United Artists Corp. & L.P.A.A., Marcello Danon v. La Cage Aux Folles, Inc.

771 F.2d 1265, 2 Fed. R. Serv. 3d 769, 1985 U.S. App. LEXIS 23156

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 17, 1985
• Docket: 83-6234
• Status: Published

Opinions

CYNTHIA HOLCOMB HALL, Circuit Judge:

Danon appeals from the district court’s dismissal of his action with prejudice pursuant to Rule 37(b)(2)(C), Fed.R.Civ.P., for failing to comply with a discovery order compelling answers to interrogatories from one of the defendants, La Cage Aux Folies, Inc. (La Cage). He also appeals from the district court’s denial of his motion under Rule 60(b), Fed.R.Civ.P., for relief from that dismissal. We affirm.

I. FACTS.

Danon produced .and owns rights in the motion pictures “La Cage Aux Folies” and “La Cage Aux Folies II.” Both films depict a nightclub featuring female impersonators. This action arose in 1981 when defendant Paciocco opened a nightclub in Los Angeles known as “La Cage Aux Folies.” The club’s featured entertainment includes a floor show by female impersonators. Danon, along with two corporations not parties to this appeal, brought suit against Paciocco, La Cage and a subsequently dismissed individual, contending that they violated federal and state unfair competition, trademark, and copyright laws by copying the name, characters, and distinctive features of the films.

On February 3, 1983, La Cage served Danon with its first set of interrogatories. Responses were due on March 8. On that date, Danon’s counsel sent a letter requesting an extension. Although the letter was received after responses were due, Danon was granted an extension until April 11.

Danon failed to respond by the extended due date, and on April 15, 1983, La Cage filed a motion to compel answers to interrogatories or, alternatively, “to dismiss the complaint.” At the April 27 hearing, the motion to compel was granted and monetary sanctions were imposed against Danon. In addition, Danon’s counsel was warned that Danon’s action would be dismissed if answers were not in strict compliance with the court’s order.

Danon paid the $2,000 fine levied by Judge Hill, and on May 4, responded to the interrogatories and produced requested documents. La Cage found deficiencies in the responses and brought a second motion, this time requesting the court “to dismiss with prejudice plaintiffs’ complaint” or, alternatively, to compel further answers to interrogatories and further production of documents. At the May 31, 1983 hearing, the court dismissed Danon’s action with prejudice. Danon then retained new counsel, and on June 29, 1983, filed both a request for extension of time to file a notice of appeal pursuant to Rule 4(a)(5), Fed.R.App.P., and a motion for reconsideration of and relief from the order of dismissal pursuant to Rule 60(b), Fed.R.Civ.P.

Due to a potential conflict of interest involving Danon’s new counsel, the case was reassigned from Judge Hill to Judge Marshall. On June 29, the same day the request was filed, Judge Marshall granted a 60-day extension of time within which to file a notice of appeal. The extension was suggested by Judge Marshall because of conflicts in her schedule. On August 22, Judge Marshall denied the Rule 60(b) motion. The court entered the denial on August 29, 1983, and granted a 10-day extension for the filing of an appeal from the dismissal. On September 6, Danon appealed from Judge Hill’s order of dismissal. On September 28, Danon appealed from Judge Marshall’s denial of his Rule 60(b) motion.

II. TIMELINESS OF APPEAL.

La Cage did not raise the issue of whether Danon’s notice of appeal from the Rule 37(b) dismissal was timely but we are required to consider this issue sua sponte. See Rodgers v. Watt, 722 F.2d 456, 457-58 (9th Cir.1983) (en banc). Timely filing requirements for appeals are ordinarily mandatory and jurisdictional. Id. However, the Supreme Court has established a limited exception so that “[u]nder certain unique circumstances, an appellate tribunal may have jurisdiction to hear an appeal that was not filed within the prescribed time limits.” Hernandez-Rivera v. INS, 630 F.2d 1352, 1354 (9th Cir.1980) (Hernandez). See Curacao Drydock Co. v. M/V Akritas, 710 F.2d 204, 206-07 (5th Cir.1983); 9 J. Moore, Moore’s Federal Practice, 557 ¶ 204.02[1] n. 17 & 204.02[2] (2d ed. 1985).

