In Re Kenneth Jones, Debtor,kenneth Jones, Plaintiff-appellant, v. Rita Ann "gobert" Jones, Defendant-appellee, 972 F.2d 1340 (9th Cir. 1992)

MEMORANDUM^*

Kenneth Jones appeals the Bankruptcy Appellate Panel's (BAP) opinion dismissing his complaint for failure to attend a properly noticed deposition. We review the imposition of sanctions ordered under Federal Rule of Civil Procedure 37 for an abuse of discretion and will not reverse absent a definite and firm conviction that the lower court made a clear error of judgment. Halaco Engineering Co. v. Costle, 843 F.2d 376, 379 (9th Cir. 1988).

A court must weigh five factors in determining whether to dismiss 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 the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions." Thompson v. Housing Authority of City of Los Angeles, 782 F.2d 829, 831 (9th Cir.), cert. denied, 479 U.S. 829 (1986).

Here the BAP explicitly considered all five dismissal factors. After carefully reviewing that decision and independently reviewing the record, we find that the decision to award sanctions was not an abuse of discretion.

The decision to award attorney's fees and costs against Jones for failure to attend the deposition was proper under Fed. R. Civ. P. 37(b) as was the decision to deny his motion to amend the findings and judgment of the order for sanctions under Fed. R. Civ. P. 52(b).

AFFIRMED.