Unpublished Disposition, 872 F.2d 428 (9th Cir. 1987)

MEMORANDUM^* 

Jon McBride appeals the district court's dismissal of his civil rights action against Continental Airlines, Inc., for failure to prosecute and to appear at a status conference. He also appeals the district court's denial of his ex parte motion to vacate judgment under Fed. R. Civ. P. 60(b).

BACKGROUND

McBride brought this action on September 11, 1984, alleging that Continental's continued refusal to allow him passage on its flights from Guam to various islands in Micronesia violated his civil rights. This is the second time we have reviewed a dismissal of this action before trial. The district court initially dismissed McBride's action with prejudice on November 14, 1985, when McBride's counsel at the time, Francis Gill, failed to attend a sanctions hearing. The court denied McBride's motions to reconsider the dismissal and vacate the judgment. On appeal, we reversed the dismissal, concluding that McBride's failure to comply with court rules and orders did not warrant the harsh sanction of dismissal under the factors set forth in Thompson v. Housing Authority, 782 F.2d 829, 831 (9th Cir.), cert. denied, 479 U.S. 829 (1986).

Shortly after our decision, the district court issued a scheduling notice requiring McBride to file a proposed scheduling order by February 23, 1987. The scheduling notice also indicated that a scheduling conference would be held on March 4, 1987. On February 24, 1987, Gill filed a motion to withdraw. On February 26, 1987, the district court postponed the scheduling conference on its own initiative "until further notice," and on March 20, 1987, granted the motion to withdraw.

Counsel for Continental then noticed McBride's deposition for May 5, 1987. McBride flew from Texas to Guam to attend the deposition, and was represented at the deposition by attorney Robert Keogh from Guam.

On July 24, 1987, the district court issued notice of a status call hearing for August 28, 1987. Because a formal entry of appearance had not yet been filed by Keogh, the notice was sent only to McBride. Keogh contends that although he prepared an entry of appearance sometime in May 1987, he inadvertently failed to file it. Neither McBride nor Keogh attended the hearing. Assuming that McBride had received the notice, the court dismissed the case because the case had been going on for some time and McBride had failed to take any action to bring the case to trial. Judgment was entered on September 4, 1987; a copy of the judgment was mailed to McBride.

The dismissal was discovered by Keogh's associate on Friday, October 2, 1987. The district court denied McBride's motions to enlarge the time to file a notice of appeal and to vacate judgment. In denying the motion to vacate, the court found it unnecessary to decide whether Continental's attorney had misinformed the court at the status call hearing regarding whether Keogh was actually representing McBride. The court concluded that whether Keogh represented McBride was collateral to the court's previous determination that McBride had failed to bring the case to trial. McBride, through Keogh, filed a timely notice of appeal on October 5, 1987, and we have jurisdiction under 28 U.S.C. §§ 1291, 1294(4) (1982).

STANDARD OF REVIEW

The district court's dismissal of this action is properly reviewed as a dismissal for failure to prosecute under Fed. R. Civ. P. 41(b). See, e.g., Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); Raiford v. Pounds, 640 F.2d 944, 945 (9th Cir. 1981). A district court's dismissal of a case for want of prosecution is reviewed for abuse of discretion. Link v. Walbash R.R., 370 U.S. 626, 633 (1962); Thompson, 782 F.2d at 832.

ANALYSIS

It is well settled in this circuit that the harsh penalty of dismissal should be imposed as a sanction only in extreme circumstances. Malone v. United States Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987) (quoting Henderson, 779 F.2d at 1423), cert. denied, 109 S. Ct. 59 (1988); Thompson, 782 F.2d at 831. A dismissal sanction, however, may be overturned only if the court has a definite and firm conviction that it was clearly outside the acceptable range of sanctions. Malone, 833 F.2d at 130.

As in our previous decision, we begin by reciting the five factors a district court should weigh in determining whether to dismiss a case for lack of prosecution: (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. Malone, 833 F.2d at 130; Henderson, 779 F.2d at 1423. Because the district court did not explicitly consider the five dismissal factors, we independently review the record to determine whether the dismissal was an abuse of discretion. Id.

A. First Two Dismissal Factors.

The first two dismissal factors--the public interest in expeditious litigation and the trial court's interest in docket control--appear to support the district court's dismissal of McBride's case, although only slightly. If failure to attend the status conference was the only incident of delay alleged against McBride, it would be insufficient to support dismissal under the first two dismissal factors. Here, however, the court patiently waited several months for McBride to find an attorney and pursue his action. Shortly after we issued our mandate, the district court issued a scheduling notice requiring McBride to file a proposed scheduling order by February 23, 1987, and setting up a scheduling conference for March 4, 1987. The order was never filed. Rather, one day after the order was due, Gill filed a motion to withdraw. The court granted the motion and was forced to place the case on hold until McBride could find another attorney. Additionally, Keogh conducted no discovery whatsoever between the time the mandate was issued and the second dismissal of the case.¹  These factors, in light of the circumstances surrounding the prior dismissal, lead us to conclude that the dismissal finds support in the first two factors.

B. Prejudice to Continental.

The third factor, prejudice, does not support dismissal. Whether Continental suffered prejudice requires examination not only of McBride's and Keogh's failure to attend the hearing, but also of McBride's delay in failing to move forward with his case.