A. “Unique Circumstances” Doctrine.

The “unique circumstances” doctrine was articulated by the Supreme Court in three decisions. See Wolfsohn v. Hankin, 376 U.S. 203, 84 S.Ct. 699, 11 L.Ed.2d 636 (1964) (per curiam); Thompson v. INS, 375 U.S. 384, 84 S.Ct. 397, 11 L.Ed.2d 404 (1964) (per curiam); Harris Truck Lines v. Cherry Meat Packers, Inc., 371 U.S. 215, 83 S.Ct. 283, 9 L.Ed.2d 261 (1962) (per curiam). Thompson and Wolfsohn are most relevant to the present case. In Thompson, the appellant filed motions for factual amendments and a new trial twelve days after entry of judgment mistakenly believing that the motions were timely filed. At a hearing two days later, the trial court declared that the motion for new trial had been made “in ample time.” Thompson, 375 U.S. at 386, 84 S.Ct. at 398. In fact, the post-trial motions were untimely and therefore did not toll the running of the time for appeal. In reliance on the trial court’s misstatement, however, the appellant believed the time for taking appeal had been tolled and he failed to file his notice of appeal within the applicable time limit from the entry of judgment. The Supreme Court nonetheless permitted the appeal to be filed after the disposition of the untimely motions and beyond the applicable appeal period because of the “unique circumstances” involving the appellant’s reliance on the trial court’s misstatement. Id. at 387, 84 S.Ct. at 399.

In Wolfsohn, four days after the district court granted summary judgment against appellant, appellant moved for an extension of time within which to file a motion for rehearing under Rule 59, Fed.R.Civ.P. Wolfsohn v. Hankin, 321 F.2d 393, 394 (D.C.Cir.1963) (per curiam). The district court overlooked Rule 6(b), Fed.R.Civ.P. (prohibiting extensions of time beyond the 10-day period of Rule 59(b)), and granted the extension. Id. Appellant filed the Rule 59 motion within the extension period. After the motion was denied, she filed a notice of appeal within thirty days. The appellate court dismissed the appeal after concluding that the 10-day time for filing a Rule 59 motion “may not be enlarged by the court.” Id. Because no Rule 59 motion was filed within the 10-day period, the appellate court held that the time for filing the appeal was not tolled and that the time expired before appellant filed her notice of appeal. Id. The Supreme Court reversed citing Harris and Thompson. Wolfsohn, 376 U.S. at 203, 84 S.Ct. at 699.

Two circuits recently held the “unique circumstances” doctrine applicable to permit appeals that were otherwise untimely under Rule 4(a), Fed.R.App.P. See Willis v. Newsome, 747 F.2d 605, 606-07 (11th Cir.1984) (per curiam); Aviation Enterprises, Inc. v. Orr, 716 F.2d 1403, 1406 n. 25 (D.C.Cir.1983) (per curiam). The court in Willis succinctly summarized the appropriate circumstances for applying the “unique circumstances” doctrine:

Courts will permit an appellant to maintain an otherwise untimely appeal in unique circumstances in which the appellant reasonably and in good faith relied upon judicial action that indicated to the appellant that his assertion of his right to appeal would be timely, so long as the judicial action occurred prior to the expiration of the official time period such that the appellant could have given timely notice had he not been lulled into inactivity.

