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

WALLACE, Before BOOCHEVER and HALL, Judges. Circuit HALL, CYNTHIA HOLCOMB Circuit Judge: appeals

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

I. FACTS. rights .and in the produced owns pictures Cage “La Aux Folies” and Aux II.” Both films de- Cage “La Folies imperson- nightclub featuring female pict a de- arose in 1981 when ators. This action nightclub in Los opened fendant Paciocco Cage as “La Aux Folies.” Angeles known extension of time within which to entertainment includes featured club’s appeal. Da- file a impersonators. female The extension was show a floor non, par- corporations suggested two along Marshall because of against appeal, brought suit ties to this conflicts in her schedule. On Paciocco, subsequently Cage and a dis- La Judge Marshall denied the Rule mo- individual, contending that they vio- missed tion. entered Au- The court the denial on competition, federal and state unfair lated 29, 1983, gust granted and exten- trademark, by copying copyright and laws for appeal sion of an from the name, characters, and distinctive fea- September 6, appeal- dismissal. On Danon the films. tures of from Judge ed Hill’s of dismissal. 28, September appealed On Danon from 3, February Cage La served On Judge 60(b) Marshall’s denial of his Rule interrogatories. its first Danon with set motion. due March 8. On that Responses were date, request- counsel sent a letter Danon’s Although the letter was extension. II. an TIMELINESS OF APPEAL. due, responses were Danon received after Cage La not raise of wheth did the issue April until granted

