Unpublished Disposition, 894 F.2d 410 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 894 F.2d 410 (9th Cir. 1989)

No. 88-2864.

United States Court of Appeals, Ninth Circuit.

Before WIGGINS and KOZINSKI, Circuit Judges, and WM. MATTHEW BYRNE, Jr., District Judge.** 


This appeal is one of several matters that have arisen from a 1981 labor dispute between the appellants, Sacramento Valley Chapter of the National Electrical Contractors Association (NECA) and its member contractors and the appellees, International Brotherhood of Electrical Workers (IBEW), and Local 340.1  Early in that year, the parties were attempting to negotiate a package labor agreement focusing on inside wiremen after a previous collective bargaining agreement expired. Negotiations were held between February and June, 1981, but proved fruitless. On June 11, Local 340 went on strike. The strike terminated on September 15, 1981.

NECA originally brought suit on July 24, 1981, seeking damages as a result of the strike. The plaintiffs amended their complaint several times. The most recent third amended complaint set forth five claims: (1) coercion of employees in violation of Secs. 303(a) and 8(b) (4) (A) and (B) of the National Labor Relations Act (NLRA), 29 U.S.C. §§ 158(b) (4), 187(a); (2) damages for the insertion of allegedly illegal "picket-line recognition" and "shoulder to shoulder" clauses in the proposed agreement and for the resulting strike in violation of Sec. 8(b) (4) (A) of the NLRA; (3) damages for the insertion of allegedly illegal "scope of work" clauses in the proposed agreement and for the resulting strike in violation of Sec. 8(b) (4) (A) and Sec. 8(e) of the NLRA; (4) damages for the insertion of an allegedly illegal "work preservation clause" in the proposed agreement and for the resulting strike in violation of Sec. 8(b) (4) (A) and Sec. 8(e) of the NLRA; (4) damages for the insertion of an allegedly illegal "work preservation clause" in the proposed agreement and for the resulting strike in violation of Sec. 8(b) (4) (A) and Sec. 8(e) of the NLRA; (5) coercion of certain employers causing their withdrawal from the multi-employer collective bargaining agreement scheme.

The parties filed cross motions for summary judgment on NECA's claims. After a hearing on June 3, 1986, the district court granted defendant summary judgment on claims one, two, four and five.2  Sacramento Valley NECA v. IBEW, 637 F. Supp. 1417, 1419 n. 1 (E.D. Cal. 1986) aff'd, No. 86-2026 (9th Cir. Oct. 18, 1989).

The district court then certified for interlocutory appeal the order granting summary judgment on the plaintiffs' second and fourth claims. The court stated that "the parties are directed to inform the court within ten (10) days of the effective date of the order of the court of appeals' disposition as to whether it will allow interlocutory appeal." Id at 1432. Further, in a footnote to the final paragraph of the order, the court directed that "the issue of whether IBEW International was an agent of Local 340 and is legally liable for conduct engaged in by Local 340 in furtherance of the strike is not addressed in this order. After disposition of the appeal, if any, plaintiffs are directed, within thirty (30) days of the effective date of this order to re-notice their motion on this issue on this court's regularly scheduled law and motion calendar. Said notice shall be accompanied by a letter brief summarizing plaintiffs' arguments and bringing to the court's attention any new cases...." Id. at 1432-33 n. 18.

On September 18, 1986, the Ninth Circuit denied the petition for interlocutory review. No party informed the district court of that decision and the plaintiffs did not renotice their motion regarding agency. Seventeen months later, in February, 1988, the district court set a hearing to determine the status of the case. Thereafter, both defendants moved to dismiss the case for failure to prosecute. The plaintiffs contended that they thought that the district court's order required them to inform the court of the disposition of the appeal after all appeals in the case were completed or after a motion to dismiss was determined in a related matter. The court granted defendants' motion to dismiss on the grounds that plaintiffs had delayed prosecution, lost interest in the case, and had no credible explanation for the failure to prosecute.

On June 16, 1988, the plaintiffs filed a notice of appeal. The notice listed the appellant as the "Sacramento Valley Chapter of the National Electrical Contractors Association, et al." The notice further stated that the appeal was "from the judgment granting dismissal for lack of prosecution issued by the Honorable Lawrence K. Karlton ... and entered on June 3, 1988." E.R. at 16. The briefs present arguments on behalf of all the plaintiffs below and also request this court to overturn the summary judgment order issued of June 3, 1986.

As a preliminary matter, the appellees present two challenges to the appeal. First, they argue that under Fed. R. App. P. 3(c) all parties, except those specifically stated in the notice of appeal, should be dismissed and, thus, only NECA is a party to this appeal. Second, the appellees maintain that the failure to mention the summary judgment order in the notice of appeal limits the issue before the court as to the propriety of the dismissal order.

