Unpublished Disposition, 928 F.2d 1136 (9th Cir. 1988)

MEMORANDUM^* 

Maria Elena Garcia appeals from the district court's order dismissing her complaint with prejudice and the denial of her motion for reconsideration. The district court dismissed Garcia's complaint with prejudice because she failed to file written opposition to the motions to dismiss. We vacate and remand.

PERTINENT FACTUAL AND PROCEDURAL BACKGROUND

On March 28, 1985, Garcia alleges that she was involved in an incident with two police officers employed by the City of Orange. On January 24, 1986, Garcia filed a complaint in state court against the two police officers, the City of Orange, and the City of Santa Ana (collectively Cities). On January 21 and 25, 1988, the Cities were served with the complaint and summons. On February 12, 1988, the Cities filed a petition for removal to federal court.

On February 17, 1988, the City of Orange and the City of Santa Ana each filed a motion to dismiss pursuant to Rule 12(b) (6) of the Federal Rules of Civil Procedure or for a more definite statement. These motions were initially scheduled for hearing on April 18, 1988. Central District Local Rule 7.6 provides as follows:

Each opposing party shall, not later than fourteen (14) days before the date designated for the hearing of the motion, serve upon all other parties and file with the clerk either (a) the evidence upon which the opposing party will rely in opposition to the motion and a brief but complete memorandum which shall contain a statement of all the reasons in opposition thereto and the points and authorities upon which the opposing party will rely, or (b) a written statement that he will not oppose the motion.

Thus, under Local Rule 7.6, Garcia was required to file a written opposition "not later than" April 4, 1988.

Pursuant to Local Rule 7.9 " [p]apers not timely filed by a party including any memoranda or other papers required to be filed under this rule will not be considered and may be deemed by the Court consent to the granting or denial of the motion, as the case may be."

The record shows that on April 12, 1988, a legal assistant for Garcia's counsel telephoned the Cities' counsel to advise them that no opposition would be filed to the motions to dismiss, but that plaintiff would seek leave to amend. The legal assistant also telephoned the clerk of the district court on the same date. The clerk informed the legal assistant that the notification had to be in writing.

On April 14, 1988, Garcia filed an ex parte application for leave to file a late statement of non-opposition. A written statement of "partial non-opposition" was lodged by the clerk wherein Garcia alleged that she would not oppose the motions but would seek leave to amend the complaint. On the same date, Garcia's counsel, who was not then a member of the bar of the Central District of California, associated Neir J. Westreich as co-counsel.

At the hearing on April 20, 1988, the district court ruled that Cities' motions to dismiss would be deemed to be unopposed. On May 9, 1988, the district court entered an order dismissing Garcia's complaint with prejudice.

On May 23, 1988, Garcia filed a motion for reconsideration and clarification, and for leave to amend the complaint, or alternatively for relief from the court's order. On July 12, 1988, the district court entered an order denying reconsideration. The court also ruled that the May 9, 1988, order dismissing the complaint with prejudice was a final order. Garcia has timely appealed.

DISCUSSION

Garcia appeals from the order entered May 9, 1988, dismissing the complaint with prejudice, and the order entered on July 12, 1988, denying her motion for reconsideration. The district court did not expressly dismiss the action. Because the district court characterized the May 9, 1988, order as a dismissal of the complaint, we must first determine, sua sponte, whether the dismissal of the complaint with prejudice was a final and appealable order under the circumstances of this case. Hoohuli v. Ariyoshi, 741 F.2d 1169, 1171 n. 1 (9th Cir. 1984). We have jurisdiction over appeals from all "final decisions" of the district court. 28 U.S.C. § 1291. Ordinarily, an order dismissing the complaint only, without dismissal of the action, is not a final judgment and will not support jurisdiction under 28 U.S.C. § 1291. California v. Harvier, 700 F.2d 1217, 1218 (9th Cir. 1983), cert. denied, 464 U.S. 820 (1983).

We have previously held that this court has jurisdiction when "the ruling was on a ground not curable by amendment, and it is clear that the court intended to dispose of the action." Scanlon, 677 F.2d at 1272; See also Hoohuli v. Ariyoshi, 741 F.2d at 1171 n. 1 ("If it appears that the district court intended the dismissal to dispose of the action, it may be considered final and appealable").

Each of the motions to dismiss were titled "Motion to Dismiss Complaint." Despite this, and the court's characterization of its order as a dismissal of the complaint, we conclude that the district court intended to dispose of the action. The court dismissed the complaint with prejudice. It did not grant leave to amend. Furthermore, in its July 12, 1988, order denying reconsideration, the district court stated that " [t]he May 9, 1988 order dismissing the complaint with prejudice constituted entry of final judgment on the action." We conclude that jurisdiction in this court is proper under 28 U.S.C. § 1291.

