Unpublished Disposition, 935 F.2d 273 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 935 F.2d 273 (9th Cir. 1991)

CREST SYSTEMS INC., an Arizona corporation, Plaintiff-Appellant,v.IPS SYSTEMS INC., a Texas corporation, Defendant-Appellee.

No. 89-16729.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 4, 1991.Decided June 13, 1991.

Before HUG, ALARCON and WIGGINS, Circuit Judges.


Crest Systems, Inc. appeals the district court's order dismissing with prejudice its lawsuit against IPS Systems, Inc. for failure to prosecute under Federal Rule of Civil Procedure 41(b). Crest also appeals the court's denial of its motions to alter or amend judgment, or grant a new trial, Fed. R. Civ. P. 59, and to grant it relief from judgment, Fed. R. Civ. P. 60(b). In light of the statements of Attorney Steffey that he was unable to secure the cooperation of--or even to locate--the president of his client corporation, we affirm the dismissal.


We review a dismissal with prejudice under Rule 41(b) for an abuse of discretion. Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987), cert. denied, 488 U.S. 819 (1988). We must decide whether we have a definite and firm conviction that the judge's decision to dismiss the case was a clear error of judgment. Id.; Malone, 833 F.2d at 130; Chism v. Nat'l Heritage Life Ins. Co., 637 F.2d 1328, 1331 (9th Cir. 1981), overruled on different grounds, Bryant v. Ford Motor Co., 844 F.2d 602 (9th Cir. 1987) (en banc).

1. Failure to consider less severe alternatives

Crest first argues the judge erred in ordering dismissal without considering and implementing less drastic sanctions. While we prefer that district courts discuss lesser alternatives when ordering dismissal, Malone, 833 F.2d at 132, we have "never held that explicit discussion of alternatives is necessary for an order of dismissal to be upheld." Id. (emphasis in original); see also U.S. for Use of Wiltec Guam v. Kahaluu Const., 857 F.2d 600, 604 (9th Cir. 1988) ("where it is clear that no other alternative would have been reasonable, we may affirm a dismissal ... despite the absence of such a discussion").

The judge's questioning of Attorney Steffey at the July 14 status conference indicated that Crest's past failings were largely due to Mr. Shaw's absence. Steffey told the court that he could not respond to discovery requests or proceed to trial without Mr. Shaw, that he had not spoken with Mr. Shaw in at least three months, and that he did not know where Mr. Shaw was. Given the seemingly irremediable nature of Crest's problems, any lesser sanction was likely to prove ineffective, and "it was reasonable for the district court to conclude that the future held only the prospect of continued improprieties by [Crest]." Chism, 637 F.2d at 1332; see also Henderson, 779 F.2d at 1424 ("history of counsel's actions ... forecloses any assumption that a new extension would be fruitful"). The judge's order was not an abuse of discretion on the ground that he failed to consider alternatives.

2. Failure to warn of possibility of dismissal

Crest argues that it was error for the district court to order dismissal without first warning that it was contemplating such action. In Malone, we held that such a warning was unnecessary, stating: "A plaintiff can hardly be surprised by a harsh sanction in response to willful violation of a pretrial order. Rules 16(f) and 41(b) explicitly state that dismissal may be ordered for violation of a court order." Malone, 833 F.2d at 133. Here, too, Crest violated the court's order setting a deadline for completing discovery and filing a pretrial order. Only after that date passed did Crest move for an extension of that deadline. Moreover, Steffey, no less than the attorney in Malone, is assumed to be aware of the provisions of the Federal Rules of Civil Procedure and the local rules. The judge's order was authorized by Rule 41(b) and Local Rule 42(E). Crest cannot avoid the impact of these rules by pleading ignorant of the sanctions they authorize.

Crest next argues that the dismissal was an abuse of discretion because it did not cause an unreasonable delay and because IPS was not prejudiced by its actions. While we have stated that a "dismissal for lack of prosecution must be supported by a showing of unreasonable delay," Henderson, 779 F.2d at 1423, there is no rule establishing a minimum period of time before which dismissal is inappropriate. The relatively short period of delay in this case was unreasonable in light of the fact that "the future held only the prospect of continued improprieties." Chism, 637 F.2d at 1332. Also, IPS was seriously prejudiced by Crest's unwillingness and/or inability to cooperate with the discovery process and preparation of the pretrial order. IPS repeatedly reminded Crest that it needed the information sought in the discovery requests, and IPS eventually drafted a pretrial order without that information in the hopes of motivating Crest to respond. Crest's stonewalling, combined with its attempt to dismiss the case voluntarily, prejudiced IPS's ability to prepare for trial, and the district court did not abuse its discretion by responding with the dismissal order.

Crest argues that it was an abuse of discretion for the judge to dismiss this suit because the improprieties leading to the dismissal were the fault of counsel, and not the client. We have repeatedly rejected that argument. Henderson, 779 F.2d at 1424, n. 1; Chism, 637 F.2d at 1332; Malone, 833 F.2d at 134. These cases unequivocally establish the proposition that clients are responsible for the delinquencies and shortcomings of their chosen counsel. Especially given Mr. Shaw's bizarre, unexplained lack of cooperation, Crest cannot argue that poor lawyering alone is to blame for the dismissal order.

5. District court's non-compliance with its local rules

Lastly, Crest argues that the district court abused its discretion in dismissing this case because it did not comply with Rule 38 of the Local Rules of the District Court of Arizona. We addressed just such an argument in Henderson. There, the appellant noted that the local rule authorizing dismissal required a showing of bad faith. We rejected this challenge, noting that whatever the local rule required, "no such showing is required under the court's inherent power to dismiss for lack of prosecution under Fed. R. Civ. P. 41(b)." Henderson, 779 F.2d at 1425. The same reasoning applies here.


After the dismissal, Crest replaced Mr. Steffey with new counsel and filed a motion to set aside or to amend the judgment, or, in the alternative, for a new trial. We review rulings on motions under Rules 59 and 60 for an abuse of discretion. Thompson v. Housing Auth. of City of Los Angeles, 782 F.2d 829, 832 (9th Cir. 1986), cert. denied, 479 U.S. 829 (1986) (Fed. R. Civ. P. 60); Hard v. Burlington Northern R.R., 812 F.2d 482, 483 (9th Cir. 1987) (Fed. R. Civ. P. 59). The only serious new issue raised by these motions was the assertion in Steffey's affidavit that he was mistaken about Mr. Shaw's importance to the lawsuit. The district court found, however, that because Crest refused to permit Steffey to testify in deposition about those assertions, it had no way of determining whether the affidavit is factually correct. Lacking such evidence, the district court was left to rely on bald factual assertions. As such, Crest did not carry its burden of persuading the judge that relief from the judgment or a new trial was warranted, and he did not abuse his discretion in denying the motions.

IPS's motion for sanctions is denied. The district court did not abuse its discretion either in dismissing the case with prejudice or in denying the post-dismissal motions, and so we AFFIRM.


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