was an extension appeal er notice of the Rule Danon’s from timely dismissal was but we are re respond by the Danon failed to extended quired date, April 15, sponte. La to consider this issue sua Cage and on due Rodgers Watt, 722 to F.2d 457-58 compel motion to answers inter- See filed a (en banc). or, rogatories alternatively, Timely filing “to dismiss the re hearing, quirements April ordinarily At the for are man complaint.” However, compel datory and granted jurisdictional. to was mone- motion tary imposed against Da- Supreme sanctions has a limit Court established addition, counsel non. In was certain exception ed so “[u]nder circumstances, action would be dis- warned that Danon’s unique appellate tribunal in compli- if answers were not strict missed to appeal have hear an ance with the court’s order. prescribed that was not filed within the INS, time limits.” Hernandez-Rivera v. $2,000 paid fine levied (9th Cir.1980)(Hernan Hill, 4,May responded and on to the Judge dez). Drydock Co. v. M/V See Curacao requested interrogatories produced Akritas, Cir. Cage in documents. La found deficiencies Practice, 1983); Moore, Federal J. Moore’s brought responses a second mo- (2d ¶ ed. n. 17 & 204.02[1] 204.02[2] tion, requesting the this time court “to 1985). prejudice plaintiffs’ com- dismiss with or, compel plaint” alternatively, to further “Unique A. Circumstances” Doctrine. interrogatories pro- and further answers May At the duction of documents. circumstances” doctrine hearing, the court dismissed Danon’s Supreme was Court articulated then prejudice. Danon retained action with Hankin, three decisions. See Wolfsohn counsel, 29, 1983, new on June filed 699, 11 L.Ed.2d 636 376 U.S. 84 S.Ct. for time request both a extension of to file curiam); INS, (1964) (per Thompson v. pursuant 4(a)(5), appeal to Rule notice of L.Ed.2d 404 U.S. 84 S.Ct. Fed.R.App.P., and a reconsider- (1964) curiam); (per Truck Lines Harris ation and relief from the order dismis- Packers, Inc., Cherry Meat 60(b), sal pursuant Fed.R.Civ.P. (per curiam). are Thompson and potential Due to a conflict interest Wolfsohn present case. counsel, most relevant involving Danon’s new case motions for Thompson, appellant Judge Hill to reassigned Judge was twelve and a new trial factual amendments day June the same Marshall. On mistakenly filed, judgment request granted days entry of Marshall after (D.C.Cir.1983) timely curiam). motions were believing The court later, the trial hearing filed. At a two succinctly appro- Willis summarized the new trial that the motion for court declared priate applying circumstances ample Thomp- “in time.” had been made “unique circumstances” doctrine: son, 386, 84 at 398. In 375 U.S. at permit appellant Courts will to main- fact, post-trial untimely motions were tain an appeal otherwise running toll the and therefore did not unique appel- circumstances which the appeal. In reliance on the trial the time for reasonably good lant and in faith relied misstatement, however, appel- court’s upon judicial action that indicated to the taking appeal had lant believed the time for appellant that right his assertion of his to file been tolled and he failed his timely, long would be so as the applicable time limit from appeal within judicial expi- occurred to the action entry judgment. ration of the official time permitted Court nonetheless appellant that the given could have time- disposition of the untime- be filed after the ly notice had he not been lulled into ly beyond applicable ap- motions and the inactivity. peal period “unique because of the circum- Willis, 747 F.2d at 606. At least three involving appellant’s stances” the reliance other expressed willing circuits have their on the trial misstatement. Id. at court’s apply ness “unique to the circumstances” 387, 84 at 399. upon doctrine showing a sufficient of rea Wolfsohn, after four the Marane, sonable reliance. See Inc. v. Mc granted summary judgment against court Corp., (7th Donald’s 755 F.2d 111 n. appellant, appellant an moved for extension Cir.1985) (doctrine inapplicable facts); on a of time within which to file motion for Myers Stephenson, 748 F.2d 205-06 rehearing under Rule Fed.R.Civ.P. (4th Cir.1984)(dicta); Alvestad v. Monsan Hankin, 321 F.2d Wolfsohn Co., (5th Cir.) (doctrine (D.C.Cir.1963) curiam). (per The district facts), inapplicable denied, on cert. 6(b), court overlooked Rule Fed.R.Civ.P. U.S. (prohibiting beyond extensions of time the (1982). background, With this we turn to 59(b)), 10-day period Rule granted authority permits whether from our circuit Appellant the extension. the application “unique of the circumstances” period. Rule 59 motion within the extension present doctrine in the case. denied, After the motion was she filed a appeal thirty days. notice of within The Authority. B. Ninth Circuit appellate appeal court dismissed the after initially We are two of our confronted concluding 10-day filing that the time for a appear decisions which conflicting to reach “may Rule enlarged by 59 motion not be Compare Selph results. v. Council the court.” Id. Because no Rule 59 mo- City Angeles, Los 593 F.2d 881 10-day period, tion was filed within the Cir.1979), with In re