Unpublished Disposition, 880 F.2d 1323 (9th Cir. 1988)

MEMORANDUM^** 

Appellant filed this pro se action under 42 U.S.C. § 1983, charging the City of Flagstaff, Arizona and various city employees with a variety of wrongs arising from his arrest, detention and prosecution. On April 7, 1988, the district court dismissed the complaint for violation of a local rule and because the statute of limitations had run. We reverse and remand.

* The district court dismissed appellant's complaint partly because appellant violated Local Rule 11(i).¹  Because the rule does not conflict with the federal rules, it is authorized by 28 U.S.C. § 2071 and Fed. R. Civ. P. 83. See Transamerica Corp. v. Transamerica Bancgrowth Corp., 627 F.2d 963, 965-66 (9th Cir. 1980). The issue then is whether dismissal constituted an abuse of discretion on this record. Id. at 966.

Although district courts have inherent authority to dismiss an action for noncompliance with rules of procedure, they may do so only in "extreme circumstances." Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986) (per curiam); accord United States ex rel. Wiltec Guam, Inc. v. Kahaluu Constr. Co., 857 F.2d 600, 603 (9th Cir. 1988). " [I]n order to warrant imposition of th [is] severe sanction [ ], the violation(s) must be due to willfulness, bad faith, or fault of the party." Id. (internal quotation omitted).

We evaluate dismissal in light of the following factors: "(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits and (5) the availability of less drastic sanctions." Thompson, 782 F.2d at 831. Because the district court made no findings on these factors, we "review the record independently to determine whether the sanction was an abuse of discretion." Kahaluu, 857 F.2d at 603.

The first two factors weigh in favor of dismissal, but not heavily because the case was proceeding "in a timely fashion" and appellant's conduct threatened no "serious disruptions of the district court's trial schedule." Id. The third factor is neutral because appellant's failure to oppose the motion to dismiss did not seriously inconvenience appellees or impair their ability to go to trial. Id. at 604. The fourth factor weighs against dismissal, as does the fifth. The district court did not weigh alternative sanctions, nor did it warn appellant of the possibility of dismissal. Id. at 604-05.² 

Because the Thompson factors do not support dismissal for noncompliance with Local Rule 11(i), we reach the statute of limitations issue.

II

When "state law provides multiple statutes of limitations for personal injury actions, courts considering Sec. 1983 claims should borrow the general or residual statute for personal injury actions." Owens v. Okure, 109 S. Ct. 573, 582 (1989) (footnote omitted). In Arizona, Ariz.Rev.Stat. Sec. 12-542(1) (Supp.1988) is the general statute for personal injuries. Thus, that statute's two-year limit controls this action.³ 

Although the clerk's office did not "file" the complaint until Friday, November 6, 1987, appellant "lodged" it in the district court on Tuesday, November 3, 1987. November 3, the date the clerk physically received the complaint, controls for statute of limitations purposes. Cooper v. City of Ashland, 871 F.2d 104, 105 (9th Cir. 1989); see also 4 C. Wright & A. Miller, Federal Practice and Procedure Sec. 1052 (2d ed. 1987) ("Filing a complaint requires nothing more than delivery to a court officer authorized to receive it....").

It is not clear from the record which, if any, of appellant's claims are barred using the November 3, 1987 date. We therefore remand for further proceedings in accordance with this opinion.

REVERSED and REMANDED for further proceedings.