NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 29 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 16-17274

PIMA COUNTY OFFICE OF

CHILDREN’S COUNSEL, et al., D.C. No. 2:15-cv-00272-SPL

Plaintiffs-Appellants,

MEMORANDUM*

v.

STATE OF ARIZONA, et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Arizona Steven Paul Logan, District Judge, Presiding

Argued and Submitted March 16, 2018 San Francisco, California

Before: PAEZ and IKUTA, Circuit Judges, and ADELMAN,** District Judge.

The plaintiffs allege that Arizona’s Department of Child Protective Services

wrongfully removed a child, A.E., from his father’s home and placed him in foster

care, where he was sexually molested by another foster child and subjected to other

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Lynn S. Adelman, United States District Judge for the Eastern District of Wisconsin, sitting by designation. harm. During discovery, the plaintiffs stopped participating in the case, mostly

because their counsel was experiencing personal problems that led to his

neglecting the case. After the plaintiffs had been inactive for three months, the

defendants moved to dismiss for lack of prosecution. The plaintiffs opposed the

motion and requested that the court stay the case for a limited period while they

tried to retain substitute counsel. The district court granted the defendants’ motion

and dismissed the case with prejudice for lack of prosecution. The plaintiffs

appeal, and we review for abuse of discretion. See, e.g., Henderson v. Duncan,

779 F.2d 1421, 1423 (9th Cir. 1986).

We reverse and remand for further proceedings. Although the district court

applied the five Henderson factors, it did not fully explore the adequacy of lesser

sanctions before imposing the “harsh” sanction of dismissal with prejudice, which

should be employed only in “extreme circumstances.” Id. at 1423; see also

Hamilton Copper & Steel Corp. v. Primary Steel, Inc., 898 F.2d 1428, 1430–31

(9th Cir. 1990); Malone v. U.S. Postal Serv., 833 F.2d 128, 131–32 (9th Cir. 1987).

In this case, the plaintiffs’ delay was primarily caused by plaintiffs’ counsel’s

neglect. At the time of the dismissal, plaintiffs’ counsel was trying to withdraw

and find substitute counsel who could prosecute the case. The district court could

have dismissed the case without prejudice to allow the plaintiffs time to find new

counsel and refile the case before the statute of limitations ran out. Alternatively,

2 the court could have stayed the case for a reasonable period while the plaintiffs

attempted to secure new counsel. The district court did not explain why—and the

record does not show that—these options, or some other sanction short of dismissal

with prejudice, would have been insufficient to get the case back on track.

Plaintiffs’ inattention to the case may have caused some prejudice to the

defendants, and to the public’s interest in expeditious resolution of the litigation

and the court’s need to manage its docket. However, the record does not reveal

that the prejudice was so great as to make dismissal with prejudice an appropriate

sanction. On this record, we do not see how a delay of only a few months could

have posed a serious threat to the district court’s docket or to the public’s interest

in expediency. As for prejudice to the defendants, the case had not progressed far

beyond written discovery, and any discovery that was taken could have been

preserved and reused in the event that the plaintiffs resumed litigating after

securing new counsel. Defendant Tungland Corporation had filed a motion for

summary judgment, but the district court could have decided the motion before

dismissing the claims against the remaining defendants without prejudice.

Although A.E. and his father did not appear for their depositions, and A.E. did not

appear for his psychological examination, these missteps alone would not warrant

a dismissal with prejudice absent a showing that lesser sanctions, such as cost- and

fee-shifting, see Fed. R. Civ. P. 37(b)(2)(C) & (d)(3), would have been inadequate.

3 The defendants contend they suffered prejudice in the form of witnesses

moving out of state and their memories fading. But this form of prejudice is not

fairly attributable to undue delay by the plaintiffs, as the statute of limitations on

A.E.’s claims will not expire until he turns 20 years old. See Ariz. Rev. Stat.

§§ 12-502, 12-542. Because A.E. could have waited until he was 20 to bring his

claims in the first place, his failure to preserve witness testimony during a suit

brought when he was younger does not support dismissal with prejudice rather

than lesser sanctions.

For these reasons, we reverse and remand with instructions to impose a

sanction other than dismissal with prejudice.

REVERSED AND REMANDED.