Estate Butler’s appellate filing court held that time for Battery Tire & appeal was not tolled and that the time Cir.1979) (Butler’s Tire). Upon further expired appellant before filed her notice of examination, however, we conclude that appeal. Id. The Court reversed Selph distinguishable Butler’s citing Thompson. Wolfsohn, Harris and controlling. Tire is U.S. 84 S.Ct. at 699. In Selph, a motion for extension of time recently “unique Two circuits held the filing appeal for filed within was applicable per- circumstances” doctrine permitted by 30-day period extension mit were otherwise 4(a)(5), applicable the then version of Rule 4(a), Fed.R.App.P. under Rule See Willis However, Newsome, (11th Fed.R.App.P. Selph’s attorney curiam); date noticed the motion for a Aviation Enter- after prises, Orr, period. expiration 1406 n. extension noted, the earlier 882. As we court that notice filed.” Id. 593 F.2d at Selph, omitted).3 (Footnote date have been noticed could exten- expiration prior to the Hernandez, We followed Tire Butler’s Although the at 883. dis- period. Id. sion 630 F.2d at 1344-45. Hernandez involved the exten- subsequently granted court trict 10-day appeal interpretation peri motion, we dismissed sion od under 8 C.F.R. 242.21. Section 242.21 § that once the untimely. Selph heldWe provision contained no extension of expired as a period result 30-day extension appeal filing period, the immigra actions, the district appellant’s judge granted tion extension dur authority possessed longer no filing Hernandez, period. the initial Selph of time.1 dis- grant an extension Immigra 630 F.2d at 1354. The Board of present case where from the tinguishable Appeals tion dismissed the because delay district court’s action caused immigration judge it concluded that appeal. authority grant lacked the an extension. Tire filed for appellant Butler’s reversed, concluding appel We 20-day period during pro- an extension lant’s granted reliance the extension 802(c), for under Rule Fed.R. vided immigration judge constituted the second 30- (corresponding Bankr.P. warranting accept circumstances” 4(a)(5)).2 The day period under bank- untimely appeal. ance of the Id. at 1354- argument ruptcy court scheduled after the request for date ex- Tire, expired. tension Butler’s present case involves facts regard to the notice of F.2d at 1032. With Harris, analogous Thompson, to Wolf Harris, Thompson, upon we relied appeal, sohn, Tire, Hernandez, and Butler’s as concluding appel- that the and Wolfsohn well the from other decisions circuits “reasonably withheld of the no- lant cited Danon could have his above. appeal the had ruled tice of until court on initial appeal appeal within the neglect and should the claim of excusable period reasonably not upon if he had relied penalized upon relying be for the not suggestion the of district court’s erroneous argument a court’s decision to calendar for a extension. conclude that this We beyond applicable time limits.” date the “unique per case involves circumstance” omitted). (Footnote ultimately We dis- Id. mitting appeal us to hear Danon’s there appeal missed the because was no Rule dismissal. neglect the support evidence to excusable Permitting appeal the in this case is also claim, recognized “the but we nonetheless our decision in to accord with recent Cali- proposition that there hear appeal Regional Planning Agen- the when it is fault lower v. Tahoe fornia longer following present grounds Selph the a case the that But is no law on 1. 4(a)(5) changed interpretation per- to ler’s Rule Rule Tire involved an of amendment 802(c). timely-filed Brickyard, a to a In re The mit district court rule on Cf. Cir.1984) (Rule (9th period request 802 should be con extension after extension has 4(a)(2) expired, expired. period Rules extension has strued in the same manner as If the 4(a)(4)). grant the court is now authorized to request extension from the date the 4(a)(5) (effective granted. Fed.R.App.P. Selph, Tire is consistent 3. Unlike Butler's 1, 1979). actually anticipated amendment to 4(a)(5). supra 1. We believe that Rule See note Tire, precedential value Butler's Tire is unaf- In we that Rule 802 "so of Butler’s held 2. 4(a) "unique closely parallels" interpreta- by the fact that the circumstanc- Rule fected 802(c) upon neglect” be relied Rule es” doctrine would have to tion of "excusable under today. principles decided Butler's Tire con- governed be should under case willingness 4(a)(5). apply the predecessor our to to tinues to illustrate statute Rule Butler’s Tire, "unique show- light doctrine of the similari- circumstances" 592 F.2d at 1034. In Hernandez, 802(c) 4(a)(5), reliance. See But- reasonable ties between Rule distinguished meaningfully F.2d at ler’s Tire cannot be (9th Cir.1985). willfulness, faith, In cy, 766 F.2d 1316 Tahoe is due to bad fault Planning, agencies Regional party.” Wyle Reynolds Ind., one of the v. R.J. Inc., thirty- Cir.1983). involved filed an We recognized orally have seven district court that a dismissal or after default judgment may pre- of a on “fault” denied its motion modification based alone. INS, See liminary injunction. agency had de- Munoz-Santana v. (9th Cir.1984)(“The