Appellant listed only NECA as a party, followed by the phrase "et al." In Torres v. Oakland Scavenger Co., --- U.S. ---, 108 S. Ct. 2405, 2409 (1988), the Supreme Court held that a failure to name a party specifically in the notice of appeal, even though the notice listed one party followed with the term "et al.," did not meet the specificity requirements of Rule 3(c) and precluded that party from joining in the appeal. This court has also barred an appeal by a party not named in the notice of appeal except by the use of "et al." following another party's name. Meehan v. County of Los Angeles, 856 F.2d 102, 105 (9th Cir. 1988).

Torres and Meehan control this case. Thus, only NECA is a proper appellant.

In contrast to the naming of parties under Rule 3(c), this court employs a more relaxed standard in assessing whether the subject of an appeal was properly noticed. A two-part test is employed: (1) whether intent to appeal a specific judgment can be fairly inferred, and (2) whether the appellee is prejudiced or misled by the mistake. Meehan, supra, at 105; United States v. One 1977 Mercedes Benz, 708 F.2d 444, 451 (9th Cir. 1983), cert. denied, 464 U.S. 1071 (1984). Generally, a subject omitted from the notice of appeal will nevertheless be considered if the appellee had notice of the omitted issue and had the opportunity to brief the matter. Lynn v. Sheet Metal Workers' Int'l Assoc., 804 F.2d 1472, 1481 (9th Cir. 1986) aff'd, --- U.S. ----, 109 S. Ct. 639 (1989).

The appellees contend that the intent to appeal the summary judgment issue, which was not specifically mentioned in the notice of appeal, cannot be inferred here. The notice, they claim, was explicitly limited to the dismissal issue and thus the summary judgment order is not presented for appellate review.

In Lynn, the appellee was served with a copy of a brief in which a summary judgment issue omitted from the notice of appeal was fully discussed. The appellee briefed a full reply including the summary judgment issue. The court found that notice and intent to appeal the summary judgment issue could be inferred from these circumstances. 804 F.2d at 1481; see also, Meehan, 856 F.2d at 106.

In this case, the appellant served the appellees with opening briefs that raised the summary judgment issue. The appellees then filed a joint brief that fully responded to the summary judgment issue. Consequently, we find that both the dismissal and summary judgment orders are properly before us on this appeal. However, as discussed infra, because we affirm the order of dismissal, we do not reach the summary judgment challenge.

The granting of a motion to dismiss for lack of prosecution is reviewed for abuse of discretion. The decision below may be overturned only if the appellate court has a definite and firm conviction that the result was clearly outside the acceptable range of sanctions. Malone v. United States Postal Service, 833 F.2d 128, 130 (9thCir. 1987), cert. denied, --- U.S. ----, 109 S. Ct. 59 (1988).3 

Five factors are considered as to whether a dismissal sanction is appropriate:

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;

5. the availability of less drastic sanctions. Id.

The appellant contends that the district court failed to weigh the Malone factors adequately. In particular, it contends that the district court failed to consider properly the availability of less drastic alternatives and did not provide warnings that dismissal could occur for failure to prosecute.

We find that the district court adequately weighed the Malone criteria. Each of the five criteria is explicitly discussed in the order of dismissal. The court considered the public interest in expeditious litigation, the need to manage its docket, and the risk of prejudice to the appellees. The court found that the seventeen month delay severely hampered the ability of the parties to resolve this matter in a timely fashion and adversely affected the court's docket. Further, the court found that at least one key witness had died since the 1986 order, that many of the events of concern to the lawsuit, which arose in 1981, had become increasingly stale, and that given the bifurcation of the trial, yet another round of discovery would need to be taken to resolve the remaining issues. E.R. at 23.

The district court rejected the reasons advanced by the appellant to excuse its failure to prosecute the action or to inform the court of the resolution of the interlocutory appeal petition. The appellant first argued that its counsel, Thierman, might be called as a witness in a related RICO case. The court found that even if this were true, no logical connection existed between that fact and the appellant's decision to ignore a direct order regarding the prosecution of the instant case.

The appellant next contended that because the appellees also had not told the court of the denial of the interlocutory appeal, both sides were equally guilty of neglect. The court correctly observed, however, that because the sole remaining claims in the case were all being advanced by the appellant, the burden of obeying an order regarding the prosecution of a case fell much more heavily on the appellant. See E.R. at 25 distinguishing Tinnerman Products, Inc. v. George Garrett Co., 22 F.R.D. 56 (E.D. Pa. 1958).

