Unpublished Disposition, 934 F.2d 324 (9th Cir. 1991)Annotate this Case
Daniel SERRANO, Plaintiff,andErnest C. Chen, Esq., and John D. BARNETT, Esq., Appellants,v.CITY OF ORANGE, et al., Defendant-Appellee.
United States Court of Appeals, Ninth Circuit.
Submitted May 15, 1991.* Decided May 31, 1991.
Before PREGERSON, BRUNETTI and THOMAS G. NELSON, Circuit Judges.
Ernest Chen and John Barnett, counsel for Daniel Serrano and Roy DeHerrera, appeal the district court's order imposing monetary sanctions for the failure of DeHerrera to appear at a deposition in their civil rights action against the City of Orange.
The appellants take far too narrow a view of Federal Rules of Civil Procedure 37(b) (2). As a commonly used treatise explains:
Rule 37 is flexible. The court is directed to make such orders "as are just" and is not limited in any case of disregard of the discovery rules or court orders under them to a stereotyped response. The sanctions enumerated in the rule are not exclusive and arbitrary but flexible, selective, and plural. The court may, within reason, use as many and as varied sanctions as are necessary to hold the scales of justice even.
8 WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL Sec. 2284, at 764 (1970).
Sanctions are appropriate not only as compensation to the opposing party but as deterrence against future abusive practices. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643 (1976). The district court was best able to gauge the attitudes and actions of the parties. The district court had discretion to award reasonable sanctions, and did not abuse that discretion here.
Federal Rule of Appellate Procedure 38 provides: "If a court of appeals shall determine that an appeal is frivolous, it may award just damages and single or double costs to the appellee." Such sanctions are appropriate in this case. The law is patently clear. The district court has wide discretion in imposing sanctions and the appellants are presumed to be capable of conducting the minimal research necessary to be aware of the district court's authority. We award to the appellee's attorneys fees and double costs associated with this frivolous appeal.