Phillip R. Sanders v. Union Pacific Railroad Company

193 F.3d 1080, 99 Daily Journal DAR 10957, 99 Cal. Daily Op. Serv. 8560, 44 Fed. R. Serv. 3d 1295, 1999 U.S. App. LEXIS 26831, 1999 WL 970146

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 26, 1999
• Docket: 97-55046
• Status: Published

Opinions

RYMER, Circuit Judge:

Phillip Sanders appeals the district court’s sua sponte dismissal of his action with prejudice for failure to comply with the court’s pretrial preparation order.

In June 1995, Sanders filed an action against Union Pacific Railroad Company under the Federal Employers’ Liability Act (FELA), 45 U.S.C. §§ 51-60. The case was assigned to Judge James M. Ide-man. The court set a trial date of November 19, 1996 and a pretrial conference date of November 8. Its standard form pretrial conference order also required the parties to submit certain documents twenty-one days before trial and others fourteen days before. The form order warned that failure to comply could result in sanctions, including dismissal.

As of the pretrial conference, Sanders’s counsel had not filed a trial brief, memorandum of contentions of fact and law, responses to Union Pacific’s motions in limine, or proposed voir dire questions as he should have. His motion in limine was filed six days late, and his witness, exhibit and expert witness lists were filed the day before the conference, two days late under the order. Counsel failed to meet and confer with Union Pacific despite requests that he do so, as a result of which no joint exhibit notebook, joint proposed jury instructions, or joint trial notebook was submitted.

The final pretrial conference was held as scheduled, except that Judge Ideman’s law clerk presided. Sanders’s counsel said that he had been involved in a complex FELA action in Nebraska and asked for an opportunity to explain to the judge why he had been unable to comply with the order. The law clerk told counsel for both parties that the trial date would be vacated and that the court would probably set the matter for hearing on an order to show cause.

Nevertheless, on November 15, Judge Ideman’s courtroom deputy notified counsel that the case had been dismissed with prejudice. That same day the court issued a written order vacating the trial date and dismissing the case pursuant to Federal Rule of Civil Procedure 41(b).¹ Sanders’s counsel then filed a motion to set aside the judgment pursuant to Rule 60(b), which the court denied without a hearing.

Sanders urges us to hold that the court was obliged to warn counsel and client of imminent sua sponte dismissal and to have dismissed without prejudice instead of with prejudice, while Union Pacific argues that the court did not abuse its discretion because Sanders was warned in the order and had clearly failed to comply by the time the pretrial conference occurred. At the same time, Union Pacific acknowledges that the “pretrial conference” wasn’t a pretrial conference in the normal sense and that our analysis is hampered by the lack of a record about what happened there.

We decline to dissect what happened in this case and to prescribe a recipe for how and when an action may be dismissed, with or without prejudice, for failure to follow the pretrial rules. This is a unique case. Suffice it to say that where, as here, the district judge allows his law clerk to conduct the final pretrial conference, declines to give counsel an opportunity to be heard before the court, and then dismisses the action sua sponte with prejudice, we cannot let the dismissal stand.

Counsel was plainly derelict in meeting his Rule 16 obligations, but so was the district judge. In different circumstances, where the district court exercises its own discretion in a deliberate, informed and reasonable way, we would accord it considerable deference.² See, e.g., Malone v. United States Postal Serv., 833 F.2d 128, 130 (9th Cir.1987). But we cannot see how any deference is warranted in these circumstances. Accordingly, we vacate all orders entered after the pretrial conference and remand for another district judge to consider afresh how to proceed.³ In so doing, we express no opinion aboüt how the new judge’s discretion should be exercised. Rather, we simply put the parties back to square one.

REVERSED AND REMANDED.

1 . This order did not touch all of the bases we have previously said a district court must touch before imposing dismissal as a sanction. See Dahl v. City of Huntington Beach, 84 F.3d 363, 366 (9th Cir.1996).

2 . Likewise, a Rule 60(b) motion and the court's ruling on it may sometimes cure deficiencies in the initial award of sanctions. See Link v. Wabash R.R. Co., 370 U.S. 626, 632, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). But the later ruling cannot rescue the earlier one here, since it is inextricably intertwined with the initial order, which resulted from a conference over which the judge did not preside.

3 . Judge Ideman resigned from the federal bench after the decision was rendered in this case. For this reason we do not need to decide whether this action should be reassigned to the calendar of a different district judge; it will necessarily be assigned to a new judge in any event.