Unpublished Disposition, 933 F.2d 1014 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 933 F.2d 1014 (9th Cir. 1989)

Richard Thomas MANDELL, Plaintiff-Appellant,v.AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC.,Adams, Duque & Hazeltine,, Defendants-Appellees.

No. 90-55577.

United States Court of Appeals, Ninth Circuit.

Submitted May 9, 1991.* Decided May 13, 1991.

Before JAMES R. BROWNING, GOODWIN and POOLE, Circuit Judges.


Richard Thomas Mandell appeals pro se the district court's dismissal of his Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961-1968, action against American Express Travel Related Services Company, Inc. and the Law Firm of Adams, Duque & Hazeltine (collectively "American Express") for failure to timely file a second amended complaint and failure to allege a RICO enterprise. Mandell also appeals the district court's denial of his Rule 59(e) motion. Mandell contends that the complaint was timely filed and the RICO enterprise was adequately pleaded. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

* Failure to Timely File Second Amended Complaint

We review a motion to dismiss for failure to timely file an amended complaint for abuse of discretion. Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987). We construe such a dismissal as one pursuant to Fed. R. Civ. P. 41(b) for failure to comply with an order of the court. See id. The trial court's dismissal should not be disturbed unless there is "a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors." Id. (quotations omitted). The relevant factors include "(1) the public's interest in expeditious resolution of litigation; (2) the trial 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." Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (per curiam).

Here, the district court order, dated October 31, 1989, provided: " [p]laintiff shall have thirty days from the date of this order to amend the complaint in accordance with this order." The order was filed November 1, 1989 and entered November 3, 1989. Mandell filed his amended complaint on December 6, 1989.

Mandell argues that under Fed. R. Civ. P. 6(e) he was entitled to an additional three days because notice of the order was accomplished by mail. Rule 6(e) provides:

Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served upon the party by mail, 3 days shall be added to the prescribed period.

Mandell argues that with the additional three days, his second amended complaint was timely.

Here, the district court order required Mandell to file his amended complaint within thirty days of the date of the order, not within thirty days of service of the order. Thus, Rule 6(e) is inapplicable to extend the time for filing. Accordingly, the district court did not abuse its discretion in dismissing Mandell's complaint for failure to comply with a court order regarding timely filing of a second amended complaint. See Eldridge, 832 F.2d at 1136.1 


Denial of Rule 59(e) Motion

A district court's decision concerning a motion for a new trial pursuant to Rule 59(e) is reviewed for an abuse of discretion. Hard v. Burlington N.R.R., 812 F.2d 482, 483 (9th Cir. 1987); Swimmer v. IRS, 811 F.2d 1343, 1345 (9th Cir. 1987). Here, Mandell failed to present any new issues of fact or law in his motion to alter or amend the judgment. Rather, he argued that he should have been given additional time to file his second amended complaint because he was pro se and because he was in a halfway house at the time.

The pleadings of pro se plaintiffs are to be construed liberally. Eldridge, 832 F.2d at 1137. However, even pro se plaintiffs must comply with the rules. Swimmer v. IRS, 811 F.2d 1343, 1345 (9th Cir. 1987) (affirming summary judgment where pro se plaintiff failed to timely respond to defendant's motion for summary judgment). Mandell's pro se status does not exempt him from complying with a court order, and here the court gave Mandell clear and explicit instructions in light of his pro se status.

Further, the fact that Mandell was in a halfway house does not excuse his late filing. Mandell was in a halfway house throughout the proceedings in district court, and it in no way affected his ability to appear in court or file papers in court. Accordingly, the district court did not abuse its discretion in denying Mandell's Rule 59(e) motion. See Swimmer, 811 F.2d at 1345.


Sanctions on Appeal

American Express requests sanctions against Mandell for bringing this appeal. This court has discretion to impose damages against litigants, even pro se, as a sanction for bringing a frivolous appeal. Fed. R. App. P. 38; 28 U.S.C. § 1912; Wilcox v. Commissioner, 848 F.2d 1007, 1008-09 (9th Cir. 1988) ($1,500 sanction imposed on pro se litigant for bringing a frivolous appeal). An appeal is frivolous if the results are obvious or the arguments of error are wholly without merit. Id. at 1009 (citation omitted). Mandell's claims are wholly without merit. In the exercise of our discretion, however, we decline to award sanctions on appeal to American Express.



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 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 9th Cir.R. 36-3


Because we find that the district court correctly dismissed the action for failure to timely file a second amended complaint, we need not reach the issue of whether the second amended complaint adequately pleaded a RICO enterprise

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