Lancaster v. South Lane School District

dissenting.

REINHARDT, Circuit Judge.

I would hold that the district court abused its discretion when it dismissed the Lancaster’s entire action under Federal Rule of Civil Procedure 41(b). Involuntary dismissal is “so harsh a penalty” it should be used only to address “extreme circumstances.” Dahl v. City of Huntington, 84 F.3d 363 , 366 (9th Cir.1996) (citations omitted). The minor “failure” at issue here was plaintiffs’ decision to silently stand by a sufficient complaint and not accept the magistrate judge’s “leave to amend” offer. Other circuits have questioned whether such conduct could even be classified as a “failure to comply with a court order.” See, e.g., Mann v. Merrill Lynch, Pierce, Fenner and Smith, Inc., 488 F.2d 75, 76 (5th Cir.1973) (“Dismissal of a case for disobedience of a court order is an exceedingly harsh sanction.... Failure to amend a complaint after it has been dismissed with leave to amend is not such an extreme case of disobedience, if it is disobedience at all.”). Under the third factor, risk of prejudice to the defendant, such a minor violation should not be presumed to work to the defendant’s detriment, let alone to constitute such wilful…

MEMORANDUM *

Henry Lancaster and his parents appeal the dismissal of their action against South Lane School District as a sanction for failure to comply with an order to amend their complaint by a certain date. They argue that their original complaint was sufficient, that the magistrate judge ought to have allowed leave to late-file an amended complaint, and that the sanction was an *18 abuse of discretion. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

Because the parties are familiar with the facts, we do not recount them in detail except as necessary. Although the parties did not raise the question of our jurisdiction, we must raise it sua sponte where it is lacking. See WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1135 (9th Cir.1997) (en banc).

1. Dismissal with leave to amend

On July 11, 2002, the magistrate judge issued “Findings and Recommendation” to dismiss some claims with leave to refile after exhaustion of administrative remedies, and others with leave to file an amended complaint within thirty days. The Lancasters did not file any objections with the district judge and on August 16, 2002, the district judge issued an order adopting the Findings…