Unpublished Disposition, 872 F.2d 429 (9th Cir. 1986)

MEMORANDUM^* 

Appellant Joseph P. Manzo appeals pro se the District Court's grant of summary judgment for appellee Daniel, Mann, Johnson, and Mendenhall (hereinafter "DMJM") on Manzo's claim of retaliatory discharge against DMJM. Manzo, formerly employed as a project engineer by DMJM, had argued to the District Court that DMJM fired him on March 5, 1986, in retaliation for Manzo's March 3 request for long-term disability benefits provided by a DMJM-sponsored ERISA plan. DMJM contended that it terminated Manzo on February 28, 1986, for unsatisfactory performance. On appeal, Manzo contends that the district judge and the magistrate abused their discretion in making rulings relating to the purported denial of his discovery requests, the denial of his motions to strike DMJM's answer, and the grant of summary judgment in favor of DMJM. We affirm.

STANDARD OF REVIEW

Rulings on motions for summary judgment are normally reviewed de novo. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986) (citing Lojek v. Thomas, 716 F.2d 675, 677 (9th Cir. 1983)). However, most of Manzo's claims are based on the magistrate's and district judge's pre-trial rulings. The panel reviews those claims for abuse of discretion. See, e.g., Hatch v. Reliance Insurance Co., 758 F.2d 409, 416 (9th Cir. 1985), cert. denied, 474 U.S. 1021 (1985) (rulings concerning discovery are reviewed for abuse of discretion). Furthermore, because the district judge is entitled to wide latitude in making his or her rulings, only those errors prejudicial to Manzo are cause for reversal. See Fed. R. Civ. P. 61; 28 U.S.C. § 2111 (only serious errors that affect "the substantial rights of the parties" are reversible).

DISCUSSION

Manzo first contends that the district judge abused his discretion by denying Manzo's motion for "advice from counsel,"¹  and that this in turn hindered Manzo's ability to conduct adequate discovery to oppose DMJM's motion for summary judgment. However, as this was a civil case, the judge had no obligation to assist Manzo in obtaining counsel. Furthermore, the District Court found that Manzo was "well aware" of his burden in opposing DMJM's summary judgment motion, "notwithstanding his pro se status," and noted that Manzo had filed a substantial number of exhibits, a lengthy memorandum of points and authorities, and numerous other pleadings. These findings, in combination with the suspect timing of Manzo's request--after filing his opposition to DMJM's summary judgment motion and two of three hearings on the motion--suggest no abuse of discretion in denying Manzo's request.

Manzo argues that the district judge abused his discretion by staying discovery because the stay prejudiced Manzo's ability to demonstrate the existence of a genuine issue of fact. This contention is meritless. As the district court specifically found, Manzo enjoyed "more than ample discovery." Indeed, Manzo was even allowed to use discovery from related Los Angeles Superior Court and Department of Labor cases in the present action, and was permitted wide latitude in questioning DMJM's witnesses and declarants.

Manzo's contention that the magistrate abused his discretion by issuing protective orders must fail as well. Actually, it is unclear to what orders Manzo is referring. In any event, a judge has the authority to issue protective orders when considering an overly broad motion to compel discovery. See Herbert v. Lando, 441 U.S. 153, 177 (1979) (The requirement of Rule 26(b) (1) that the material sought in discovery be 'relevant' should be firmly applied, and the district courts should not neglect their power to restrict discovery where 'justice requires [protection for] a party or person from annoyance, embarrassment, oppression, or undue burden or expense ...' Rule 26(c). With this authority at hand, judges should not hesitate to exercise appropriate control over the discovery process.")

The magistrate's alleged failure to comply with Fed. R. Civ. P. 72,²  local rules of court, and magistrate's rules³  do not entitle Manzo to a reversal of the summary judgment. For purposes of compliance with the order, the oral order was sufficient; the delay in issuance of the final written order worked no prejudice upon Manzo. Cf. Henry v. Sneiders, 490 F.2d 315, 318 (9th Cir. 1974), cert. denied, 419 U.S. 832 (1974) ("Where oral proceedings unequivocally give a litigant notice that certain documents are to be produced, the absence of a written order does not preclude the entry of a default judgment for failure to comply.") The remainder of Manzo's technical objections also fail due to his inability to show resulting prejudice.

No abuse of discretion is evident in the district judge's denial of Manzo's motions for a pre-trial conference. The only such motion not withdrawn by Manzo was filed after DMJM's motion was already under submission. By granting summary judgment, Manzo's motion for a pre-trial conference became moot. We find no abuse of discretion in the district judge's rulings.

