Unpublished Disposition, 865 F.2d 263 (9th Cir. 1986)

No. 86-6584.

United States Court of Appeals, Ninth Circuit.

Before CYNTHIA HOLCOMB HALL and LEAVY, Circuit Judges, and ROGER G. STRAND,^*  District Judge.

MEMORANDUM^** 

Ronald Blagden Anderson appeals from a judgment dismissing with prejudice his employment discrimination action and assessing costs, attorney fees, and a fine as sanctions for his noncompliance with court orders. We review for an abuse of discretion, see Malone v. United States Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987), and affirm except as to certain costs.

The district court set forth its reasons for imposing sanctions under Fed. R. Civ. P. 37(b) (2) (C) and 41(b) in its dismissal order of October 22, 1986. While that order does not explicitly indicate that the court had considered the five dismissal factors enumerated in Thompson v. Housing Authority, 782 F.2d 829, 831 (9th Cir.), cert. denied, --- U.S. ----, 107 S. Ct. 112 (1986), we note that a reviewing court may independently examine the record to determine whether the district court abused its discretion in the selection and imposition of sanctions. Malone, 833 F.2d at 130 (citing Thompson) .

We find nothing clearly erroneous in the court's recitation of facts on which the sanctions were based. See United States v. National Medical Enters., Inc., 792 F.2d 906, 911 (9th Cir. 1986). The sanctions of costs, fees, and dismissal were not imposed until after the appellant had repeatedly demonstrated an unwillingness to comply with the court's orders, and then only after a lesser sanction (viz., a $500 fine) failed to correct the appellant's behavior. The district court did not abuse its discretion in its selection and imposition of sanctions.

However, in light of the Supreme Court's recent decision in Crawford Fitting Co. v. Gibbons, --- U.S. ----, 107 S. Ct. 2494 (1987) and the appellees' stipulation to modify the judgment to withdraw the award of expert witness fees as costs, we direct the district court on remand to modify the judgment to conform to the stipulation.

AFFIRMED in part and REMANDED for further proceedings consistent with this memorandum. The appellees are to recover their costs.