layed court found filing its notice because no willfulness or bad faith ... so ques- anticipated entry of a final written order tion is whether the INS’s noncompliance applied entered. which was never We ‘fault’____”). constitutes We review a dis- per- “unique circumstances” doctrine missal sanction for an abuse of discretion untimely appeal. mitted the otherwise Ta- and will reverse absent definite and Regional Planning hoe further illustrates firm conviction that a clear error of judg- apply our to willingness cir- ment was made court by the below. despite cumstances” doctrine the effect the Heritage See Chism National Ins. finality doctrine judgments. has on Life Cir.1981). eq- We our is an believe that decision present Danon’s former Miller, Wright uitable one. C. & A. See comply counsel was unable to Procedure, Federal Practice & Civil discovery requests in part because of his (1969)(“unique at 640 circumstanc- § inability to communicate with Danon due right es” doctrine that a litigant’s “insures Danon’s travel schedule. Danon has not protected seek review will be at the claimed his former counsel did not expense only a modest on incursion attempt contact him and Danon has not finality rules relating judgments”). shown he had advised his counsel of If the district had action on taken no his whereabouts so that he could be Danon’s extension of time until reached reasonable notice. Danon’s reconsideration, it ruled on the motion for diligence conduct indicated a lack of possessed district court would have keeping abreast of the status of his case. authority grant under 4(a)(5) amended Rule when the denial of probably counsel should the motion for entered requested reconsideration was days have more than five to se- August 1983. Danon should not be cure additional to the interrogato- answers penalized by upon April his reasonable reliance ries at the hearing. How- ever, court’s in granting mistake additional answers were not avail- May hearing extension on June 29. The court’s able even at the district pow- logistics initial because “of the in beyond extension was its involved obtain- obtaining ers documents may regarded nullity. answers from be as a Thus, [Danon], due may as to his travel schedule.” E.R. be viewed Thus, 4. prior 29 at the failure of entry effective date of the the order Danon’s to seek than granting counsel more five request. Danon’s extension secure additional did not granted by district answers cause the travels, court on that dismissal. Because of Danon’s may date therefore viewed be falling forthcoming as answers would not been within the have authorization 4(a)(5). requested even if amended counsel had several Rule respond. weeks We conclude that Da- For above, we reasons discussed con- non that the was blameless and failure clude that we have of the comply discovery requests with was present appeal. partly his fault. III. MERITS. required We have district courts to A granting dismissal sanction failure to lesser before consider sanctions comply 37, Fed.R.Civ.P., ap with Rule the severe sanction of dismissal. See Rai propriate Pounds, “only comply where failure to ford curiam); much Bldg. Industrial Danon’s conduct involved more Corp., Materials, Interchemical than the of the “single” violation district (9th Cir.1970). discovery court’s that orders occurred in require- with our complied district court Fjelstad. initially imposing the ment in this case dismissal, By may upholding the we be fine. We $2000 lesser sanction penalizing Danon more than his coun- impose an inclined to additional have been However, previously sel. we have stated rather granting fine or than other sanction affirming in a dismissal: continuing Danon’s following dismissal In recognizing hardship the relative upon orders, discovery with the noncompliance Appellant distinguished counsel, as from that the district court did but we conclude it must kept in mind that granting dismis- not abuse its discretion efficiently courts cannot function sal. unless they can effectively require compliance Fjelstad Our recent decision v. Ameri- rules____ with reasonable can Motor Honda Cir.1985), require a re- In assessing consequences does not different of our American failed Fjelstad, sult. In Honda upon decision Appellant distinguished plaintiff’s inter- answer a number counsel, it must be remembered rogatories that but we found American Appellant “voluntarily chose at- [his failure to answer Honda’s torneys] representative^] as his willful respect only interrogatory. at action, and he cannot now avoid the con- many interrogato- 1342. unclear how It is sequences of the acts or omissions of ries Hon- had been served American freely agent[s].” selected [these] da, co-defendant, Limited, but its Honda Chism, (quoting 637 F.2d at 1332 Link v. interrogatories. had with 103 been served R.R., 626, 633-34, Wabash Id. at The evidence established 1386, 1390-91, (1962)). produced had numerous American Honda West, Inc., 542 See Anderson v. Air materials, discovery and other documents (9th Cir.1976). light of our statements, including witness numerous partly at conclusion that Danon was fault scene, photographs of the accident video- comply discovery for the failure to investigation, tapes accident requests, dismissal. we affirm the Be- report, an “ex- highway patrolman’s cause we find the district court did on the haustive” list of studies causes of dismissing its abuse discretion Danon’s motorcycle accidents. Id. 1342. We re- case, we need not consider entry partial judg- versed the default motion for reconsideration rais- ment against American Honda because the arguments rejected es the same above. “single violation” the district willful justify a court’s order did not default sanc- AFFIRMED. tion in light of American Honda’s extensive compliance the remainder the dis- of WALLACE, Judge, concurring in Circuit covery requests. Id. at part part: dissenting In this Danon was with six- served in Judge I concur in result reached ty-four interrogatories February 1983. Indeed, jurisdic- opinion. Hall’s if we had hearing, April At the Danon was tion, entirely. I could it I re- agree with interrogatories directed to answer the with- dissent, however, spectfully from the hold- subsequently out Danon’s filed objection. appellate jurisdiction that we over have objections to ten of the answers contained appeal equitable excep- under an requests for interrogatories protective 4(a)(5),Fed.R.App.P. I tion to rule would Moreover, orders on five others. appellate ap- over the find no documents, timely produce any

