Unpublished Disposition, 844 F.2d 791 (9th Cir. 1987)

MEMORANDUM^** 

Sharon Brushwiller [Brushwiller] appeals from the dismissal of her civil rights action for failure to obey the court's order to amend the complaint. We affirm.

Brushwiller seeks reversal on two grounds.

One. The dismissal was improper because amendment of the complaint was not necessary under Fed. R. Civ. P. 12(b) (6).

Two. The order to amend applied only as to one defendant and not as to all.

We review dismissal of an action pursuant to Fed. R. Civ. P. 41(b) for abuse of discretion. Schmidt v. Herrmann, 614 F.2d 1221 (9th Cir. 1980). The district court may dismiss an action under Rule 41(b) for the failure to comply with an order to amend the complaint after the plaintiff has failed to allege sufficient facts to state a claim for relief. See, e.g., Schmidt, 614 F.2d at 1223-24; Finley v. Rittenhouse, 416 F.2d 1186, 1187 (9th Cir. 1969); Agnew v. Moody, 330 F.2d 868, 870-71 (9th Cir.), cert. denied, 379 U.S. 867 (1964).

Brushwiller filed an action in United States District Court alleging that the defendants violated her civil rights under 42 U.S.C. §§ 1981, 1982, and 1985(3) in that they conspired to discriminate against her on the basis of her sex, race, and marital status. On February 2, 1987, the district court granted Ford Motor Company's motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b) (6) and gave Brushwiller 20 days leave to amend. The complaint was not amended. On March 31, 1987, the district court entered dismissal pursuant to Fed. R. Civ. P. 41(b) for Brushwiller's failure to obey the court's order to amend the complaint.

The record supports the district court's finding that Brushwiller failed to state a cause of action under sections 1981, 1982, or 1985(3) because she failed to allege any facts to support her allegations of discrimination, as required under the Civil Rights Act. Sherman v. Yakahi, 549 F.2d 1287, 1290 (9th Cir. 1977); Williams v. Gorton, 529 F.2d 668, 671 (9th Cir. 1976); see also Jones v. Community Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984) (Sec. 1983 claim dismissed because conclusory allegations were unsupported by any facts).

In addition, the record demonstrates that the court informed Brushwiller that the complaint was defective in its entirety. The court stated:

[T]he court may dismiss this entire case for lack of subject matter jurisdiction, unless the plaintiff's counsel can indicate to the court how in good faith he can file a claim in this court ... sufficient to bring him within the requirements of the statute that he is relying upon.

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[T]he court has the issue before it as to whether or not these [alleged actions] are violations of the civil rights laws, as alleged. I have determined that they are not. I am going to give you an opportunity to file an amended complaint, but I would do it carefully alleging what you contend are the violations of sections 1981, 1982 and 1985.

In so stating, the district court made it clear that Brushwiller faced dismissal of the entire action if she did not amend the complaint. Thereafter, Brushwiller failed to amend the complaint. Because Brushwiller failed to state a cause of action under the statutes alleged, dismissal as to all defendants for her failure to obey the court's order to amend the complaint was proper.

Defendants Ford Motor Company, Ford Motor Credit Company, and Person Ford request attorney's fees under 42 U.S.C. § 1988 and costs or double costs as a sanction against Brushwiller under 28 U.S.C. § 1912 and Fed. R. App. P. 38. Rule 38 provides that the court of appeals may award damages and single or double costs when an appeal is deemed frivolous. Fed. R. App. P. 38. Section 1988 provides that in actions brought to enforce the provisions of the Civil Rights Act, "the court in its discretion may allow the prevailing party ... a reasonable attorney's fee." 42 U.S.C. § 1988 (1982). We have held that a prevailing defendant is entitled to attorney's fees under section 1988 only if the plaintiff's action was " 'frivolous, unreasonable, or without foundation.' " Coverdell v. Department of Social and Health Services, 834 F.2d 758, 770 (9th Cir. 1987) (quoting Hughes v. Rowe, 449 U.S. 5, 14-15 (1980) (per curiam)). Finally, section 1912 allows an affirming court of appeals to award damages and costs or double costs to the prevailing party for his delay. 28 U.S.C. § 1912 (1982). While this statute is not couched in terms of frivolous appeals, we have awarded costs only in such cases. See, e.g., Dewitt v. Western Pac. RR. Co., 719 F.2d 1448, 1451 (9th Cir. 1983); McConnell v. Critchlow, 661 F.2d 116, 118 (9th Cir. 1981); Libby, McNeill, and Libby v. City Nat'l Bank, 592 F.2d 504, 514 (9th Cir. 1978); United States ex rel. Insurance Co. of North America v. Santa Fe Engineers, Inc., 567 F.2d 860, 861 (9th Cir. 1978). "An appeal is considered frivolous in this circuit when the result is obvious or the appellant's arguments of error are wholly without merit. McConnell, 661 F.2d at 118 (citation omitted).

In the instant case, Brushwiller had a colorable argument that the ruling below was ambiguous. Our finding that the order to amend the complaint as to all defendants was sufficiently clear to justify the subsequent order of dismissal does not mean that the result was obvious or that Brushwiller's argument was wholly without merit. Accordingly, an award of attorney's fees on appeal would be improper under Rule 38 or section 1988, and we decline to award them under section 1912.

AFFIRMED.