Unpublished Disposition, 927 F.2d 609 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 927 F.2d 609 (9th Cir. 1989)

No. 89-15517.

United States Court of Appeals, Ninth Circuit.

Appeal from the United States District Court for the Northern District of California, No. CV 84-20129-SW; Spencer W. Williams, District Judge, Presiding.

N.D. Cal.


Before D.W. NELSON and TROTT, Circuit Judges, and STEPHENS,*  District Judge.


Plaintiff appeals the dismissal with prejudice of his suit under the Freedom of Information Act, 5 U.S.C. § 552 (1988), and the award of $981.30 in attorneys' fees to one of the defendants. We affirm the dismissal, but reverse the award of fees.


Plaintiff is a journalist investigating the Food and Drug Administration's ("FDA") regulation of medical devices. He has been researching the agency's approval of the St. Jude Medical artificial heart value. Defendants are the Department of Health and Human Services ("DHHS"), which oversees the FDA, and St. Jude Medical, Inc. ("St. Jude"), the developer of the St. Jude heart valve.

On February 27, 1984, plaintiff filed a complaint under the Freedom of Information Act to compel the DHHS to produce documents concerning the approval of the St. Jude heart valve. Initially, the court scheduled a discovery deadline of September 14, 1984, a pretrial motion deadline of October 22, 1984, and a trial date of November 19, 1984. On June 20, 1984, St. Jude moved to intervene as a defendant.

Plaintiff filed two sets of interrogatories, to which defendants responded promptly. In one instance, plaintiff filed interrogatories three days before the discovery deadline. He claimed his impression of "deadline" was that all requests had to be made before that date, not that all responses were to be made by that date.

In addition, plaintiff deposed an individual by the name of Glenn Rahmoeller. Defendants successfully moved to protect this deposition.

Otherwise, this action has consisted of a series of continuances:

1) On June 25, 1984, plaintiff's motion to safeguard documents was moved off calendar.

2) On October 9, 1984, the discovery deadline was extended to November 30, 1984, pretrial motions were continued to January 14, 1985, and trial was continued until February 19, 1985.

3) On October 10, 1984, a motion set for October 22, 1984 was continued to November 12, 1984.

4) On December 13, 1984, a motion set for December 12, 1984 was continued until March 1, 1985, and was then reset for May 3, 1985.

5) On August 29, 1985, a status conference set for August 23, 1985 was continued until November 15, 1985, and was continued again on that date until March 21, 1986.

6) On March 21, 1986, the discovery deadline was extended until July 1, 1986, a pretrial conference was continued until February 16, 1987, and the trial was continued until March 9, 1987.

7) On June 30, 1986, plaintiff moved to extend the discovery deadline, with a hearing set for August 8, 1986, and thereafter continued until August 13, 1986.

8) On July 25, 1986, defendants moved to dismiss for failure to prosecute.

9) On August 13, 1986, the motion to dismiss was denied.

10) On December 9, 1986, a motion set for December 10, 1986 was continued until January 28, 1987.

11) On January 28, 1987, the pretrial and trial dates were vacated and not reset. A hearing was held on the parties' cross-motions for summary judgment. The court and parties agreed that an expert should be appointed to examine the documents in camera and make a determination as to whether plaintiff could compel their production under the Freedom of Information Act. Plaintiff was to select the expert.

12) On April 3, 1987, a telephone status conference set for March 11, 1987 was continued to June 24, 1987.

13) A meeting with an expert scheduled in September 1987 was not held and was not rescheduled.

At this point, defendants moved again to dismiss the case for failure to prosecute. On October 5, 1988, the district court held a hearing on the motion to dismiss. On November 10, 1988, the court dismissed the action and awarded St. Jude $981.30 in attorneys' fees to cover the expense of preparing for the aborted September 1987 meeting. On November 17, 1988, plaintiff filed a motion for reconsideration under Fed. R. Civ. P. 59, which was denied on February 14, 1989. Plaintiff timely appeals, arguing the penalty of dismissal was too harsh under the facts of this case. Plaintiff also contests the award of attorneys' fees.



We review for an abuse of discretion the district court's dismissal for failure to prosecute under Fed. R. Civ. P. 41(b). Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986) (citation omitted). Accordingly, we will uphold the district court's decision unless we are left with a definite and firm conviction that it committed a clear error in judgment.

A district court has the power to dismiss a case for failure to prosecute pursuant to Rule 41(b), either by motion of defendant or sua sponte. Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984), cert. denied, 470 U.S. 1007 (1985). However, dismissal is a harsh penalty to be imposed only in extreme circumstances, and it must be supported by a showing of "unreasonable delay." Henderson, 779 F.2d at 1423 (citations omitted).

In determining whether a delay is unreasonable, the district court must weigh several factors: (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 from delay; (4) the public policy favoring disposition of cases on the merits; and (5) the availability of less drastic sanctions. Henderson, 779 F.2d at 1423; Ash, 739 F.2d at 496. Other factors include the plaintiff's diligence and the existence of a previous warning to the party occasioning the delay. West Coast Theater Corp. v. City of Portland, 897 F.2d 1519, 1523 (9th Cir. 1990) (citing Hamilton v. Neptune Orient Lines, Ltd., 811 F.2d 498, 499 (9th Cir. 1987)).

