                             NOT FOR PUBLICATION

                      UNITED STATES COURT OF APPEALS                          FILED
                              FOR THE NINTH CIRCUIT                            JAN 25 2012

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

BRIAN J. BLUNDELL,                               No. 10-55298

                Plaintiff - Appellant,           D.C. No. 2:08-cv-02212-DDP-E

  v.
                                                 MEMORANDUM*
COUNTY OF LOS ANGELES,

                Defendant - Appellee.


                     Appeal from the United States District Court
                        for the Central District of California
                     Dean D. Pregerson, District Judge, Presiding

                             Submitted January 12, 2012**
                                Pasadena, California

Before:         REINHARDT and W. FLETCHER, Circuit Judges, and ZOUHARY,
                District Judge.***




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
          ***
            The Honorable Jack Zouhary, District Judge for the U.S. District
Court for Northern Ohio, sitting by designation.
      Plaintiff-Appellant Brian Blundell appeals the dismissal of his § 1983 action

against the County of Los Angeles as a sanction for violating three discovery

orders.

      On February 2, 2009, the County served its First Set of Interrogatories on

Blundell. Blundell failed to respond by the March 9th deadline. After Blundell

belatedly served inadequate responses on April 2, the magistrate judge ordered

Blundell to supplement the answers within thirty days. Blundell failed to do so.

      On September 21, the magistrate judge ordered Blundell to supplement his

answers to the interrogatories within seven days. The judge also ordered Blundell

to pay $50 in sanctions to the County (and his former attorney to pay $1,345 in

sanctions). The judge warned Blundell of the possibility of dismissal of his action

if he failed to comply with this discovery order. Blundell again failed to meet the

deadline for supplementing his answers to the interrogatories.

      On October 30, after a hearing on the County’s third motion for sanctions,

the judge ordered Blundell to serve supplemental answers immediately. The judge

also ordered Blundell to pay $100 sanctions to the County. The judge again

warned Blundell of the possibility of dismissal of his action if he failed to comply

with this third discovery order. Blundell failed to serve supplemental answers to




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the County’s interrogatories at any time prior to the discovery cut-off date of

November 16.

      At a hearing on November 20, on the County’s motion for dismissal ,

Blundell’s attorney served supplemental answers to the County’s interrogatories.

No court has assessed the adequacy of these answers.

      On December 1, the magistrate judge recommended, in a detailed written

report to the district court, that Blundell’s action against the County be dismissed

as sanctions for violating three discovery orders. The district court adopted the

magistrate judge’s recommendation and ordered dismissal of the action.

      In a separate order of November 25, the district court denied Blundell’s

motion for a discovery continuance.

                                     Jurisdiction

      On February 26, 2010, Blundell filed a notice of appeal, pro se, specifying

that he was appealing the judgment “entered 01/29/10.” The only entry on January

29, 2010 on the district court docket is the Order adopting the magistrate judge’s

recommendation of dismissal. The district court did not enter final judgment until

February 3, when it dismissed Blundell’s suit against all the parties, including the

County. Because Blundell did not specify the February 3 judgment in his notice of

appeal, the County contends this Court lacks jurisdiction.


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       We reject the County’s contention. The Order of January 29, 2010, adopting

the magistrate judge’s recommendation that Blundell’s action be dismissed, makes

clear his intent to appeal the dismissal. See Le v. Astrue, 558 F.3d 1019, 1022 (9th

Cir. 2009). Moreover, the County has fully briefed the merits of Blundell’s appeal

and so has not suffered prejudice from any mistake as to the date of final judgment.

See Lockman Found. v. Evangelical Alliance Mission, 930 F.2d 764, 772 (9th Cir.

1991) (“Where the appellee has argued the merits fully in its brief, it has not been

prejudiced by the appellant’s failure to designate specifically an order which is

subject to appeal.”). Finally, we can also address the merits of Blundell’s appeal as

to the denial of the continuance motion. See Nat’l Am. Ins. Co. v. Certain

Underwriters at Lloyd’s London, 93 F.3d 529, 540 (9th Cir. 1996) (permitting

review of interlocutory order not designated in notice of appeal if such order “may

have affected the outcome below”).

                       Denial of Motion to Continue Discovery

       “The district court is given broad discretion in supervising the pretrial phase

of litigation, and its decision regarding the preclusive effect of a pretrial order . . .

will not be disturbed unless they evidence a clear abuse of discretion.” Johnson v.

Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992). Here, the district

court did not abuse its discretion in denying the motion to continue discovery


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because Blundell offers no evidence that he or his attorney was diligent in

attempting to meet the discovery deadline. Id. at 609 (holding that diligence of

party seeking amendment is primary justification for amending scheduling order).

Blundell’s contention that his prior counsel failed to conduct adequate discovery,

serve all defendants, and amend the pleadings is inconsistent with a showing of

diligence. Id. (holding that “carelessness is not compatible with a finding of

diligence and offers no reason for a grant of relief”).

               Dismissal as a Sanction for Discovery Noncompliance

      We review discovery sanctions for an abuse of discretion. See Fair Housing

of Marin v. Combs, 285 F.3d 899, 905 (9th Cir. 2002). Here, the district court did

not abuse its discretion to adopt the magistrate judge’s report in the face of

Blundell’s noncompliant discovery. We apply a five factor test on review of a

terminating sanction. First, the magistrate judge found that the public’s interest in

expeditious resolution of litigation favored dismissal, and we “defer to the district

court’s judgment about when delay becomes unreasonable.” In re

Phenylpropanolamine (PPA) Prods. Liability Litig., 460 F.3d 1217, 1227 (9th Cir.

2006). Second, the judge also found that the court had a need to manage its

docket, and “we give deference to the district court since it knows when its docket

may become unmanageable.” Id. at 1227 (internal quotations and citation


                                           5
omitted). Third, Blundell’s failure to produce supplemental answers to the

interrogatories, as ordered, is sufficient to show prejudice to the County. Id. at

1227. Fourth, public policy favoring disposition on the merits generally weighs

against dismissal, but a party, like Blundell, who stalls discovery and unreasonably

delays reaching the merits must “bear responsibility for halting movements

towards a merits resolution.” Id. at 1237. Fifth, the court twice tried less drastic

sanctions, ordered discovery compliance three times, and warned Blundell twice of

possible dismissal if he failed to comply. Accordingly, we affirm the district

court’s dismissal of Blundell’s action against the County.

      For the foregoing reasons, the judgment below is AFFIRMED.




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