion was made almost two years after the complaint was filed, discovery was complete, the trial was pending, and allowing the amendments would have required additional discovery and further delays.

It was not an abuse of discretion to deny Boeing's motion for attorney's fees under 42 U.S.C. § 1988. See Forsberg v. Pacific Northwest Bell Telephone Co., No. 86-4054, slip op. at 1462 (9th Cir. Feb. 8, 1988). A court may award fees to a prevailing defendant only when the lawsuit is "frivolous, unreasonable or without foundation," a standard strictly applied in cases such as this involving pro se plaintiffs. See Christiansburg Garment Co. v. Equal Employment Opportunity Comm'n, 434 U.S. 412, 421 (1978). The record supports the district court's conclusion that Brown's claim was not frivolous. We also deny Boeing's motion for attorney's fees on appeal.

AFFIRMED.

 *

This panel unanimously agrees that this case is appropriate for submission without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

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

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