Unpublished Disposition, 844 F.2d 792 (9th Cir. 1986)

MEMORANDUM^** 

Apolonio Pastrana appeals pro se the district court's dismissal of his employment discrimination claim for his failure to file a joint status report. He also appeals the district court's decision to vacate an order of default against Puget Sound Naval Shipyard. We reverse the dismissal of Pastrana's suit, but we affirm the decision to vacate the order of default.

* Pastrana, a naturalized United States citizen of Filipino ancestry, applied for employment with Puget Sound Naval Shipyard. Other applicants were hired. Pastrana filed a complaint with the Navy alleging discrimination on the basis of his nationality. The Navy found no discrimination; in October of 1984 the Equal Employment Opportunity Commission (EEOC) affirmed the Navy's finding.

In December of 1984 Pastrana submitted to the district court the final decision of the EEOC. He wrote "To: Any Judge" at the top of the cover letter attached to the EEOC decision. The district court construed Pastrana's filing as a complaint.

On June 25, 1985 Pastrana filed a motion for entry of default under Fed. R. Civ. P. 55(a) against Puget Sound Naval Shipyard, alleging that the Shipyard had failed to plead or defend before the district court. The district court entered default against the Shipyard on August 16, 1985. The government moved to vacate the entry of default on the ground that Pastrana had "failed to file a complaint or cause of action upon which relief may be granted." The district court vacated the order of default for good cause shown.¹ 

After disposing of various motions by the parties, the district court, on July 3, 1986, ordered the parties to file a joint status report within 30 days. On August 4, 1986 the United States Attorney notified the court that he was unable to file a joint status report because Pastrana had failed to send a promised draft report to which the government could respond. The court sent Pastrana a letter on August 28, 1986, giving him ten more days in which to file the joint status report. On October 14, 1986 the district court dismissed Pastrana's action because of his failure to file the joint status report. Pastrana timely appeals.

II

The district court's dismissal of an action for failure to comply with a court order or for lack of prosecution is reviewed for an abuse of discretion. Thompson v. Housing Authority of the City of Los Angeles, 782 F.2d 829, 831-32 (9th Cir.), cert. denied, 107 S. Ct. 112 (1986) (failure to comply with local rules and court order); Ash v. Cvetkov, 739 F.2d 493, 495 (9th Cir. 1984), cert. denied, 470 U.S. 1007 (1985) (lack of prosecution). The district court has the inherent power to dismiss an action for failure to comply with a court order. Thompson, 782 F.2d at 831. Because dismissal is such a severe sanction, however, the district court should weigh various factors before dismissing the action:

[T]he court's need to manage its docket, the public interest in expeditious resolution of litigation, and the risk of prejudice to the defendants against the policy favoring disposition of cases on their merits, and the availability of less drastic sanction.

Ash, 739 F.2d at 496. In addition, before dismissing a case the court must warn the plaintiff that he or she is risking dismissal if the order is not complied with, and the court must consider all reasonable alternatives to dismissal with prejudice. See Franklin v. Murphy, 745 F.2d 1221, 1233 (9th Cir. 1984); Thompson, 782 F.2d at 831-32; Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986).

The district court dismissed Pastrana's action with prejudice. See Fed. R. Civ. P. 41(b). The record does not indicate that the district court considered any alternatives to dismissal, aside from giving Pastrana ten extra days. Further, the record does not reflect that the court notified Pastrana that he faced dismissal of the case unless he complied with the order. This failure to notify takes on added importance considering that the district court's dismissal was filed on October 14, 1986, and Pastrana's notice of appeal was filed October 16, 1986. Given Pastrana's promptness in appealing, a warning from the court might have moved Pastrana to comply with the order or at least to notify the court of any problems he was having in complying. Under the circumstances, the district court abused its discretion in dismissing Pastrana's action with prejudice without warning him and without considering other alternatives. Franklin, 745 F.2d at 1232.

III

A district court's decision on a motion to set aside an entry of default is reviewed for an abuse of discretion; factual findings are reviewed for clear error. See Meadows v. Dominican Republic, 817 F.2d 517, 521 (9th Cir.), cert. denied, 108 S. Ct. 486 (1987); Mendoza v. Wight Vineyard Management, 783 F.2d 941, 945 (9th Cir. 1986) (per curiam). An entry of default may be set aside for good cause. Fed. R. Civ. P. 55(c). The district court's discretion is especially broad in the context of setting aside an entry of default; it will not be reversed unless the court was clearly wrong in its determination of good cause. Mendoza, 783 F.2d at 945.

The government in a motion to vacate the order of default explained that it had not filed a notice of appearance or answer because Pastrana had not filed a complaint to which the government could respond. Pastrana initially submitted a copy of the EEOC final decision, with "To: Any Judge" written on it, to the district court in December 1984. The case was referred to a magistrate who construed the document as a complaint, granted Pastrana in forma pauperis status, and directed that a summons be issued. On April 1, 1985 the Office of the United States Attorney for Western Washington was served a summons with the final decision of the EEOC attached. Counsel for the government has stated in an affidavit that the government asked the district court clerk's office if there was a complaint the government could respond to. There is no evidence that Pastrana filed any other document in December 1984 except the EEOC final decision, a "consent," and an affidavit requesting in forma pauperis status.

We have given an especially liberal construction to what constitutes a pleading in Title VII cases. Rice v. Hamilton Air Force Base Commissary, 720 F.2d 1082, 1083-85 (9th Cir. 1983). In filing the EEOC decision and the request for in forma pauperis status, Pastrana did enough to initiate a civil action. See id. (the filing of an EEOC right-to-sue letter and a request for appointment of counsel within jurisdictional time limit was the "filing of a civil action" for statute of limitation purposes).

While Pastrana's "complaint" was sufficient to initiate an action, it was not something the government could readily respond to. The government apparently did not realize that the documents filed by Pastrana were an attempt to file a claim. Under the circumstances, the government showed good cause for its inaction and the district court did not abuse its discretion in vacating the default order.

IV

As detailed in Rice v. Hamilton Air Force Base, 720 F.2d at 1083-1085, a plaintiff in a discrimination suit against the government must abide by the jurisdictional requirement of 42 U.S.C. § 2000e-16(c). This requirement is that the plaintiff must sue within thirty days of receiving notice of the EEOC's decision. The record does not permit us to conclude one way or the other whether Pastrana sued within thirty days. The district court should address this jurisdictional issue immediately upon remand.

Also, we note that the district court issued an order stating that Pastrana's initial filing did not comply with Federal Rule of Civil Procedure 8(a). This order did not end the case, however. The district court issued this order only after Pastrana had made another filing on September 16, 1985. Viewed as an amendment to Pastrana's complaint, the filing of September 16 would relate back to the date of his original pleading. See Fed. R. Civ. P. 15(c). The district court has since ruled that Pastrana's filing of September 16 is a complaint under Federal Rule 3 that adequately serves the purposes of Federal Rule 8(a). See Order of June 30, 1986.

V

We affirm the district court's decision to vacate the order of default against the Puget Sound Naval Shipyard. We reverse the district court's dismissal of Pastrana's suit for failing to file a joint status report, and we remand for further proceedings consistent with our disposition.