Hampton v. City of Oakland

51 F. App'x 685

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 21, 2002
• Docket: No. C.A. 02-15611; D.C. No. CV-00-04152-CRB
• Status: Published

Opinion

MEMORANDUM

**

Attorney Jaynelle Bell filed this civil rights action on behalf of her client, Mo-jukhan Hampton, alleging that Oakland police officers illegally arrested him, used excessive force, and planted drugs on him. The district court dismissed the action without prejudice for failure to prosecute and imposed discovery sanctions on Bell. We affirm.

The district court imposed discovery sanctions against Bell pursuant to Federal Rule Civil Procedure 37(b) because she violated a court order to schedule her client’s deposition. Her arguments regarding Federal Rule Civil Procedure 11 are accordingly inapposite. Moreover, we do not agree with Bell that her client should pay the sanctions. The court directed “counsel to pay the sum of $1,250 to the City of Oakland as sanctions.” Rule 37(b) specifically provides that sanctions may be imposed against an attorney. Finally, Bell is not being punished for her client’s lack of cooperation. Rather, as the district court carefully explained, Bell had a “responsibility to the court” to comply with the order or to withdraw from the case.

We also reject Bell’s contention that the district court was obligated to order a “mandatory settlement conference.” The record indicates only that the parties agreed to participate in an “Early Settlement Conference” contingent on the completion of limited discovery, including Hampton’s deposition. Because Hampton’s deposition never took place, there was no reason for the court to order any settlement proceedings.

Appellees request in their brief that we sanction Bell pursuant to Federal Rule Appellate Procedure 38 for filing a frivolous appeal. Such a request is not sufficient, however, to satisfy the notice requirement of Rule 38. See Gabor v. Frazer, 78 F.3d 459, 459-60 (9th Cir.1996). Moreover, we conclude that Bell’s arguments are not “wholly without merit.” See Orr v. Bank of America, 285 F.3d 764, 784 n. 34 (9th Cir.2002) (internal quotation omitted). Accordingly, we decline to impose sanctions on appeal.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.