failed to lack of timeli- peal from the first order for requested including interrog- documents ness, Danon did affirm Marshall’s object. atories to which not would 60(b), Fed.R.Civ.P., A. order on the rule mo- tion for reconsideration. majority The concludes that the applies,

circumstances” doctrine and that it permits appeal. majority the late re- per lies on three Court curia for 4(a)(1),Fed.R.App.P., provides Rule leading case, this doctrine. In the Harris by nongovernmental appeals may taken be Lines, Cherry Packers, Truck Meat only if parties in civil actions a notice of Inc., 83 S.Ct. 9 L.Ed.2d appeal the district court is filed with clerk curiam) Truck), {Harris days entry of the order within 30 after or decided predecessor under the to former judgment appeal is taken. from which 4(a), 73(a), rule appellant Fed.R.Civ.P. provides The rule for an also extension during moved for an extension the initial period. 4(a)(5) part: Rule states in filing 73(a) period. permitted Rule a 30- court, upon showing The district of day filing period extension to the initial if a cause, good neglect excusable justified motion for by extension “ex- filing extend the time notice of neglect cusable on a based failure of a appeal upon motion filed not later than party entry to learn judg- of the expiration days after the of the time ment.” Id. at 83 S.Ct. at 285. The 4(a).... prescribed by this No district court neglect, found excusable days such extension shall exceed 30 granted an of approximately two past prescribed days time or 10 weeks from the end of the initial entry the date the order from of period. The court of reversed the extend], granting motion which- [to finding neglect that, and concluded be- ever occurs later. neglect proven, cause no excusable added). (emphasis had been entered district court the order dis- and the should thus be dismissed. missing prejudice Danon’s action with id. at See 284. The Su- May 1983. Both combined motion preme Court reversed: for extension and reconsideration and the great In view hardship of the obvious judge’s granting the motion party judge’s who relies the trial were filed on within the June initial finding neglect” “excusable prescribed filing period by rule expiration 4(a)(1). However, granting instead of finding, then suffers reversal 4(a)(5), days rule judge allowed finding] given great should [the def- granted extension. On reviewing erence court. Whatev- 29, the district denied the motion for proper er the result as initial matter granted reconsideration and Danon an addi- here, on the facts record contains a tional 10 ap- within which to file his showing unique suffi- circumstances dismissal, peal pursuant to what Appeals ought cient that the Court the district stipu- court referred as “the judge’s to have rul- disturbed stipulation clearly lation.” The refers to ing. order, the June on which typed added). (emphasis Id. at S.Ct. at 30-day period was crossed out in ink and provide authority Harris Truck does replaced “60,” by a handwritten the in argument reliance this case. It “by stipulation parties,” notation did not issue of address the whether by parties judge. initialed the and the filing period district court can extend the effectively granted Marshall beyond applicable filing the allowed extension which Danon within could in rule. The Harris Truck was file an the rule extension 37 dismissal. well within the 30 allowed rule Sep- Danon filed on this 73(a). tember 6.

