Unpublished Disposition, 875 F.2d 318 (9th Cir. 1986)

MEMORANDUM

Mahdavi appeals pro se from the dismissal with prejudice of his employment discrimination action for failure to prosecute pursuant to Fed. R. Civ. P. 41(b). Mahdavi contends that the district court abused its discretion in dismissing his action because one of Mahdavi's discovery motions had been sent to another judge for a hearing and thus discovery was incomplete as of December 29, 1986, the date of the dismissal. We have jurisdiction over Mahdavi's timely appeal pursuant to 28 U.S.C. § 1291. We affirm.

On December 27, 1985, Mahdavi filed his first amended complaint against Kelly Services, Inc. (Kelly Services), alleging discrimination on the basis of age (51 years) and national origin (Iran). Mahdavi alleged in his complaint that the discrimination occurred when he submitted an application for temporary employment to Kelly Services and was not chosen to fill any of the advertised vacancies. Kelly Services answered the amended pleading on January 16, 1986.

At a May 1986 hearing, Mahdavi's motion to compel answers to his interrogatories was granted in part and denied in part, and continuance of the trial was granted to August 25, 1986. Mahdavi appealed the denial to this court and moved the district court to stay all proceedings pending appeal. The district court denied this motion on May 29, 1986. On July 8, 1986, the court ordered Mahdavi to appear at a deposition, warning him that dismissal would follow if he did not comply.

On August 6, 1986, Mahdavi moved for the appointment of counsel and, on August 7, the court vacated the trial date at Mahdavi's request. On September 9, 1986, the court denied Mahdavi's motion for appointment of counsel and ordered the trial set for December 15, 1986. Mahdavi appealed the denial of counsel to this court, and on October 8, 1986, Mahdavi moved in the district court for a stay pending appeal. The district court denied the stay motion on November 20, 1986, and continued the trial date to December 29, 1986. On December 23, 1986, Mahdavi moved the court to vacate its order setting the trial date, and the court promptly denied this motion on the same day.

On December 29, 1986, the court called the case for trial. Mahdavi was present and stated that he would not proceed. Mahdavi asked the court to reconsider its December 23rd order denying his motion to continue. Kelly Services moved to dismiss the case with prejudice pursuant to Fed. R. Civ. P. 41(b). The court granted this motion and dismissed the action with prejudice.

This appeal was consolidated with No. 87-1648, which raised the issue of whether the district court abused its discretion in denying Mahdavi's request for free transcripts. Mahdavi has abandoned this appeal as moot.

We review a dismissal for want of prosecution for an abuse of discretion. Hamilton v. Neptune Orient Lines, Ltd., 811 F.2d 498, 499 (9th Cir. 1987). We will overturn a dismissal sanction only if we have a definite and firm conviction that it was clearly outside the acceptable range of sanctions. Malone v. United States Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (Malone), cert. denied, 109 S. Ct. 59 (1988).

Mahdavi contends that the district court abused its discretion in dismissing his case for lack of prosecution because one of his discovery motions had been sent to another judge for a hearing and thus, at the time of the dismissal, he was unable to proceed because discovery was incomplete. He further contends that the court erred in denying his motions to compel answers to his interrogatories. These contentions are without merit. The record shows that Pacific Bell did comply with Mahdavi's request for documents, so resolution of Mahdavi's allegedly outstanding motion seeking to have it held in contempt was not essential to his proceeding with the trial on the scheduled day. The record also shows that Kelly Services complied with Mahdavi's assorted discovery requests and that the district court denied Mahdavi's request for further discovery from Kelly Services. Further, the argument Mahdavi advances in support of the relevance of his proposed further discovery shows that there would have been no point in further delay. Mahdavi appears to be claiming that there never was any temporary job opening as advertised by Kelly Services, nor were any workers ever hired--the advertisement was simply part of a larger conspiracy to keep Mahdavi from seeking employment in the Bay Area and to force his departure from it. Therefore, the district court did not abuse its discretion in dismissing this action without allowing further discovery. See id. at 131.

Five factors must be considered before imposing the sanction of dismissal: (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 defendant; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions. Toth v. Trans World Airlines, Inc., 862 F.2d 1381, 1385 (9th Cir. 1988) (Toth), citing Thompson v. Housing Authority of City of Los Angeles, 782 F.2d 829, 831 (9th Cir.), cert. denied, 479 U.S. 829 (1986). Where, as here, the district court does not explicitly consider the five factors, we must review the record independently to determine whether the dismissal was an abuse of discretion. Malone, 833 F.2d at 130.

The first two dismissal factors, the public's interest in expeditious resolution of litigation and the trial court's interest in docket control, support the court's decision to dismiss Mahdavi's case. The record indicates that this case had been set for trial as early as August 25, 1986, and as noted by the court, it had reserved a jury panel for December 29 and cleared its docket for this trial; thus, Mahdavi's refusal to proceed with trial impeded the resolution of the case and interfered with the court's efforts to maintain its docket and trial schedule. See id. at 131.

In determining whether a defendant has been prejudiced, we examine whether plaintiff's actions impair the defendant's ability to go to trial or threaten to interfere with the rightful decision of the case. See id. "The plaintiff has the burden of persuading the court of the reasonableness of his delay and the lack of prejudice to the defendant." Franklin v. Murphy, 745 F.2d 1221, 1232 (9th Cir. 1984). Here, Kelly Services would have been prejudiced by further delay as it was prepared to try the case on December 29th as ordered by the court and, additionally, the events giving rise to the action were already two years old. See Malone, 833 F.2d at 131.

Further, the only excuse offered by Mahdavi for his refusal to proceed with trial was that he had been sure our court would grant him a stay. However, this excuse was insufficient in light of the district court's explanation of the trial schedule to Mahdavi: the court specifically pointed out that the trial would proceed on the 29th of December unless we granted him a stay. Thus, Mahdavi's intentional and unjustified refusal to proceed prejudiced Kelly Services in a manner which justifies dismissal. See id.

The following factors are of particular relevance in determining whether a district court has considered alternatives to dismissal: (a) did the court explicitly discuss the feasibility of less drastic sanctions and explain why alternatives would be inadequate?; (b) did the court implement alternative methods of sanctioning or curtailing the malfeasance before ordering the dismissal?; and (c) did the court warn the plaintiff of the possibility of dismissal before actually ordering it? Id. at 132.

Here, the court did not explicitly discuss the feasibility of alternatives to dismissal, but the absence of such discussion does not preclude the sanction. See id. Where, as here, the court was faced with a plaintiff who appeared on the morning set for trial and announced that he would not proceed, discussion of alternatives is unnecessary. See id.

Moreover, warning a plaintiff that failure to obey a court order will result in dismissal can suffice to meet the consideration of alternatives requirement. Id. Here, although the court did not explicitly warn Mahdavi that dismissal would follow his refusal to comply with the court ordered trial schedule, the district judge made it clear that no continuances would be accepted. In light of Mahdavi's unwarranted refusal to proceed with trial in defiance of the trial schedule ordered by and explained by the court, the sanction of dismissal was not an abuse of discretion. See id. at 133; Mir v. Fosburg, 706 F.2d 916, 919 (9th Cir. 1983) (plaintiff's failure to comply with discovery and trial schedule without cause might warrant sanction of dismissal).

"While the public policy favoring disposition on the merits weighs against dismissal, it is not enough to preclude a dismissal order when the other four factors weigh as heavily in favor of dismissal as they do in this case." Toth, 862 F.2d at 1385. The district court's order of dismissal was not an abuse of discretion.

AFFIRMED.