United States of America for the Use and Benefit of Wiltec Guam, Inc. v. Kahaluu Construction Co., Inc., and Industrial Indemnity Co.

This appeal challenges sanctions imposed by the district court under Rule 37(b)(2) of the Federal Rules of Civil Procedure. Following several violations of the rules of procedure by the appellants, the court prohibited them from defending against the appellee’s claim, dismissed the counterclaim, and awarded judgment for the appel-lee. We affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

Defendant-appellant Kahaluu Construction Company, Inc. (“Kahaluu”) entered into a contract with the United States Navy for the installation of sprinkler systems in several buildings at the Naval Ship Repair Facility on Guam. Defendant-appellant Industrial Indemnity Company (“Industrial”), as surety, executed a payment bond. Ka-haluu then contracted with plaintiff-appel-lee Wiltec Guam, Inc. (“Wiltec”) for the provision of materials, services, and supplies for use in the sprinkler installation project.

On April 4, 1986, Wiltec filed a complaint against Kahaluu and Industrial under the Miller Act, 40 U.S.C. §§ 270a et seq. (1982), alleging that Kahaluu failed to pay for services and materials Wiltec provided under its contract. Kahaluu and Industrial filed a joint answer and Kahaluu…

concurring:

I concur in the result. I write separately because I have reservations about the majority’s analysis of the fifth factor under Malone v. United States Postal Service, 833 F.2d 128 (9th Cir.1987) (Malone): whether the district court need consider the availability of less drastic alternatives. Id. at 130-32 .

The majority reads Malone as generally requiring the district court “to discuss alternative sanctions; but in exceptional cases, where it is clear that no other alternative would have been reasonable, we may affirm a dismissal or default judgment despite the absence of such a discussion.” Maj. op. at 604. Malone , however, stated a different proposition: “we have never held that explicit discussion of alternatives is necessary for an order of dismissal to be upheld.” Malone, 833 F.2d at 132 (emphasis in original). Malone then held it would not require the district court to discuss alternatives where a court order is “purposefully and defiantly violated.” Id. Rather than analyzing whether Kahaluu purposefully and defiantly violated the court’s order, the majority concludes that this case does not fit into the narrow “egregious circumstances” exception established…

857 F.2d 600 12 Fed.R.Serv.3d 367 UNITED STATES of America for the Use and Benefit of WILTEC GUAM, INC., Plaintiff-Appellee, v. KAHALUU CONSTRUCTION CO., INC., and Industrial Indemnity Co., Defendants-Appellants. Nos. 87-1862, 87-1863. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 6, 1988. Decided Sept. 15, 1988. Russell H. Tansey, Agana, Guam, for defendant-appellant Kahaluu Const. Co., Inc. Charles H. Witherwax, Honolulu, Hawaii, for defendant-appellant Indus. Indem. Co. John C. Dierking, Agana, Guam, for plaintiff-appellee Wiltec Guam, Inc. Appeal from the United States District Court for the Territory of Guam. Before WALLACE, REINHARDT and NOONAN, Circuit Judges. REINHARDT, Circuit Judge: 1 This appeal challenges sanctions imposed by the district court under Rule 37(b)(2) of the Federal Rules of Civil Procedure. Following several violations of the rules of procedure by the appellants, the court prohibited them from defending against the appellee's claim, dismissed the counterclaim, and awarded judgment for the appellee. We affirm in part and reverse in part. FACTS AND PROCEDURAL HISTORY 2 Defendant-appellant Kahaluu Construction Company, Inc.…