Manzo's argument that the district judge abused his discretion by quashing rather than enforcing subpoenas for documents in DMJM's possession is frivolous. Manzo himself admitted that the subpoenas were not quashed. CR 360 at 4, 368 at 13.

No abuse of discretion is apparent in the district judge's denial of Manzo's motion to dismiss DMJM's answer on the basis of fraud upon the court in failing to comply with discovery. Manzo's evidence of possible fraud did not rise to the level of "clear and convincing" as needed to strike DMJM's answer. See England v. Doyle, 281 F.2d 304, 309-10 (9th Cir. 1960). His scintilla of evidence was insufficient to rebut DMJM's "overwhelming" evidence.

Manzo's contention that the district judge made numerous clearly erroneous findings of fact is unsupported. Eight people who were involved in Manzo's termination did file declarations supporting the fact that Manzo was terminated on February 28, the date DMJM asserts Manzo was fired. CR 260 at 36b-66. Manzo presents no meaningful evidence that the judge's other findings were erroneous.

Manzo asserts that the district judge made numerous errors of law. The district judge's first alleged error was in admitting DMJM's computerized payroll documents into evidence. But computer printouts are admissible as business records if the proponent lays a proper foundation. U.S. v. Catabran, 836 F.2d 453, 457 (9th Cir. 1988). DMJM, by declaration, established such a foundation. (CR 260 at 51-56) Manzo's second major argument on this point is that, because his "state of mind" as to the date of discharge is a hearsay exception, evidence of his "surprise" at learning of his termination was sufficient to rebut DMJM's evidence, and thereby avert summary judgment. Assuming arguendo that Manzo's surprise is indeed a hearsay exception, this "evidence" hardly rebuts the mass of evidence compiled by DMJM that Manzo was indeed terminated on February 28. Manzo has failed to set forth specific facts to show that there was a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 2510 (1986). Manzo also fails entirely to provide evidence that DMJM terminated him with intent to retaliate--a crucial element of his claim.

Manzo's argument that the district judge abused his discretion by denying Manzo's requests for a continuance fails as well. The motions Manzo seems to be referring to were not timely filed, and therefore failed to meet the criteria set out in Visa International Service Association v. Bankcard Holders of America, et al., 784 F.2d 1472, 1475 (9th Cir. 1986). Again, Manzo was able to conduct thorough discovery for over one year, and enjoyed ample time to prepare his opposition to DMJM's motion.

Manzo's contention that the district judge abused his discretion by mooting Manzo's pending discovery motions by filing an order for summary judgment on the same date the amended discovery order was filed is meritless. Manzo's motions were filed after the court had taken DMJM's summary judgment motion under submission. (CR 370, 375, 377, 378, 387)

Summary judgment was not inappropriate, as Manzo asserts, simply because Manzo alleged that DMJM harbored unconstitutional motivations in dismissing him. Regardless of DMJM's alleged motivations, summary judgment is appropriate unless Manzo established a prima facie case of retaliatory discharge, or presented evidence that DMJM's legitimate reasons for discharge are mere pretext. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 805-06 (1973). Manzo has come forward with no such evidence.

Manzo's argument that DMJM improperly terminated him without notice is unpersuasive. Manzo admits that he was terminated in accordance with California's "at-will" statute, Cal.Lab.Code Sec. 2922. Thus, he had no property interest in continued employment.

Manzo asserts that the district judge based his ruling on grounds not urged by DMJM when the judge stated that DMJM had not denied liability for Manzo's pre-February 28 ERISA claims. Manzo argues that DMJM had asserted that these claims were time-barred. This contention is without merit. DMJM did not deny liability for the claims in question because Manzo had not filed a medical plan claim form. In its summary judgment motion, DMJM raised both this objection and an objection that the claims were time-barred.

Finally, no abuse of discretion is apparent in the district judge's denial of Manzo's motions for a new trial under Fed. R. Civ. P. 59 or, in the alternative, for additional findings under Fed. R. Civ. P. 52. Manzo has had ample opportunity for discovery. As these rules are discretionary, and Manzo presents no evidence that the judge abused his discretion, Manzo's contentions furnish no basis for reversal.

Manzo presents several other arguments that he asserts compel reversal. These include contentions that the underlying data relating to the substance of computer printouts should have been made available to him; that summary judgment is improper in that DMJM filed only affidavits in support of its motion; that DMJM's declarations were hearsay; and that the district judge improperly made a finding of fact. These arguments either have no basis in fact, are misstatements of the law, or are unsupported and hence unpersuasive.

AFFIRMED.