Willis, 747 F.2d at 606. At least three other circuits have expressed their willingness to apply the “unique circumstances” doctrine upon a sufficient showing of reasonable reliance. See Marane, Inc. v. McDonald’s Corp., 755 F.2d 106, 111 n. 2 (7th Cir.1985) (doctrine inapplicable on facts); Myers v. Stephenson, 748 F.2d 202, 205-06 (4th Cir.1984) (dicta); Alvestad v. Monsanto Co., 671 F.2d 908, 911 (5th Cir.) (doctrine inapplicable on facts), cert. denied, 459 U.S. 1070, 103 S.Ct. 489, 74 L.Ed.2d 632 (1982). With this background, we turn to whether authority from our circuit permits application of the “unique circumstances” doctrine in the present case.

B. Ninth Circuit Authority.

We are initially confronted by two of our decisions which appear to reach conflicting results. Compare Selph v. Council of the City of Los Angeles, 593 F.2d 881 (9th Cir.1979), with In re Estate of Butler’s Tire & Battery Co., 592 F.2d 1028 (9th Cir.1979) (Butler’s Tire). Upon further examination, however, we conclude that Selph is distinguishable and that Butler’s Tire is controlling.

In Selph, a motion for extension of time for filing a notice of appeal was filed within the 30-day extension period permitted by the then applicable version of Rule 4(a)(5), Fed.R.App.P. However, Selph’s attorney noticed the motion for a date after the expiration of the 30-day extension period. Selph, 593 F.2d at 882. As we noted, the motion could have been noticed for a date prior to the expiration of the 30-day extension period. Id. at 883. Although the district court subsequently granted the extension motion, we dismissed the appeal as untimely. We held in Selph that once the 30-day extension period expired as a result of the appellant’s actions, the district court no longer possessed authority to grant an extension of time.¹ Selph is distinguishable from the present case where the district court’s action caused the delay in filing the appeal.

The appellant in Butler’s Tire filed for an extension during the 20-day period provided for under Rule 802(c), Fed.R. Bankr.P. (corresponding to the second 30-day period under Rule 4(a)(5)).² The bankruptcy court scheduled argument on the extension request for a date after the extension period expired. Butler’s Tire, 592 F.2d at 1032. With regard to the notice of appeal, we relied upon Harris, Thompson, and Wolfsohn in concluding that the appellant “reasonably withheld filing of the notice of appeal until the court had ruled on the claim of excusable neglect and should not be penalized for relying upon the court’s decision to calendar argument for a date beyond the applicable time limits.” Id. (Footnote omitted). We ultimately dismissed the appeal because there was no evidence to support the excusable neglect claim, but we nonetheless recognized “the proposition that there is jurisdiction to hear an appeal when it is the fault of the lower court that notice was not earlier filed.” Id. (Footnote omitted).³

We followed Butler’s Tire in Hernandez, 630 F.2d at 1344-45. Hernandez involved an interpretation of the 10-day appeal period under 8 C.F.R. § 242.21. Section 242.21 contained no provision for an extension of the appeal filing period, but the immigration judge granted a 15-day extension during the initial filing period. Hernandez, 630 F.2d at 1354. The Board of Immigration Appeals dismissed the appeal because it concluded that the immigration judge lacked the authority to grant an extension. We reversed, concluding that the appellant’s reliance upon the extension granted by the immigration judge constituted “unique circumstances” warranting acceptance of the untimely appeal. Id. at 1354-55.

The present case involves facts analogous to Harris, Thompson, Wolfsohn, Butler’s Tire, and Hernandez, as well as the decisions from other circuits cited above. Danon could have filed his notice of appeal within the initial appeal period if he had not reasonably relied upon the district court’s erroneous suggestion of a 60-day extension. We conclude that this case involves “unique circumstance” permitting us to hear Danon’s appeal of the Rule 37(b) dismissal.

