Unpublished Disposition, 848 F.2d 1242 (9th Cir. 1986)

MEMORANDUM^**

Betty Bethea Groce ("Groce") appeals pro se the district court's dismissal of her lawsuit against numerous federal and state defendants. The district court dismissed the action with prejudice as a sanction for Groce's refusal to participate in discovery. We affirm.

On February 3, 1984, Groce brought an action in federal district court against numerous defendants¹ , seeking fifty million dollars in damages for alleged constitutional and civil rights violations.² 

The district court dismissed a number of Groce's claims on October 18, 1985, and set December 1985 dates for discovery cut-off and trial. On November 14, 1985, the court gave Groce twenty days to serve parties who were not yet part of the action. On December 2, 1985, the court allowed Groce additional time to serve those parties and continued trial until March 3, 1986.

A telephone conference call was held on February 5, 1986, at which time the court reset the discovery cut-off date for May 1, 1986, and again continued the trial. The new trial date was set for June 3, 1986, to allow Groce time to cure defects in her pleadings.³ 

Groce had not complied with any discovery requests as of February 28, 1986, when she filed a motion for a protective order so that "no discovery be had." On April 2, 1986, Groce refused to participate in a telephone conference call that had been scheduled by the district court to hear all pending motions. On April 29, 1986, Groce failed to appeal at a scheduled and noticed deposition.

The district court ordered summary judgment for one of the defendants, Transamerica Financial Services ("Transamerica"), on May 7, 1986. The court also denied Groce's motion for a protective order and granted various motions to compel discovery. The court warned that Groce's claims would be dismissed with prejudice unless she complied with discovery requests.

On May 28, 1986, the district court held a telephone conference call for which Groce was unavailable, although noticed. The court found that Groce had refused to participate in discovery,⁴  and filed an order on June 2, 1986, dismissing the action with prejudice. The court awarded costs to all defendants.

On June 13, 1986, Groce timely filed a notice of appeal from the district court's June 2, 1986 order of dismissal. This court has jurisdiction pursuant to 28 U.S.C. § 1291.

Under Fed. R. Civ. P. 37(b) (2), the district court may dismiss an action as a sanction for failure to "obey an order to provide or permit discovery." Dismissal is, however, a harsh penalty which should not be imposed except in extreme circumstances. Wyle v. R.J. Reynolds Industries, Inc., 709 F.2d 585, 589 (9th Cir. 1983). It is appropriate only if the failure to comply with discovery was "due to willfulness, bad faith, or fault of the party." Id.

A single willful failure to comply with discovery, in light of otherwise extensive compliance, is insufficient to justify dismissal. Fjelstad v. American Honda Motor Co., 762 F.2d 1334, 1343 (9th Cir. 1985). Dismissal is an appropriate sanction, however, for persistent and continuous willful efforts at resisting discovery. See United Artists Corp. v. La Cage Aux Folles, Inc., 771 F.2d 1265, 1271 (9th Cir. 1985).

There is ample evidence that Groce's refusal to participate in discovery was continuous, willful, and in bad faith. Groce failed to answer interrogatories, refused to participate in telephone conference calls scheduled by the district court, and failed to attend her deposition or notify opposing counsel that she would not attend. Moreover, Groce refused to cooperate despite both the district court's denial of her motion for a protective order and its warning that Groce's claims would be dismissed if she did not comply with discovery requests. Thus, the district court had adequate grounds for issuing the order of dismissal.

Nonetheless, before granting the sanction of dismissal, a district court is required to consider lesser sanctions and conclude that they are inadequate. North American Watch Corp. v. Princess Ermine Jewels, 786 F.2d 1447, 1451 (9th Cir. 1986). Here, the district court did not explicitly conclude that lesser sanctions would be inadequate. The record, however, supports such a finding. The imposition of further economic sanctions would have been ineffective since Groce recently went through bankruptcy.

Moreover, the district court did not indicate that it would order the dismissal until June 2, 1986.⁵  Groce had not yet permitted discovery, and the trial was scheduled to begin the next day. The district court had already twice continued the trial to allow Groce additional time to serve parties and cure the defects in her pleadings. Permitting another continuance would have been a waste of the defendants--and the court's--time and resources. This is particularly true since efforts to give Groce additional time to comply apparently had been futile. Thus, the dismissal of Groce's action was not an abuse of discretion despite the district court's failure to provide an express consideration of lesser sanctions.

We also deny Groce's motion for summary judgment, filed with this court on September 11, 1986. The Federal Rules of Appellate Procedure do not provide summary judgment on appeal.

The district court's order dismissing Groce's action with prejudice is thus

AFFIRMED.