Deference is given to the district court because it is in the best position to determine what period of delay can be endured before its docket becomes unmanageable. Henderson, 779 F.2d at 1423; Ash, 739 F.2d at 496. In the present case, the district court did not make explicit findings to show it considered the above factors. On appeal, we must review the record independently with these factors in mind to determine whether the court abused its discretion. Henderson, 779 F.2d at 1424; Ash, 739 F.2d at 496.

Upon review of the record, we conclude dismissal with prejudice was an appropriate penalty given the facts of the case. Plaintiff filed his complaint on February 27, 1984, and it is fair to say that as of November 10, 1988--the day the complaint was dismissed with prejudice--his case had gone virtually nowhere. The record reveals unmistakably that plaintiff was responsible for this inaction. Plaintiff's explanations and excuses are unsatisfactory. Counsel was on notice that he was skating on the edge of a Rule 41(b) dismissal, but he took no steps to move his case towards resolution. On March 21, 1986, two years after the complaint was filed, when the case had become inert, the district judge properly asked counsel why he should not dismiss the case for non-prosecution. Counsel's denial that this was a "warning"--because the judge was satisfied with his "explanation" and did not dismiss the case--does a disservice to the judge, who did everything he could to expedite the case and allow plaintiff his day in court. Moreover, five months later, on August 13, 1986, another judge assigned to the case stated counsel's performance warranted dismissal under Rule 41(b), but that he would let the case go forward in the interest of having it resolved on the merits.1  The judge then put the ball in the plaintiff's court: he instructed plaintiff and his counsel to find an expert witness who could analyze the requested documents in camera to determine whether they should be disclosed. Nineteen months later, they had still not performed this task. When this came to the judge's attention, he listened patiently to counsel's excuses but understandably was unmoved.

The Henderson factors are all abundantly present: unreasonable delay, docket unmanageability, lack of diligence, notice to counsel, and at least one rejection by the district court of the harsh sanction of dismissal. Prejudice to St. Jude is also evident. As a result of the delay, St. Jude incurred unnecessary expenses. In addition, with the passage of time, several of its employees who were important witnesses resigned, making it more difficult to obtain their testimony. Under the circumstances, we are not left with a definite and firm conviction that the district court committed a clear error in judgment.

A district court's interpretation of the exceptions to the American Rule, which ordinarily precludes an award of attorneys' fees, is subject to de novo review. Perry v. O'Donnell, 759 F.2d 702, 704 (9th Cir. 1985). If the district court applied the correct legal standard, we review for an abuse of discretion its decision to award fees, and its determination of the amount of the award. Id.

The Supreme Court has established specific guidelines for awarding attorneys' fees. In Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240 (1975), the Court reaffirmed the "American Rule" that each party generally must bear the expense of its own attorneys. The American Rule does not apply in the following circumstances: (1) where a statute expressly authorizes an award of fees; (2) where there is evidence of bad faith or abusive litigation; (3) where there has been willful disobedience of a court order; and (4) in common fund cases. Id at 257-59. No other exceptions exist. See, e.g., Zambrano v. City of Tustin, 885 F.2d 1473, 1481-82 (9th Cir. 1989).

In the instant case, the district court awarded St. Jude $981.30 in attorneys' fees. No exception to the American Rule is present to justify this award. First, there is no statutory authority for an award of fees. Second, the district court did not indicate plaintiff acted in bad faith or was willfully disobedient, nor does the record show plaintiff engaged in such conduct. Finally, this case does not involve a common fund.

The district court did not abuse its discretion in dismissing plaintiff's complaint for failure to prosecute. We vacate the district court's award of attorneys' fees, however, because no exception to the American Rule applies here.

The parties shall bear their own costs of this appeal.



The Honorable Albert Lee Stephens, Jr., Chief Judge Emeritus, 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 Ninth Circuit Rule 36-3


This satisfies the Henderson requirement that the district court should search for a less drastic sanction before dismissing the suit. It was a "constructive intermediate step" dealing with dilatory practices. Henderson, 779 F.2d at 1424. See also Malone v. United States Postal Service, 833 F.2d 128, 132 (9th Cir. 1987), cert. denied, 488 U.S. 819 (1988) (" [E]xplicit discussion of alternatives is unnecessary if the district court actually tries alternatives before employing the ultimate sanction of dismissal.")


At oral argument in the district court, the court indicated it was imposing "sanctions of $981.30 to collect from the plaintiff to reimburse St. Jude's attorneys [sic] fees." While a district court has the authority to impose monetary sanctions against an attorney for misconduct, see Fed. R. Civ. P. 11, 28 U.S.C. § 1927 (1988), Roadway Express, Inc. v. Piper, 447 U.S. 752, 766 (1980), we believe the court was attempting to impose attorneys' fees against plaintiff, not attempting to sanction plaintiff's counsel