Unpublished Disposition, 931 F.2d 897 (9th Cir. 1990)

MEMORANDUM^** 

Michael C. Meeks appeals the district court's dismissal of his 42 U.S.C. § 1983 civil rights complaint¹  with prejudice for "failure to participate in ordered pretrial proceedings." We review the district court's dismissal for an abuse of discretion. See Malone v. United States Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987), cert. denied, 488 U.S. 819 (1988). We vacate and remand.

The district court must weigh five factors before dismissing a case for failure to comply with a court order: (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 defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions. See id. If the district court does not explicitly consider these factors, we independently review the entire record to determine whether the order of dismissal was an abuse of discretion. Id.

A. Expeditious Litigation and Docket Management

On April 30, 1990, a pretrial hearing was held before Judge Gilliam at which Meeks was present. Defendants sought and were granted a continuance until May 2, 1990, in order to arrange for a discovery conference with the magistrate. Meeks did not attend the May 2, 1990 continued hearing.

Meeks argues that he did not attend the continued hearing because he thought the continued hearing was solely to allow the defendants an opportunity to depose Meek's proposed expert witness. Thus, he did not understand that his presence was necessary.

Meeks states that he appeared on the date scheduled for trial, May 8, 1990. Meek's case, however, had already been dismissed because he did not appear at the continued hearing.

Meek's failure to attend one continued hearing did not greatly impede the resolution of the case. Nor did his failure to attend the continued hearing prevent the district court from adhering to its trial schedule. Therefore, the first two dismissal factors, the public interest in expeditious resolution of litigation and the district court's interest in managing its docket, weigh against dismissal. See id. at 131.

There is no evidence that Meeks's failure to attend the continued hearing prejudiced defendants. His actions neither impaired the defendants' ability to proceed to trial nor threatened to interfere with the rightful decision of the case. See id. (to show prejudice defendants must show plaintiff's actions interfered with defendant's ability to proceed to trial or interfered with the rightful decision of the case). Thus, the third factor also weighs against dismissal.

Respondents suggest the district court considered alternative sanctions because in its order of dismissal the court initially granted defendant's order striking Meek's expert witness.²  We disagree.

The following factors are particularly relevant in determining whether a district court has considered alternative sanctions to dismissal: (1) whether the court explicitly discussed whether less drastic sanctions were feasible and explained why alternative sanctions would be inadequate; (2) whether the court implemented alternative sanctions before ordering dismissal; and (3) whether the court warned the plaintiff of the possibility of dismissal. See id. at 132. It is an abuse of discretion for the district court to impose a sanction of dismissal without first considering the impact of the sanction and the adequacy of less drastic sanctions. See id.

The district court did not explicitly discuss the feasibility of less drastic sanctions in the order of dismissal. Nor did the district court implement a less drastic sanction before dismissing Meek's action. Although the district court did grant defendants' motion to strike Meeks's proposed expert witness, this sanction was concurrent with the order of dismissal, and was not considered as an alternative sanction.

Finally, the district court did not warn Meeks of the possibility of dismissal. Although the record shows that there was an attempt to contact Meeks at home, the number called was disconnected. Meeks argues that the court called his old number, although he had included his new number on documents filed with the court.

We find that under the circumstances, the district court did not adequately consider less drastic sanctions. Thus, the fourth factor also weighs against dismissal.

D. Public Policy Favoring Dispositions on the Merits

Meeks's case was scheduled for trial at the time it was dismissed. The record shows that Meeks had prepared extensively for the May 8th trial date. Given these circumstances we find that the fifth factor weighs against dismissal.

Accordingly, we vacate the district court's order of dismissal and remand this case for further proceedings.³ 

VACATED AND REMANDED.