Permitting the appeal in this case is also in accord with our recent decision in California v. Tahoe Regional Planning Agency, 766 F.2d 1316 (9th Cir.1985). In Tahoe Regional Planning, one of the agencies involved filed an untimely appeal thirty-seven days after the district court orally denied its motion for modification of a preliminary injunction. The agency had delayed filing its notice of appeal because it anticipated entry of a final written order which was never entered. We applied the “unique circumstances” doctrine and permitted the otherwise untimely appeal. Tahoe Regional Planning further illustrates our willingness to apply the “unique circumstances” doctrine despite the effect the doctrine has on the finality of judgments.

We believe that our decision is an equitable one. See 4 C. Wright & A. Miller, Federal Practice & Procedure, Civil § 1168, at 640 (1969) (“unique circumstances” doctrine “insures that a litigant’s right to seek review will be protected at the expense of only a modest incursion on the rules relating to finality of judgments”). If the district court had taken no action on Danon’s motion for extension of time until it ruled on the motion for reconsideration, the district court would have possessed the authority to grant a 10-day extension under amended Rule 4(a)(5) when the denial of the motion for reconsideration was entered on August 29, 1983. Danon should not be penalized by his reasonable reliance upon the court’s mistake in granting the 60-day extension on June 29. The district court’s initial 60-day extension was beyond its powers and may be regarded as a nullity. Thus, August 29 may be viewed as the effective date of the entry of the order granting Danon’s extension request. The 10-day extension granted by the district court on that date therefore may be viewed as falling within the authorization of amended Rule 4(a)(5).

For the reasons discussed above, we conclude that we have jurisdiction of the present appeal.

III. MERITS.

A dismissal sanction for failure to comply with Rule 37, Fed.R.Civ.P., is appropriate “only where the failure to comply is due to willfulness, bad faith, or fault of the party.” Wyle v. R.J. Reynolds Ind., Inc., 709 F.2d 585, 589 (9th Cir.1983). We have recognized that a dismissal or default judgment may be based on “fault” alone. See Munoz-Santana v. INS, 742 F.2d 561, 564 (9th Cir.1984) (“The district court found no willfulness or bad faith ... so the question is whether the INS’s noncompliance constitutes ‘fault’____”). We review a dismissal sanction for an abuse of discretion and will not reverse absent a definite and firm conviction that a clear error of judgment was made by the court below. Id. See Chism v. National Heritage Life Ins. Co., 637 F.2d 1328, 1331 (9th Cir.1981).

In the present case, Danon’s former counsel was unable to comply with the discovery requests in part because of his inability to communicate with Danon due to Danon’s travel schedule. Danon has not claimed that his former counsel did not attempt to contact him and Danon has not shown that he had advised his counsel of his whereabouts so that he could be reached on reasonable notice. Danon’s conduct indicated a lack of diligence in keeping abreast of the status of his case.

Danon’s prior counsel probably should have requested more than five days to secure additional answers to the interrogatories at the April 27, 1983 hearing. However, the additional answers were not available even at the May 31, 1983 hearing because “of the logistics involved in obtaining documents and obtaining answers from [Danon], due to his travel schedule.” E.R. 29 at 4. Thus, the failure of Danon’s prior counsel to seek more than five days to secure additional answers did not cause the dismissal. Because of Danon’s travels, the answers would not have been forthcoming even if counsel had requested several weeks to respond. We conclude that Danon was not blameless and that the failure to comply with the discovery requests was partly his fault.

We have required district courts to consider lesser sanctions before granting the severe sanction of dismissal. See Raiford v. Pounds, 640 F.2d 944, 945 (9th Cir.1981) (per curiam); Industrial Bldg. Materials, Inc. v. Interchemical Corp., 437 F.2d 1336, 1339 (9th Cir.1970). The district court complied with our requirement in this case by initially imposing the lesser sanction of a $2000 fine. We may have been inclined to impose an additional fine or other sanction rather than granting dismissal following Danon’s continuing noncompliance with the discovery orders, but we conclude that the district court did not abuse its discretion in granting dismissal.

