Unpublished Disposition, 902 F.2d 39 (9th Cir. 1990)

MEMORANDUM^** 

Richard K. Goodman appeals the district court's dismissal of his 42 U.S.C. § 1983 action under Fed. R. Civ. P. 37(b) (2) (C) for failure to comply with four discovery requests to appear for a medical examination. We review the imposition of discovery sanctions under Rule 37 for an abuse of discretion. Fjelstad v. American Honda Motor Corp., 762 F.2d 1334, 1337 (9th Cir. 1985). We vacate and remand.

Dismissal under Rule 37(b) is appropriate only for failure to comply with a court order compelling discovery. Fed. R. Civ. P. 37(b); see Fjelstad, 762 F.2d at 1339. Because the sanction of dismissal is such a harsh penalty, the district court must weigh five factors before imposing dismissal: (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. Malone v. United States Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987), cert. denied, 109 S. Ct. 59 (1988). If the district court does not explicitly consider these factors, we review the entire record to determine whether the order of dismissal was an abuse of discretion. Id.

Here, the public's interest in expeditious resolution of litigation, the court's need to manage its docket, and the prejudice to the defendants from Goodman's repeated failure to attend scheduled medical exams all support the district court's order of dismissal. See Mallone, 833 F.2d at 130. Nevertheless, we find that equitable considerations warrant vacation of the district court's order. A medical examination finally was conducted four days before the district court ordered dismissal but after the motion for dismissal was filed with the court. If the district court had been aware that the examination had been conducted, it might have been persuaded not to dismiss the case. Furthermore, no trial date had been set, so the impact on the court's need to manage its docket was lessened after Goodman finally complied with the defendants' discovery requests. See id. Given that the parties had completed all discovery except this medical examination, which went to the issue of damages, not liability, and given the public's interest in having cases decided on their merits, we conclude that the order of dismissal should be vacated. Id.

VACATED and REMANDED.