Unpublished Disposition, 883 F.2d 1023 (9th Cir. 1987)

No. 87-6486.

United States Court of Appeals, Ninth Circuit.

Before FLETCHER and KOZINSKI, Circuit Judges, and D. LOWELL JENSEN,^**  District Judge.

MEMORANDUM^*** 

Appellant appeals from the decision of the district court dismissing his action under Federal Rule of Civil Procedure 37(b) as a sanction for failure to comply with a court order regarding discovery. We affirm.

FACTS AND PROCEEDINGS BELOW

On June 11, 1986, appellant filed an action in the Central District of California alleging that defendant had labeled him as a Nazi war criminal and offered a $1,000,000.00 reward for his capture. Appellant's amended complaint contains causes of action for racketeering, assault, false imprisonment, invasion of privacy and defamation.

On August 15, 1986, appellee noticed appellant's deposition pursuant to Federal Rule of Civil Procedure 30 for September 29, 1986, in Los Angeles, California. Appellant failed to appear for the noticed deposition and filed an "objection to deposition" on September 29, 1986.

On October 1, 1986, appellee re-noticed appellant's deposition for November 5, 1986 in Los Angeles. Counsel for appellee received a mailgram from appellant on November 4 stating that he would not appear for his deposition the following day. Appellant did not appear for the November 5 deposition.

Appellee filed a motion to dismiss appellant's complaint under Rule 37(d) of the Federal Rules of Civil Procedure for failure to attend the November 5 deposition. The district court denied the motion by order dated January 13, 1987, but directed appellant to appear for a deposition in Los Angeles within sixty days of receiving notice of a deposition by express mail. The order cautioned appellant that if he failed to appear without first obtaining a protective order, his action would be dismissed.

On January 15, 1987, appellee re-noticed appellant's deposition and served appellant with the notice and the district court's January 13 order. The deposition was noticed for April 2, 1987. In response, appellant filed a motion for a protective order under Rule 26(c) of the Federal Rules of Civil Procedure requesting that the deposition be deferred until ten days before trial, or in the alternative, that the deposition be conducted by written interrogatories.

On June 5, 1987, the United States magistrate denied appellant's motion for a protective order. The magistrate ruled that: (1) insufficient evidence exists to issue a protective order based on appellant's allegations of poor health; (2) sufficient evidence has been presented to support a finding that appellant cannot afford to travel to Los Angeles; (3) appellee will pay for appellant's round trip airfare from Spain to California; (4) written interrogatories will not suffice in this case; and (5) it is too complicated, expensive and uncertain to conduct the deposition in Spain. The magistrate set August 17, 1987, as the new deposition date. Appellee sent appellant a round trip airline ticket from Spain to Los Angeles by express mail on June 10, 1987.

Appellant failed to appear for his deposition on August 17, 1987. Appellee moved for default judgment on August 19, 1987. Appellant did not oppose the motion. The district court dismissed appellant's action with prejudice under Rule 37(b) on September 10, 1987. Appellant filed a notice of appeal on October 9, 1987.

DISCUSSION

Appellant contends that dismissal of his action under Rule 37(b) for failure to comply with the magistrate's and district court's discovery orders was improper.

The sanctions available under Rule 37(b) for failure to comply with a court order regarding discovery include "dismissing the action or proceeding or any part thereof." Fed. R. Civ. P. 37(b) (2) (C). Therefore, the district court had statutory authority to dismiss appellant's action as a sanction for failure to appear for his deposition.

This Court may only overrule the district court's dismissal of plaintiff's action under Rule 37(b) if the decision " 'exceeded the limits of its discretion.' " United States for the Use and Benefit of Wiltec Guam, Inc. v. Kahaluu Constr. Co., Inc., 857 F.2d 600, 603 (9th Cir. 1988) (quoting Halaco Engineering Co. v. Costle, 843 F.2d 376, 379 (9th Cir. 1988)); Wyle v. R.J. Reynolds Indus., Inc., 709 F.2d 585, 591 (9th Cir. 1983).