II. The District Court's Sanction of Dismissal of The Complaint With Prejudice

District courts have "inherent power" to control their dockets. Hamilton Copper & Steel Corp. v. Primary Steel, 898 F.2d 1428, 1429 (9th Cir. 1990) (citing Thompson v. Housing Authority of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986), cert. denied, 479 U.S. 829 (1986)). "In the exercise of that power they may impose sanctions including, where appropriate, ... dismissal" of a case. Thompson, 782 F.2d at 831 (citing Link v. Wabash Railroad Co., 370 U.S. 626 (1962)). However, " [d]ismissal is a harsh penalty and is to be imposed only in extreme circumstances." Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986). The district court's dismissal of Garcia's complaint with prejudice for failure to file written opposition is reviewed for abuse of discretion. Witt v. United States, 681 F.2d 1144, 1149 (9th Cir. 1982). " [W]e will overturn a dismissal sanction only if we have a definite and firm conviction that it was clearly outside the acceptable range of sanctions." Malone v. United States Postal Service, 833 F.2d 128, 130 (9th Cir. 1987), cert. denied, 488 U.S. 819 (1988). The issue is " 'not whether this court would have, as an original matter, imposed the sanctions chosen by the trial court, but whether the trial court exceeded the limits of its discretion.' " Toth v. Trans World Airlines, Inc., 862 F.2d 1381, 1385 (9th Cir. 1988) (quoting Halaco Engineering Co. v. Costle, 843 F.2d 376, 379 (9th Cir. 1988)).

In Thompson v. Housing Authority of Los Angeles, 782 F.2d 829 (9th Cir. 1986), cert. denied, 479 U.S. 829 (1986), we identified five factors which a district court must consider before imposing the sanction of 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." Id. at 831. "It is not necessary for a district court to make explicit findings to show that it has considered these factors." Malone, 833 F.2d at 130 (citing Henderson, 779 F.2d at 1424). In the present case, the district court did not expressly indicate that it had considered any of these factors. In its order of dismissal, the district court explained its decision as follows:

Local Rule 7.9 provides, "Papers not timely filed by a party ... will not be considered and may be deemed by the Court consent to the granting ... of the motion." Accordingly, the court deems Defendants' motion to dismiss as unopposed.

This action arises from Plaintiff's contact with the Orange Police Detectives on March 28, 1985. Plaintiff originally filed this lawsuit over two years ago in the Orange County Superior Court. The excessive time delay in pursuing her claims is indicative of the frivolousness of the action. Plaintiff has not shown that she would have a cause of action under 42 U.S.C. Section 1981. She has not alleged that there was any discrimination based on race. See Lowe v. City of Monrovia, 775 F.2d 998, 1010 (9th Cir. 1985). Furthermore, although Plaintiff did not rely on Section 1983 in her complaint, even if she did claim a violation of Section 1983, Plaintiff has not shown that there was a deprivation of a constitutional right pursuant to an official custom, policy or practice of a municipality. See Monell v. Dep't of Social Services, 436 U.S. 658 (1978).

Because the district court did not indicate that it had considered the factors set forth in Thompson, we must review the record independently to determine whether the dismissal with prejudice for an infraction of a local rule was an abuse of discretion. See Malone, 833 F.2d at 130 (citing Henderson, 779 F.2d at 1424). We conclude that the district court abused its discretion in dismissing this action for violating Local Rule 7.6.

The first two factors set forth in Thompson support the trial court's dismissal of Garcia's complaint with prejudice. Factors one and four do not require extensive consideration. "The public's interest in expeditious resolution of litigation" and "the public policy favoring disposition of cases on their merits" are general matters of policy which always weigh in opposite directions. Factors two, three and five, however, are implicated in the present case. After an independent review of the record, we have weighed the district court's "inherent power" to control its docket (Hamilton, 898 F.2d at 1429) against our determination that there was no prejudice to the Cities, and that there is no evidence that less drastic sanctions were unavailable. We find factor two to be outweighed by factors three and five, and we are persuaded that the district court's dismissal with prejudice falls "clearly outside the acceptable range of sanctions" in this case. (Malone, 833 F.2d at 130).

"In determining whether a defendant has been prejudiced, we examine whether the plaintiff's actions impair the defendant's ability to go to trial or threaten to interfere with the rightful decision of the case." Malone, 833 F.2d at 131 (citing Rubin v. Belo Broadcasting Corp., 769 F.2d 611, 618 (9th Cir. 1985)). Garcia contends that the Cities did not demonstrate actual prejudice from Garcia's failure to file a timely opposition.

