Unpublished Disposition, 925 F.2d 1469 (9th Cir. 1988)

MEMORANDUM^** 

F. Maitland Cuthbertson and Laurette Hern appeal pro se the district court's failure to grant leave to amend their complaint under Fed. R. Civ. P. 15(a) and dismissal of their action under Fed. R. Civ. P. 41(b).¹  We have jurisdiction under 28 U.S.C. 1291, and we review for an abuse of discretion. Hernandez v. Whiting, 881 F.2d 768, 770 (9th Cir. 1989); Mayes v. Leipziger, 729 F.2d 605, 608 (9th Cir. 1984). We vacate and remand.

On October 23, 1983, the plaintiffs, who were represented by counsel in the district court, filed their handicap discrimination and Title VII action in district court. Their action originally was calendared before Judge Ingram, who dismissed their action twice under Fed. R. Civ. P. 12(b) (6) with leave to amend. In his first order entered on February 5, 1985, Judge Ingram dismissed some claims with prejudice and dismissed others with leave to amend. Judge Ingram also limited the scope of any amended complaint to certain claims and certain defendants. After reviewing the second amended complaint, which did not comply with the district court's first order and which added new defendants, Judge Ingram dismissed the action on March 14, 1986 with leave to amend. He reiterated the rulings of his first order, limited the claims and proper defendants, and advised the plaintiffs that they could not raise new claims or add new defendants without seeking leave of the court. The plaintiffs then filed a third amended complaint on July 1, 1986 which raised only the claims allowed by the district court in its first two orders. The plaintiffs then advised the defendants that they planned to seek leave of the court to file a fourth amended complaint raising additional claims against additional defendants. After the parties held a status conference on June 3, 1987, the district court entered an order noting that the plaintiffs were to "notice a motion to amend. No date set." Thereafter, the case was transferred to Judge Williams. On January 25, 1988, the court set up a status conference on March 3, 1988, where the plaintiffs were given until March 18, 1988 to file a motion asking permission to file a fourth amended complaint. The plaintiffs filed their motion and proposed amended complaint on March 18. The government then opposed the motion to amend, stating that the claims raised were identical to the claims raised in the first and second amended complaints. After hearing oral argument, Judge Williams denied leave to amend and dismissed the entire action with prejudice, stating "this has been going on, spinning our wheels, for how long? Years.... [Y]ou filed your amended complaint beyond the time which I authorized it to be filed and, therefore, it was filed late, which, therefore, ... is one of the bases--but not the only basis--for the dismissal."

"We review strictly a district court's exercise of discretion denying leave to amend." Mayes, 729 F.2d at 608 (quotation omitted). Under Fed. R. Civ. P. 15(a), "leave to amend shall be freely granted where the opposing party will not be prejudiced thereby." Richardson v. United States, 841 F.2d 993, 999 (9th Cir. 1988) (quotation omitted), amended by 860 F.2d 357 (9th Cir. 1988).

Under Fed. R. Civ. P. 41(b), an action may be dismissed "for failure of the plaintiff to prosecute or to comply with these rules or any order of court." 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, 488 U.S. 819 (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, Judge Williams apparently thought that the plaintiffs filed their proposed fourth amendment on Monday, March 21, 1988, rather than on Friday, March 18, the deadline set by the court during the March 3 status conference. The docket sheet also states that the plaintiffs' proposed amendment was received on March 21. Nevertheless, the docket sheet also demonstrates that the motion to amend the complaint and brief were received on March 18. Furthermore, the plaintiffs have submitted a copy of their proposed fourth amended complaint stamped by the district court as received on March 18. Apparently due to a printer error, several pages of the plaintiffs' complaint were not submitted with the original filing on March 18, but were slipped under the door to the clerk's office just before 5 p.m. After the clerk's office told them that they did not want to insert the pages, the plaintiffs then delivered an entirely new copy of the complaint to the clerk's office on Monday, March 21. Therefore, it appears that the plaintiffs timely submitted their complaint on March 18, 1988.² 

Here, Judge Ingram limited the claims that the plaintiffs could raise without seeking leave of the court, and the plaintiffs essentially complied with his order in their third amended complaint. The plaintiffs also complied with Judge Ingram's order by seeking leave of the court to bring additional claims. It may have been within Judge Williams' discretion to deny the plaintiffs leave to amend to add these additional claims. See Mayes, 729 F.2d at 608. In dismissing the action, however, Judge Williams apparently was influenced by his belief that the proposed amended complaint was not timely filed. Given that the complaint was timely filed, we vacate the district court's order denying leave to file a fourth amended complaint to give the district court an opportunity to determine whether the plaintiffs should be allowed to file their amended complaint. Moreover, the plaintiffs still have a third amended complaint pending in the district court which was filed with the leave of Judge Ingram, which complies with Judge Ingram's prior orders, and which has not been the subject of any motion to dismiss. Before dismissing the action, the district court should have addressed the merits contained in the third amended complaint.

VACATED AND REMANDED.