The standard for determining whether a dismissal is warranted under Rule 37(b) is set forth in Wiltec Guam, Inc., 857 F.2d at 600; see also Malone v. United States Postal Service, 833 F.2d 128, 130 (9th Cir. 1987); Thompson v. Housing Authority, 782 F.2d 829, 831-32 (9th Cir.), cert. denied, 479 U.S. 829 (1986). In Wiltec, this Court stated that " [d]ismissal and default judgment are authorized only in 'extreme circumstances.' " Wiltec, 857 F.2d at 603 (quoting Fjelstad v. American Honda Motor Co., Inc., 762 F.2d 1334, 1338 (9th Cir. 1985)). To merit such sanctions, the discovery violation must be due to " 'willfulness, bad faith or fault of the party.' " Wiltec, 857 F.2d at 603 (quoting Wyle, 709 F.2d at 589).

It is clear that appellant's failure to appear for his deposition in Los Angeles was a willful act. This issue is not disputed as appellant states that he refuses to appear for an oral deposition in Los Angeles more than ten days in advance of trial.

In addition to making a finding of "willfulness, bad faith or fault of the party," a court must also consider the following five factors in "determining whether to dismiss a case as a punitive measure: '(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.' " Wiltec, 857 F.2d at 603 (quoting Malone, 833 F.2d at 130).

In the present case, the first two Wiltec factors, public interest in expeditious resolution of litigation and the court's need to manage its docket, weigh in favor of dismissal of appellant's action. This dispute has taken up a substantial amount of the district court's and magistrate's time. Appellant's deposition was noticed three times. Appellant failed to appear for his deposition on all three occasions, even after being ordered to appear by both the district court and the magistrate. The dispute over appellant's deposition required a total of five written rulings by the magistrate and district court. This case was not proceeding to trial in a timely fashion when the action was dismissed. The action was originally filed on June 11, 1986. The case was not close to going to trial or to a hearing on a motion for summary judgment when it was dismissed in September of 1987.

The third Wiltec factor, prejudice to the defendants, also weighs in favor of dismissal. The inability of appellee to depose appellant impaired its ability "to go to trial" and threatened to "interfere with the rightful decision of the case." Wiltec, 857 F.2d at 604. Without being able to depose appellant, appellee was unable to prepare for trial or a motion for summary judgment on the merits. Appellant would be a crucial witness at trial and without a prior deposition, appellee would not be competently prepared to cross-examine appellant. Appellee would be severely prejudiced if it was forced to rely on a written deposition or on an oral deposition taken ten days before trial. Such prejudice could lead to an improper resolution of the merits of this action.

The fourth Wiltec factor, public policy favoring disposition on the merits, weighs against the dismissal of appellant's action.

The fifth factor, consideration of less drastic sanctions, also weighs in favor of dismissal. This factor requires a court to consider less severe penalties before dismissing an action under Rule 37(b). Wiltec, 857 F.2d at 604-605; Halaco, 843 F.2d at 380; Hamilton v. Neptune Orient Lines, Ltd., 811 F.2d 498, 500 (9th Cir. 1987). "The consideration of less severe penalties must be a reasonable explanation of possible and meaningful alternatives." Malone, 833 F.2d at 132; Anderson v. Air West, Inc., 542 F.2d 522, 525 (9th Cir. 1976). The only exception to this general rule occurs in "exceptional cases, where it is clear that no other alternative would have been reasonable." Wiltec, F.2d at 604; Malone, 833 F.2d at 132. Under this fifth factor, the reviewing court should also look to see if the court below warned of the possibility of dismissal before taking this drastic action. Wiltec, 857 F.2d at 605.

The district court in its January 13 order warned appellant that if he did not appear for a properly noticed deposition or obtain a protective order his action would be dismissed under Rule 37(b). Before dismissing appellant's lawsuit, the district court and magistrate considered alternatives to dismissal including allowing appellant to be deposed in Spain, in the United States ten days prior to trial, or through written interrogatories. The court below rejected these alternatives and informed appellant that he risked having his action dismissed if he failed to appear for his August 17 deposition. Moreover, the magistrate ordered opposing counsel to furnish appellant with an airline ticket to Los Angeles which was provided.

After considering the factors outlined in Wiltec, this Court holds that the district court gave appellant ample opportunity to comply with its orders regarding discovery, acted appropriately under the circumstances and did not "exceed the limits of its discretion" under Rule 37(b) in dismissing appellant's action.

CONCLUSION

A district court may dismiss an action for failure to comply with a court order regarding discovery under Rule 37(b). Such a dismissal order will be reversed only if the lower court "exceeded the limits of its discretion" in dismissing the action. In the present case, the district court acted within the limits of its discretion when dismissing appellant's action for failure to appear at his deposition.

AFFIRMED.