Appellant also contends that it was reasonable to interpret the court's order to require notice only after all appeals in all related cases were disposed of. The trial court rejected this contention and found that the plain language of its order required notice to the court after the disposition of the summary judgment interlocutory appeal. E.R. at 26.

We find that the district court's articulation and application of the first three criteria for dismissal enunciated in Malone was proper.

Further, we find that the district court correctly observed that although the fourth Malone criterion, the policy favoring resolution of cases on their merits, did weigh against dismissal by definition, this factor alone does not outweigh all of the other factors if dismissal is otherwise proper. See Malone, 833 F.2d at 133 n. 2.

Finally, the district court adequately considered whether less drastic alternatives than dismissal were available. The court properly recognized that this issue involved three basic considerations: (1) whether the court explicitly discussed alternative sanctions and explained why they would be inadequate; (2) whether the court implemented alternative methods of sanctioning or curing the malfeasance before ordering dismissal; and (3) whether the court warned the plaintiff. Malone, 833 F.2d at 132. Alternatives to dismissal could include giving a warning, placing the case at the bottom of the court's calendar, fining the parties, imposing costs or attorney's fees, suspending counsel or precluding certain claims or defenses. Id at 132 n. 1.

The district court found that none of the possible alternatives would be adequate in this case. The delay of seventeen months, it found, was so prejudicial to the orderly adjudication of the case that only dismissal was appropriate. E.R. at 28. No monetary or other sanctions would undo "the violence already done to the trial process." Id. Further, the court found that a warning was unnecessary in this case because Local Rule 110 of the Eastern District expressly provided for dismissal when counsel failed to obey an order of the court. Thus, a warning was superfluous. E.R. at 29.

We find nothing in the court's discussion to warrant reappraisal of its findings and thus conclude that the Malone criteria were properly applied.

The appellant nevertheless maintains that the district court's order was an abuse of discretion because less drastic sanctions were not imposed. The appellant's authority, however, is limited to cases in which the trial court never addressed any alternatives in dismissing a case for failure to prosecute or to obey an order. See, e.g., Mir v. Fosburg, 706 F.2d 916, 919 (9th Cir. 1983) (dismissal for failure to update interrogatories for 12 months reversed because no showing of any prejudice to any party, including court); Hamilton v. Neptune Orient Lines, Ltd., 811 F.2d 498, 500 (9th Cir. 1987) (dismissal for failure to prosecute personal injury action due to lack of coordination between plaintiff and his attorneys for three years reversed because no warning was given plaintiff that problems with counsel could lead to dismissal and because no other alternatives considered).

Mir does not control here because the district court did find that the failure to prosecute created prejudice and alternatives were expressly considered and rejected. Hamilton is limited to cases in which a delay is occasioned by disputes between a plaintiff and his attorneys and held that prior to dismissing a case where counsel and a party are not able to function well together, a warning should be given. 811 F.2d at 500. In this case, however, the delay resulted from counsel disobeying an express order of the court rather than due to disputes between counsel and client. Thus, the concerns articulated in Hamilton are inapposite.

We find that the district court's dismissal of this action was well within its discretion and the decision to dismiss is affirmed.

In light of our decision to affirm the district court's dismissal of the action below, we do not reach the appellant's summary judgment appeal. The parties conceded in oral arguments that the dismissal encompassed the entire action between them. The dismissal effectively terminated the litigation as to all matters. Consequently, the propriety of the district court's summary judgment order is moot.

The court holds that appellant NECA is the only proper party to this appeal, but that the subject matter of the appeal is not limited solely to the dismissal order. The district court's dismissal of the entire case is affirmed. Thus, the issues pertaining to the summary judgment order are moot in this appeal.



Hon. Wm. Matthew Byrne, Jr., United States District Judge for the Central District of California, sitting by designation


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


The plaintiffs originally moved for class certification which was denied. The case therefore proceeded on behalf of the employer's organization, NECA, and ten individual members of NECA. NECA is the multi-employer bargaining group that represented the employers in negotiations with the IBEW


Claim three was not affected by the ruling because the parties conceded that factual disputes precluding summary judgment existed with respect to that claim

The first and fifth claims were dismissed without substantial opposition from the plaintiff and are not the subject of this appeal. Sacramento Valley NECA v. IBEW, 637 F. Supp. 1417, 1419 n. 1 (E.D. Cal. 1986).


Malone concerned a dismissal for failure to comply with a pretrial order. Here, the parties often confuse the issue of whether the court dismissed the plaintiffs' claim for lack of prosecution or because the plaintiffs did not comply with the order regarding notice, which is in violation of a pretrial order. It is clear from the May 16, 1988 order however, that the dismissal was granted for failure to prosecute, and that the failure to comply with the court's order was a part of the more general failure to prosecute