In determining whether Continental was prejudiced, "we examine whether the plaintiff's actions impair the defendant's ability to go to trial or threaten to interfere with the rightful decision of the case." Malone, 833 F.2d at 131. The delay in this case did not impair Continental's ability to go to trial or interfere with a proper decision of the case. At most, the delay has been an inconvenience to Continental; the only actual prejudice is the cost and inconvenience of attending the status hearing. The prejudice to Continental does not rise to the level of prejudice that this court has previously required in justifying dismissal. See, e.g., id. (after the case was dismissed and reset for trial because of plaintiff's lack of preparation, plaintiff's failure to file detailed pretrial statement prejudiced government in a manner justifying dismissal); United States v. Kahaluu Constr. Co., 857 F.2d 600, 604 (9th Cir. 1988) (inconvenience does not constitute actual prejudice); Mir v. Fosburg, 706 F.2d 916, 918-19 (9th Cir. 1983) (a one-year delay did not sufficiently prejudice defendant to justify dismissal). Admittedly, a weak excuse for delay may be insufficient if the resulting prejudice is great. Nealey v. Transportacion Maritima Mexicana, S.A., 662 F.2d 1275, 1280 (9th Cir. 1980) (quoting Judge Friendly in Larios v. Victory Carriers, Inc., 316 F.2d 63, 67 (2d Cir. 1963)); see also Malone, 833 F.2d at 131 ("Whether prejudice is sufficient to support an order of dismissal is in part judged with reference to the strength of the plaintiff's excuse for the default."). Although the reasons for the delay and failure to attend the hearing may not have been strong, the presence of any prejudice is nevertheless sufficiently lacking to warrant dismissal.

C. Consideration of Less Drastic Alternatives.

Relying on this circuit's past decisions, the Malone court summarized three factors it considered relevant in determining whether a district court has properly considered alternatives to dismissal:

(1) Did the court explicitly discuss the feasibility of less drastic sanctions and explain why alternative sanctions would be inadequate? (2) Did the court implement alternative methods of sanctioning or curing the malfeasance before ordering dismissal? (3) Did the court warn the plaintiff of the possibility of dismissal before actually ordering dismissal?

Id. at 132.

Here, as in Malone, the district court did not discuss the feasibility of alternatives. Although preferred, "explicit discussion of alternatives is unnecessary if the district court actually tries alternatives before employing the ultimate sanction of dismissal." Id. The district court in this instance did not implement any alternative methods of sanctioning McBride during the nine-month period following the issuance of the mandate.²  Continental contends, however, that the first dismissal and award of sanctions satisfies the second prong. A similar question arises under the third Malone inquiry. Whether the court warned McBride about the possibility of dismissal depends on whether the prior dismissal and sanctioning are considered.

The court in Malone faced a similar question under the implementation of alternative methods inquiry. In Malone, the district court declared a mistrial because of lack of preparation on the part of Malone's attorney and set a new trial date. Id. at 129. The court dismissed the case when Malone's attorney failed to file a detailed pretrial statement because Malone allegedly lacked the financial resources to do so. We concluded that the district court's declaration of mistrial and subsequent pretrial order constituted less drastic alternatives to dismissal. Id. at 132.³ 

The facts in this case are closely akin to the circumstances in Malone. Although why the district court dismissed the case the first time is not exactly clear, it was at least partly due to McBride's attorney's failure to comply with the court's rules and schedules. In fact, the final event causing the court to dismiss the case the second time was the same defect which led the court to dismiss the case the first time.

We therefore conclude that the district court satisfied the requirement that it attempt alternative methods of curbing the lack of progression in this case and the failure of McBride and his attorneys to attend the court's scheduled hearings. Likewise we find that McBride was put on adequate notice that dismissal might result should the court's rules or schedule be ignored.

D. Public Policy Favoring Disposition of the Merits. This factor obviously weighs against dismissal.

E. Evaluation of Factors.

While we sympathize with Judge Duenas's difficulty in moving this case forward, we find that the sanction of dismissal was unwarranted. The brief delay following the deposition and the failure of McBride or Keogh to attend the hearing is outweighed by the absence of prejudice to Continental and the policy favoring disposition of McBride's claim on the merits.

We reach this decision in part because of the district court's reliance on McBride's own conduct in deciding to dismiss the case. We do not believe that McBride can properly be charged with delay in prosecuting his case. Less than a month after Gill petitioned the court to withdraw as counsel, McBride flew to Guam from Texas, obtained an attorney, and attended his deposition. We also do not think it unreasonable for McBride to assume that his attorney in Guam would attend the scheduling conference, a proceeding not often attended by parties themselves. The short delay between May and September 1987 and Keogh's absence at the hearing were not the fault of McBride. Yet the impact of the sanction imposed, dismissal, affects only McBride. These circumstances, coupled with the lack of prejudice to Continental and the policy favoring resolution on the merits, convince us that dismissal was too harsh a sanction. We note that our holding does not "disavow the established principle that the faults ... of the attorney may be imputed to, and their consequences visited upon his client." In Re Hill, 775 F.2d 1385, 1387 (9th Cir. 1985). This principle is inapplicable to this case because the district court dismissed the case based on the conduct of McBride himself and not that of Keogh. Additionally, although we find dismissal improper, our decision does not preclude the district court from considering on remand whether sanctions other than dismissal, against either McBride or Keogh, or both, are appropriate.⁴ 

REVERSED and REMANDED.