                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 17 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



DARRELL KING,                                    No. 10-35794

              Plaintiff - Appellant,             D.C. No. 2:09-cv-00792-RSL

  v.
                                                 MEMORANDUM *
DYNASTY M/V, her tackles,
appurtenances, cargo, In Rem and her
owner and operators,

              Defendant,

  and

AMERICAN SEAFOODS CO,

              Defendant - Appellee.



                   Appeal from the United States District Court
                      for the Western District of Washington
                  Robert S. Lasnik, Chief District Judge, Presiding

                        Argued and Submitted May 6, 2011
                               Seattle, Washington

Before: SCHROEDER, McKEOWN, and CALLAHAN, Circuit Judges.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Plaintiff-appellant Darrell King filed suit against Defendant American

Seafoods Company LLC (“ASC”) seeking damages for personal injuries he

allegedly suffered while employed as a seaman on Defendant M/V Dynasty. King

failed to respond to ASC’s written discovery requests for nine months and failed to

comply with three separate discovery orders compelling him to respond to written

discovery.

      The district court granted ASC’s motion to compel on February 5, 2010,

ordering King to provide written discovery responses within seven days. On

February 19, 2010, King requested additional time “until the end of the day” to

provide responses. The district court granted the request, and ordered responses to

be made no later than midnight, February 25, 2010. On March 4, 2010, after King

again failed to provide responses, ASC filed a motion to dismiss pursuant to

Federal Rule of Civil Procedure 37(b)(2)(A). The district court denied the motion

on April 29, 2010, because less drastic sanctions were available. The court ordered

King to produce responses within seven days, deemed all objections other than

attorney-client privilege waived, and ordered King to pay ASC’s reasonable

attorney’s fees preparing the motion to dismiss. When King again failed to

produce any responses, ASC notified the court pursuant to the court’s April 29,


                                         2
2010 order, and again requested that the court dismiss the case. On May 11, 2010,

the district court dismissed King’s complaint based on these failures to fulfill his

discovery obligations and comply with the court’s orders. King filed a “motion to

reopen case”1 in which he blames his failures on technical problems with his

attorney’s fax machine and an employee in his attorney’s office who failed to

check an email account for the court’s ECF emails. He now appeals the denial of

the motion to reopen case and the district court’s award of attorney’s fees.

      Federal Rule of Civil Procedure 37(b)(2) provides a district judge authority

to dismiss an action for a party’s failure to comply with an order to provide

discovery. In deciding whether to dismiss for failure to comply with a court’s

order, we have identified five factors which the district court must weigh: “‘(1) the

public's interest in expeditious resolution of litigation; (2) the court's need to

manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy

favoring disposition of cases on their merits; and (5) the availability of less drastic

sanctions.’” Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987)



      1
        Actually, King’s “motion to reopen case” does not contain a motion at all.
Apparently, King’s counsel failed to save the motion on his computer, and
therefore the “motion” filed was only the proposed order on his motion. King
failed to correct that mistake until he filed his reply brief, and even then his reply
consisted of only two pages without a single citation to authority supporting his
request to reopen his case.

                                            3
(quoting Thompson v. Hous. Auth. of Los Angeles, 782 F.2d 829, 832 (9th Cir.),

cert. denied 479 U.S. 829 (1986)). We review a dismissal for failure to comply

with the court’s orders for an abuse of discretion, and “we will overturn a dismissal

sanction only if we have a definite and firm conviction that it was clearly outside

the acceptable range of sanctions.” Id. “‘Where the drastic sanctions of dismissal

or default are imposed, however, the range of discretion is narrowed and the losing

party’s non-compliance must be due to willfulness, fault, or bad faith.’” Henry v.

Gill Indus., Inc., 983 F.2d 943, 946 (9th Cir. 1993) (quoting Fjelstad v. Am. Honda

Motor Co., 762 F.2d 1334, 1337 (9th Cir. 1985)).

      The district court weighed each of the Malone factors in considering ASC’s

motion to dismiss, and concluded that “less drastic sanctions” should be imposed.

It ordered King to provide discovery responses within seven days, pay ASC’s fees

for bringing the motion, and warned King that failure to comply with this order

“may result in the dismissal of this action.” After King failed to comply with this

order, the court dismissed the action. King cites no authority that would support

the proposition that the court abused its discretion in dismissing the action after he

was sanctioned for prior failures to comply with discovery obligations and the

court’s orders, and after he was expressly warned that the failure to comply with

the court’s third order may lead to dismissal. See Henry v. Gill Indus., Inc., 983


                                           4
F.2d at 948 (finding dismissal proper after party failed to comply with orders

following imposition of lesser sanctions). Nor could he. “[D]isobedient conduct

not shown to be outside the control of the litigant is all that is required to

demonstrate willfulness, bad faith, or fault.” Id. (internal quotation marks

omitted). King’s various excuses fail to demonstrate that circumstances outside of

his control led to his repeated disobedient conduct. The district court did not abuse

its discretion.

       King’s primary argument in this appeal is that it is unfair to use his counsel’s

mistakes against him. We have dealt with this concern before: “In assessing the

consequences of our decision upon Appellant as distinguished from counsel, it

must be remembered that Appellant ‘voluntarily chose [his attorney] as his

representative in the action, and he cannot now avoid the consequences of the acts

or omissions of [his] freely selected agent.’” United Artists Corp. v. La Cage Aux

Folles, Inc., 771 F.2d 1265, 1271 (9th Cir. 1985) (quoting Chism v. Nat. Heritage

Life Ins. Co., 637 F.2d 1328, 1332 (9th Cir. 1981)) (abrogated on other grounds in

Mt. Graham Red Squirrel v. Madigan, 954 F.2d 1441, 1462 (9th Cir. 1992)).

       King next contends that the award of attorney’s fees should be reversed.

However, the federal rules provide that “in addition to” dismissing the action for

failure to comply with a discovery order, “the court must order the disobedient


                                            5
party, the attorney advising that party, or both, to pay the reasonable expenses,

including attorney’s fees” absent a showing that the failure was “substantially

justified or other circumstances make an award of expenses unjust.” Fed. R. Civ.

P. 37(b)(2)(C) (emphasis added). King argues that technical failures of his

attorney’s office equipment and employees failing to do their jobs are to blame for

his failure to answer the orders. However, these excuses are not the kind of

substantial justification that would render the district court’s order an abuse of

discretion. To the contrary, the modest award of $2,190 in attorney’s fees, which

were properly limited to the time spent on the motion to dismiss, is not “unjust.”

King had nine months to respond to discovery. The multiple failures can’t all be

someone else’s fault. The judgement of the district court is AFFIRMED.




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