Unpublished Disposition, 890 F.2d 420 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 890 F.2d 420 (9th Cir. 1987)

Raymond L. HUNTER, dba Hunter & Associates Advertising,Plaintiff-Appellee,v.Neil BARON, dba Tri-State Industries, Defendant-Appellant.

No. 88-5781.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 27, 1989.* Decided Nov. 30, 1989.

Before CHOY, ALARCON and CANBY, Circuit Judges.


MEMORANDUM** 

Neil Baron appeals the district court's denial of his motion under Fed. R. Civ. P. 60(b) for relief from a default judgment entered against him for failure to cooperate in pretrial proceedings. Baron contends that the district court abused its discretion by imputing to Baron the culpable conduct of his attorney which resulted in the default judgment. This court has jurisdiction under 28 U.S.C. § 1291. We affirm.

FACTS

On October 25, 1985, Raymond Hunter filed a complaint in district court against Baron, alleging breach of contract. Although Baron initially appeared in propria persona, he was represented by attorney Jerome Eisenberg when he filed his timely answer to Hunter's first amended complaint. Thereafter, attorney Eisenberg apparently discontinued communication with both Baron and the court.

In September 1986, Eisenberg failed to cooperate in the preparation of a pretrial order pursuant to Central District Local Rule 9.8. On November 5, 1986, the district court ordered Baron and Eisenberg to show cause why the court should not impose sanctions for failure to comply with pretrial proceedings. The court specified that the order be served on all counsel. On November 17, 1986, neither Baron nor Eisenberg appeared at the hearing to show cause. The court struck the answer and ordered that default be entered. On January 30, 1987 the court entered default judgment in the amount of $21,118.43 against Baron.

Baron retained new counsel and on August 21, 1987 filed a Rule 60(b) (1) motion seeking to set aside the default judgment on the ground that the default was caused solely by the mistake, inadvertence, surprise, or excusable neglect of his former counsel. On December 30, 1987, the district court denied the motion on the grounds that (1) it was untimely; (2) relief from default would prejudice Hunter; and (3) the culpable actions of Baron's attorney were imputed to Baron. Baron timely appeals.

DISCUSSION

A district court's denial of a Rule 60(b) motion to set aside a default judgment is reviewed for abuse of discretion. Direct Mail Specialists, Inc. v. Eclat Computerized Technologies, Inc., 840 F.2d 685, 687 (9th Cir. 1988). This court will reverse only upon a clear showing of abuse of discretion. Id.

Although default judgments are generally disfavored, it is well established that a "finding that the plaintiff will be prejudiced, or that the defendant lacks a meritorious defense, or that the defendant's own culpable conduct prompted the default is sufficient to justify the district court's refusal to vacate a default judgment." Cassidy v. Tenorio, 856 F.2d 1412, 1415 (9th Cir. 1988); Direct Mail Specialists, Inc., 840 F.2d at 690; Meadows v. Dominican Republic, 817 F.2d 517, 521 (9th Cir. 1987) cert. denied, 108 S. Ct. 486. These factors are disjunctive, and any one of them will justify the district court in denying relief. Cassidy, 856 F.2d at 1415.

A defendant is culpable when he has received actual or constructive notice of the filing of the action and failed to answer or defend. Direct Mail Specialists, 840 F.2d at 690. Baron concedes that his attorney's failure to cooperate with pretrial proceedings was culpable, but contends that this culpability should not be imputed to him.

The Supreme Court has held in the context of a dismissal that litigants voluntarily choose their attorneys and cannot avoid the consequences of the acts or omissions of such agents. Link v. Wabash Railroad Co., 370 U.S. 626, 634 (1962). This court has consistently followed this principle. Anderson v. Air West, Inc., 542 F.2d 522, 526 (9th Cir. 1976) (dismissal for failure to prosecute); United Artists Corp. v. La Cage Aux Folles, Inc., 771 F.2d 1265, 1271 (9th Cir. 1985) (dismissal for failure to comply with discovery orders); Henderson v. Duncan, 779 F.2d 1421, 1424 n. 1 (9th Cir. 1986) (dismissal with prejudice for failure to submit a pretrial order).

It is true that we deal here with a default, rather than a dismissal. Generally, however, courts have considered dismissal and default symmetrical penalties and treated them the same with respect to the Link rule. United States v. Moradi, 673 F.2d 725, 728 (4th Cir. 1982); Hritz v. Woma Corporation, 732 F.2d 1178, 1182 (3rd Cir. 1984). We see no reason to question this equivalence of treatment for plaintiffs and defendants. This case accordingly is controlled by Link and our past decisions applying Link to justify sanctions of dismissal.

We have avoided strict application of the Link rule in the past where the litigants have not been in a genuinely voluntary position in choosing counsel, and where counsel's error does not amount to bad faith. Partlow v. Jewish Orphan's Home of Southern California, 645 F.2d 757, 760-61 (9th Cir. 1981); Anderson v. Air West, 542 F.2d 522, 526 (9th Cir. 1976). Neither of these considerations is present in the case at bar.

Because we find that Baron was culpable with respect to the omissions which caused the default, we need not reach the questions whether the motion for relief was timely or whether Baron averred a meritorious defense. The order of the district court is AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3