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FILED

Pima County v. Arizona, No. 16-17274

MAR 29 2018

Ikuta, J., dissenting

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

In deciding to dismiss this case with prejudice for failure to prosecute, the

district court set forth its reasoning regarding each of the five factors we have held

to be relevant under Henderson v. Duncan, 779 F.2d 1421 (9th Cir. 1986): “the

public’s interest in expeditious resolution of litigation; the court’s need to manage

its docket; the risk of prejudice to the defendants; the public policy favoring the

disposition of cases on their merits; and the availability of less drastic sanctions.”

In re Phenylpropanolamine (PPA) Products Liab. Litig. (In re PPA), 460 F.3d

1217, 1222 (9th Cir. 2006). The district court’s conclusions were not illogical or

implausible, and were well supported by the record. See United States v. Hinkson,

585 F.3d 1247, 1251 (9th Cir. 2009). Accordingly, the district court did not abuse

its discretion in dismissing the case under Rule 41(b) of the Federal Rules of Civil

Procedure.

In holding otherwise, the majority focuses primarily on a single factor,

claiming that the district court failed to consider whether there were less drastic

sanctions to dismissal with prejudice. Maj. at 2–3. Contrary to this conclusion,

the district court adequately addressed the aspects of this issue that we consider

important. See In re PPA, 460 F.3d at 1228–29. The district court issued its ruling

in response to defendants’ noticed motion to dismiss, and we have “rejected the argument that an express warning regarding the possibility of dismissal is a

prerequisite to a Rule 41(b) dismissal when dismissal follows a noticed motion

under Rule 41(b).” Moneymaker v. CoBen (In re Eisen), 31 F.3d 1447, 1455 (9th

Cir. 1994). Although “explicit discussion of alternatives is not necessary for a

dismissal order to be upheld,” In re PPA, 460 F.3d at 1229, the court had before it

the alternatives discussed in the parties’ briefing on the motion to dismiss, see

Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir. 1991); and also

acknowledged that “dismissal without prejudice is available.” But the court found

that dismissal without prejudice was not “appropriate under the circumstances” and

“undertaking any lesser measure” than dismissal with prejudice “would be

unavailing,” given plaintiff’s continued inaction and failure to appear for

depositions and an independent psychological evaluation.

Nor did the district court err in its consideration of the other Henderson

factors. We are required to defer to the district court’s judgment that the need to

manage its docket and the public interest in expediency weighed heavily in favor

of dismissal, “since it knows when its docket may become unmanageable.” In re

PPA, 460 F.3d at 1227 (quoting In re Eisen, 31 F.3d at 1452). The majority

characterizes the delay as only a few months, Maj. at 3, but the district court found

that the case was “indefinitely stalled,” noting that plaintiffs had sought yet another

2 stay in response to the motion to dismiss and “continue[d] to demonstrate that they

[we]re not prepared to move forward.” The district court further noted that, given

plaintiffs’ inability “to prosecute this action in any meaningful way,” allowing the

case to proceed was unlikely to serve the public’s interest in disposition on the

merits.

Our precedent also dictates that “[t]he district court’s finding of prejudice

deserves substantial deference because the district court is in the best position to

assess prejudice.” Id. at 1228 (internal quotation marks and citation omitted). The

court noted that the delay caused actual prejudice to the defendants, including loss

of evidence and memory, see In re Eisen, 31 F.3d at 1453, as witnesses moved out

of state and one key witness had cognitive difficulties. The majority’s conclusion

that there was no prejudice because written discovery could have been preserved

contradicts our observation that “[f]ailing to produce documents as ordered is

considered sufficient prejudice” to support dismissal with prejudice and that “[l]ate

tender is no excuse.” In re PPA, 460 F.3d at 1227. And contrary to the majority,

Maj. at 4, once an action has commenced, Rule 41(b) requires “prosecution with

‘reasonable diligence’ if a plaintiff is to avoid dismissal,” Anderson v. Air West,

Inc., 542 F.2d 522, 524 (9th Cir. 1976) (citation omitted), regardless whether the

statute of limitations has not yet run. Our cases have not asked whether the

3 limitations period has expired, but rather, have instructed that “[t]he law . . .

presumes prejudice from unreasonable delay,” In re PPA, 460 F.3d at 1227, and if

the defendant shows actual prejudice, “the plaintiff must persuade the court that the

claims of prejudice are illusory or relatively insignificant in light of [plaintiff’s]

excuse” for the delay, id. at 1228.

We give substantial deference to a district court’s conclusions, even if we

would have taken a different course under the circumstances. Here the district

court directly tracked the framework set forth in our precedent and made the

findings necessary to dismiss with prejudice for failing to prosecute. We should

uphold its ruling. Accordingly, I dissent.

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