We have held that unreasonable delay creates a presumption of injury to the defense. Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986) (citing Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984), cert. denied, 470 U.S. 1007 (1985)). Generally, the presumption applies where counsel repeatedly causes unnecessary delay. See, e.g., Henderson, 779 F.2d at 1425 ("Where counsel continues to disregard deadlines, warnings, and schedules set by the district court, we cannot find that a lack of prejudice to defendants is determinative"); Chism v. National Heritage Life Insurance Co., 637 F.2d 1328, 1331 (9th Cir. 1981) (indicating that defendant had been prejudiced by plaintiff's continual flouting of discovery rules, failure to comply with pretrial conference obligations, and repeated violation of local court rules).

In the present case, the presumption of prejudice does not appear to be determinative because the present record does not demonstrate unreasonable delay. Generally, we accord "deference to the district court because it is in the best position to determine what period of delay can be endured before its docket becomes unmanageable." Henderson, 779 F.2d at 1423. The district court is in the best position to determine whether a short delay combined with a history of other dilatory actions constitutes unreasonable delay. Henderson, 779 F.2d at 1424. In the present case, the record does not indicate a persistent pattern of delay by Garcia in the prosecution of her claim in the federal court. The failure to file a timely written opposition until 10 days after the time set forth in the local rules is the only delay reflected in the present record.

In its dismissal order, the district court noted that the fact that Garcia did not serve the Cities for over two years after the filing of her complaint in state court demonstrated "the frivolousness of the action." The court did not find, however, that this delay was prejudicial.

In the absence of the presumption of prejudice, the record must reflect actual prejudice to the Cities. In their brief, the Cities do not suggest that they suffered actual prejudice. The present record does not reflect how the delay of 10 days in complying with the local rules prejudiced the Cities.

B. Consideration of Less Drastic Alternatives

Our case law reveals that the following factors are of particular relevance in determining whether a district court has considered alternatives to dismissal: (1) Did the court explicitly discuss the feasibility of less drastic sanctions and explain why alternative sanctions would be inadequate? (2) Did the court implement alternative methods of sanctioning or curing the malfeasance before ordering dismissal? (3) Did the court warn the plaintiff of the possibility of dismissal before actually ordering dismissal?

Malone, 833 F.2d at 132

As noted above, the district court did not indicate whether it considered alternatives to dismissal. We have stated that we prefer "explicit discussion by the district court of the feasibility of alternatives when ordering dismissal." Malone, 833 F.2d at 132 (citing Guam v. Reyes, 800 F.2d 940, 944 (9th Cir. 1986)); Rubin v. Belo Broadcasting Corp., 769 F.2d 611, 617 (9th Cir. 1985). However, "we have never held that an explicit discussion of alternatives is necessary for an order of dismissal to be upheld." Malone, 833 F.2d at 132. Under "egregious circumstances ..., where the plaintiff has purposely and defiantly violated a court order, it is unnecessary (although still helpful) for a district court to discuss why alternatives to dismissals are infeasible." Id.

The record is silent regarding whether the district court considered alternative sanctions. Furthermore, the record does not demonstrate that "egregious circumstances" excuse an examination of the infeasibility of an alternative to dismissal. See United States For Use of Wiltec Guam v. Kahaluu Construction Co., 857 F.2d 600, 604 (9th Cir. 1988) ("the district court is generally required to discuss alternative sanctions; but in exceptional cases, where it is clear that no other alternative would have been reasonable, we may affirm a dismissal ... despite the absence of such a discussion"); Halaco Engineering Co. v. Costle, 843 F.2d 376, 381 (9th Cir. 1988) ("consideration of less severe penalties must be a reasonable explanation of possible and meaningful alternatives").

The district court did not provide any notice to Garcia that dismissal with prejudice was imminent. In Witt v. United States, 681 F.2d 1144, 1149 (9th Cir. 1982), we found that the district court abused its discretion in dismissing an action, for failure to file a memorandum of points and authorities, without warning or consideration of alternatives. Id. at 1149. See also Malone, 833 F.2d at 133 ("Failure to warn has frequently been a contributing factor in our decisions to reverse orders of dismissal."); Franklin v. Murphy, 745 F.2d 1221 (9th Cir. 1984) (abuse of discretion to dismiss action without warning plaintiff's counsel that his inaction risked dismissal); Tolbert v. Leighton, 623 F.2d 585, 587 (9th Cir. 1980) (abuse of discretion to dismiss an action that was only seven months old without warning the plaintiff's attorney that he risked dismissal by failing to appear at a status conference).

CONCLUSION

The present record fails to demonstrate that the Cities were prejudiced by the delay of 10 days in Garcia's attempt to comply with the local rules. We found no evidence that counsel was warned that the ultimate weapon of dismissal of the action would result from a short delay in complying with the local rules. The court failed to explain whether it considered less drastic sanctions such as an award of costs and attorneys' fees. Because we must vacate and remand the order dismissing the action for abuse of discretion, the question whether the court erred in denying the motion for reconsideration is moot. The order dismissing the complaint is vacated and remanded for consideration of the Thompson factors.

VACATED and REMANDED.