Ann J. Malone v. United States Postal Service, an Agency of the United States

833 F.2d 128 45 Fair Empl.Prac.Cas. 901 , 45 Empl. Prac. Dec. P 37,587 , 9 Fed.R.Serv.3d 897 Ann J. MALONE, Plaintiff/Appellant, v. UNITED STATES POSTAL SERVICE, an agency of the United States, et al., Defendant/Appellee. No. 85-2244. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 14, 1987. Decided Nov. 23, 1987. Isable Medford, Oakland, Cal., Michael S. Sorgen, San Francisco, Cal., for plaintiff-appellant. Joseph P. Russoniello, Judith A. Whetstine, and Mary Beth Donley, San Francisco, Cal., Stephen E. Alpern and Lori Joan Dym, Washington, D.C., for defendant-appellee. Appeal from the United States District Court for the Northern District of California. Before CHOY, Senior Circuit Judge, SNEED and TANG, Circuit Judges. CHOY, Senior Circuit Judge: 1 Ann Malone appeals the district court's decision, following Malone's violation of a pretrial order, to dismiss with prejudice her suit against the United States Postal Service. We affirm. BACKGROUND 2 Ann Malone brought suit against the United States Postal Service (the "Government") for alleged violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e et seq. The trial began in November…

Ann Malone appeals the district court’s decision, following Malone’s violation of a pretrial order, to dismiss with prejudice her suit against the United States Postal Service. We affirm.

BACKGROUND

Ann Malone brought suit against the United States Postal Service (the “Government”) for alleged violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. The trial began in November 1984. Because Malone’s attorney presented the case in a confused and inefficient manner, the district court restricted counsel’s presentation of witnesses and evidence. Counsel believed that the court was treating her unfairly; on November 16, she made a motion for a mistrial. The court denied the motion, but a few hours later declared a mistrial on its own motion. The district court explained in the June 10, 1985, dismissal order at issue here that the mistrial had been declared because of lack of preparation on the part of Malone’s attorney.

The district court issued a pretrial order on December 13, 1984. The order required both parties to file information with the court prior to a new trial. Among the information requested was a complete list of witnesses and a “thorough and…

dissenting:

I respectfully dissent. Dismissal is a harsh sanction and inappropriate in this case because there was relatively little prejudice to the Government and we should honor the general policy favoring disposition on the merits, especially when the district court has failed to consider the feasibility of less drastic sanctions or to warn the plaintiff’s attorney of the possibility of dismissal.

We have clearly held that 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.” United States v. National Medical Enterprises, Inc., 792 F.2d 906, 912 (9th Cir.1986). While I agree that the consequences of an attorney’s faults or defaults may be visited upon the client, when the sanction is for “deficiencies in the management of litigation,” as in this case, I believe a district court nevertheless abuses its discretion when it does not consider alternative sanctions. In re Hill, 775 F.2d 1385, 1387 (9th Cir.1985) (per curiam).

I do not share the majority’s view that the declaration of mistrial and the pretrial order were attempts at less drastic alternatives to…