Unpublished Disposition, 889 F.2d 1095 (9th Cir. 1988)

MEMORANDUM^* 

NSN Food and Flavor Development, Inc. (NSN) and Ta Feng (collectively appellants) appeal the district court's decision, following appellants' failure to produce an accountant's report that the court had ordered produced, to dismiss with prejudice appellants' suit against Crown Cork and Seal, Inc. (Crown). Appellants claim that the district court abused its discretion in basing dismissal solely on their failure to produce the accountant's report (the "Ko" report), because their failure was due to inability rather than to willfulness or bad faith. We affirm.

We review a dismissal sanction for abuse of discretion and will not reverse absent a definite and firm conviction that a clear error of judgment was made by the court below. United Artists Corp. v. La Cage Aux Folles, Inc., 771 F.2d 1265, 1270 (9th Cir. 1985).

Appellants contend that the district court based its dismissal solely on their failure to produce an accountant's report which they had previously promised to produce and which the court subsequently ordered them to produce. Appellants argue that dismissal on this basis constituted an abuse of discretion, since their failure to produce the report was due to inability, and not to willfulness, bad faith, or fault.

It is clear from the district court's order, however, that dismissal was not based solely on NSN's failure to produce the accountant's report. Rather, the district court based its dismissal on appellants' lengthy history of failure to comply with discovery, including appellants' previously sanctioned conduct. A court may consider prior conduct that has already been subject to sanction when it is weighing a subsequent sanction motion. Halaco Engineering Co. v. Costle, 843 F.2d 376, 381, n. 2 (9th Cir. 1988).

The record reveals that appellants' initial discovery responses were seriously deficient. Appellants not only failed to produce requested documents, but also failed to answer or provided insufficient answers to a number of interrogatories. The court on January 30, 1986, ordered appellants to produce requested documents and to answer interrogatories. When appellants failed to comply with this order, appellee Crown filed a motion to dismiss on July 31, 1987. At the December 18, 1987 hearing on the motion to dismiss, the court noted appellants' persistent discovery abuse but decided to grant them leniency because of their status as foreign corporations. In its January 12, 1988 order the court thus denied the motion to dismiss but ordered appellants to pay a $28,312.50 sanction for deficient discovery responses. The court further ordered appellants to produce certain documents, including the promised "Ko" report, and to verify the answers to a number of interrogatories. Finally, the court warned that failure to comply with its order would result in dismissal.

Appellants subsequently sought and were granted extensions to comply with the court's order. On March 2, 1988 Crown renewed its motion to dismiss for appellants' failure to comply with the January 12 order. In particular, Crown complained that appellants had failed both to produce the Ko report, and to verify the accuracy of their answers to interrogatories. At the hearing on April 25, 1988, the court again denied the motion to dismiss, and granted appellants further extensions of time to comply with its January 12th order. The court stated that the verification of discovery responses was still inadequate and ordered appellants to supply further verification of discovery responses by May 16. The court then held three more hearings before finally entering its order granting the motion to dismiss on May 25, 1988.

On the basis of this record, we conclude that the district court did not abuse its discretion in ordering the case dismissed. Appellants claim incorrectly that failure to produce the Ko report constituted the court's sole basis for dismissing the suit. A review of the court's two written orders and the transcript of hearings clearly shows that the court based dismissal on the entire history of discovery problems. Moreover, the district court attempted alternative measures before resorting to the sanction of dismissal, and gave numerous warnings of the consequences of noncompliance with its order.

AFFIRMED.