NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 7 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

E. B., by and with his parents Richard No. 17-56803 Briseno and Lorena Garcia; et al., D.C. No. 2:17-cv-00056-R-JC Plaintiffs-Appellants,

v. MEMORANDUM*

BALDWIN PARK UNIFIED SCHOOL

DISTRICT,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Manuel L. Real, District Judge, Presiding

Submitted May 14, 2019** Pasadena, California

Before: NGUYEN and OWENS, Circuit Judges, and ANTOON,*** District Judge.

Student E.B., by and with his parents Richard Briseno and Lorena Garcia

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable John Antoon II, United States District Judge for the Middle District of Florida, sitting by designation. (collectively, “E.B.”), appeals from the district court’s sua sponte dismissal of his

action under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et

seq., against Baldwin Park Unified School District. As the parties are familiar with

the facts, we do not recount them here. We have jurisdiction under 28 U.S.C.

§ 1291, and we reverse and remand.1

1. The district court abused its discretion in dismissing the action sua

sponte for lack of prosecution after E.B. did not appear at a pretrial conference.

See Oliva v. Sullivan, 958 F.2d 272, 274 (9th Cir. 1992) (providing the standard of

review). The district court failed to consider less drastic alternatives. See id. (“A

district court ‘abuses its discretion if it imposes a sanction of dismissal without first

considering the impact of the sanction and the adequacy of less drastic sanctions.’”

(citation omitted)). In addition, the district court failed to warn E.B. that dismissal

was imminent after E.B. missed filing deadlines. See id. (“The district judge has

an obligation to warn the plaintiff that dismissal is imminent.”). Accordingly, we

reverse and remand for further proceedings.

2. We do not consider E.B.’s argument that the district court erred in

denying his request for substitution of counsel because we lack jurisdiction to

review this order. See Al-Torki v. Kaempen, 78 F.3d 1381, 1386 (9th Cir. 1996)

1 We grant E.B.’s unopposed motion to include a nonrecord declaration in the excerpts of record (Dkt. No. 16).

2 (“[I]nterlocutory orders, generally appealable after final judgment, are not

appealable after a dismissal for failure to prosecute, ‘whether the failure to

prosecute is purposeful or is a result of negligence or mistake.’” (citation omitted)).

3. We grant E.B.’s request to reassign this case to a different district

judge. Reassignment is warranted here to “preserve the appearance of justice.”

Krechman v. County of Riverside, 723 F.3d 1104, 1112 (9th Cir. 2013) (citation

omitted). Thus, we instruct the Clerk of Court for the Central District of California

to reassign this case to a different district judge on remand.

REVERSED AND REMANDED.

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