Our recent decision in Fjelstad v. American Honda Motor Co., 762 F.2d 1334 (9th Cir.1985), does not require a different result. In Fjelstad, American Honda failed to answer a number of the plaintiff’s interrogatories but we found that American Honda’s failure to answer was willful with respect to only one interrogatory. Id. at 1342. It is unclear how many interrogatories had been served upon American Honda, but its co-defendant, Honda Limited, had been served with 103 interrogatories. Id. at 1339. The evidence established that American Honda had produced numerous documents and other discovery materials, including witness statements, numerous photographs of the accident scene, videotapes of the accident investigation, the highway patrolman’s report, and an “exhaustive” list of studies on the causes of motorcycle accidents. Id. at 1342. We reversed the entry of partial default judgment against American Honda because the “single willful violation” of the district court’s order did not justify a default sanction in light of American Honda’s extensive compliance with the remainder of the discovery requests. Id. at 1343.

In this case, Danon was served with sixty-four interrogatories in February 1983. At the April 27, 1983 hearing, Danon was directed to answer the interrogatories without objection. Danon’s subsequently filed answers contained objections to ten of the interrogatories and requests for protective orders on five others. Moreover, Danon failed to timely produce any documents, including documents requested in interrogatories to which Danon did not object. Thus, Danon’s conduct involved much more than the “single” violation of the district court’s discovery orders that occurred in Fjelstad.

By upholding the dismissal, we may be penalizing Danon more than his prior counsel. However, we have previously stated in affirming a dismissal:

In recognizing the relative hardship upon Appellant as distinguished from counsel, it must be kept in mind that district courts cannot function efficiently unless they can effectively require compliance with reasonable rules____

In assessing the consequences of our decision upon Appellant as distinguished from counsel, it must be remembered that Appellant “voluntarily chose [his attorneys] as his representative^] in the action, and he cannot now avoid the consequences of the acts or omissions of [these] freely selected agent[s].”

Chism, 637 F.2d at 1332 (quoting Link v. Wabash R.R., 370 U.S. 626, 633-34, 82 S.Ct. 1386, 1390-91, 8 L.Ed.2d 734 (1962)). See Anderson v. Air West, Inc., 542 F.2d 522, 526 (9th Cir.1976). In light of our conclusion that Danon was partly at fault for the failure to comply with the discovery requests, we affirm the dismissal. Because we find that the district court did not abuse its discretion in dismissing Danon’s case, we need not consider Danon’s Rule 60(b) motion for reconsideration which raises the same arguments rejected above.

AFFIRMED.

1 . Selph is no longer the law following a 1979 amendment which changed Rule 4(a)(5) to permit a district court to rule on a timely-filed extension request after the extension period has expired. If the extension period has expired, the court is now authorized to grant a 10-day extension period from the date the request is granted. Fed.R.App.P. 4(a)(5) (effective August 1, 1979).

2 . In Butler’s Tire, we held that Rule 802 "so closely parallels" Rule 4(a) that the interpretation of "excusable neglect” under Rule 802(c) should be governed by the principles under the predecessor statute to Rule 4(a)(5). Butler’s Tire, 592 F.2d at 1034. In light of the similarities between Rule 802(c) and Rule 4(a)(5), Butler’s Tire cannot be meaningfully distinguished from the present case on the grounds that Butler’s Tire involved an interpretation of Rule 802(c). Cf. In re The Brickyard, 735 F.2d 1154, 1156 (9th Cir.1984) (Rule 802 should be construed in the same manner as Rules 4(a)(2) and 4(a)(4)).

3 . Unlike Selph, Butler's Tire is consistent with and actually anticipated the 1979 amendment to Rule 4(a)(5). See supra note 1. We believe that the precedential value of Butler's Tire is unaffected by the fact that the "unique circumstances” doctrine would not have to be relied upon if the case were decided today. Butler's Tire continues to illustrate our willingness to apply the "unique circumstances" doctrine upon a showing of reasonable reliance. See Hernandez, 630 F.2d at 1355.