1273 384, reed per curia are thin indeed INS, 84 S.Ct. v. 375 U.S. Thompson curiam) (1964) (per 397, majority the chooses rest its use 11 L.Ed.2d 404 which inapplicable here. (Thompson), equally is doctrine. circumstances” by the district Following a final appealed The order from which court, Thompson in made appellant type not the of order involved in Su- factual amendments motions for Thus, I preme cases. conclude that Court according the terms of trial a new per rationale of the does not curia Fed.R.Civ.P., then in ef- rules 52 and apply. at 397. Neverthe- at 84 S.Ct. fect. Id. less, specifically declared the district court B. timely. Later, within for- them 73(a)’s on time limit from date mer rule however, true, It is that both our circuit denied the motions the district court applied and other circuits have the doctrine order, original of the not from the date variety in a of circumstances. See Califor appeal. Al- appellant filed a notice of Kamp Region ex rel. de v. nia Van Tahoe rule and 59 motions were though the (9th 766 F.2d 1316 Planning Agency, al void, Supreme untimely and therefore Cir.1985) Industries, (Tahoe), National 73(a) that rule was satisfied held Court Republic National Insurance Life “unique circumstances” of the because (9th Cir.1982) Co., (Na 677 F.2d appellant’s reliance on district Industries); v. tional Hernandez-Rivera mistake. court’s (9th Cir.1980); INS, 630 F.2d 1353-54 distinguishable Thompson Battery is because re Estate Butler’s Tire & of 1028, completely Cir.1979); was of a Co., (9th court’s mistake 592 F.2d 1031-32 than mistake here. Marane, nature different v. see also Inc. McDonald’s factual amendments Timely motions for Cir.1985) (7th 111 n. 2 Corp., 755 F.2d ordinarily trial tolled the run- a new (Marane); Stephenson, 748 F.2d Myers v. 73(a) filing period, initial ning of the rule Willis (Myers); 4(a). Thus, question they do rule under Newsome, Cir. Thompson was not the Court before curiam) 1985) (Willis), (per Aviation En court could extend the the district whether Orr, terprises, Inc. v. 73(a) filing period beyond the mandat- rule (Orr), (D.C.Cir.1983) curiam) Al n. 25 extension, 73(a) rule had but whether ed 910- vestad Monsanto triggered all. been denied, (5th Cir.), 459 U.S. cert. (Alves 74 L.Ed.2d Supreme case on which The third Court Hankin, tad). relies, majority Wolfsohn 203, 84 doc unique Even circumstances (1964) (per curiam) (Wolfsohn), a one-sen- appropriate is extension trine opinion, support majori- tence does not curia, reject appli its per Court presented pre- ty’s position. The case key case. The element of the cation why which is Thompson, facts of cise party must demonstrate doctrine only one sentence decide Court needed judicial action taken reasonable reliance on Thompson "readily distinguish- it. Since expiration first prior to the also is from this distin- able Wolfsohn Marane, 4(a)(5). See, e.g., of rule Moreover, the four Justices guishable. 2; Willis, n. 747 F.2d at F.2d at 111 clearly who dissented Wolfsohn 25; Alvestad, 606; Orr, n. 716 F.2d at argument “reliance” disenchanted F.2d at 911. wrought Truck and they had Harris that an agree a conclusion I cannot peculiar case to its to confine that wished attorney reasonably rely 203-04, id. at 84 S.Ct. at 699 facts. See court, extension, when granted by a district (Clark, J., the Court has dissenting). Since 4(a)(5) states that expressly rule “[n]o on this doctrine for over remained silent days.” do To these exceed twenty short shall years, conclude 1274 attorneys Director, encourage Department Corrections, to in- would be to v.

so of rulings 257, 271-72, 564-65, veigle 556, courts into that U.S. 98 S.Ct. erroneous, (1978) ordinarily (rules 52(b) 59, and then to would be 54 L.Ed.2d 521 and Fed.R.Civ.P., “unique mandatory of circum- jurisdictional) behind the shield are hide wder). Thus, (Bro This is not case in which we stances.” should not erroneously scope informed any equitable excep clerk an increase the of district court of would attorney that his notice be tions to the rule absent clear mailed, resulting guidance. thus effective when an Court Willis, late, day see appeal that was one only majority’s Not ig- does result 606; Myers, F.2d at see also jurisdictional the mandatory nore as- (clerk wrong stamped at 205 date on 4(a), pects of rule also fails to consider appeal). Nor this a the notice of case of adopts. ramifications the rule it If it party delayed which the the notice of parties that is true .the and the district entry appeal pending an of written may stipulate court now to a exten- entered, order that the district court never sion, then what will happen when a district 1318, Tahoe, 766 F.2d at or case in see grants days, months, an extra 90 six on party which the relied an erroneous year? Surely or point at some See, ruling. e.g., district court National majority’s analysis would conclude that re- Industries, 677 F.2d at 1264. liance such- extension is “unreason- parties However,

This a case which majority opinion able.” provi- agreed the district court to waive the us no principled leaves with means of dif- 4(a)(5) of to suit their sions rule conve- ferentiating between reasonable and unrea- equity, nience. Even as a matter of this is Thus, sonable reliance. we are left with a practice not a exercise, can condoned. Both linedrawing mere an exercise best parties obligation and the court have an legislature left to the or the Rules Commit- appellate to read and follow the rules of my however, judgment, tee. the Com- procedure. “unique While the circumstanc- already has so. mittee done may protect es” doctrine of instances inad- applied by circumstances” doctrine as faith, good vertent or bright-line reasonable reliance majority abandons a rule that omission, judicial on a error or it should not painstaking, unprincipled would avoid case- to encompass be extended the intentional by-case analysis.

bypass of a federal rule. Moreover, permitting from the dismissal because the district

C. parties stipula- court and the entered into a 4(a) 4(a)(5) promote was created to tion that rule violated would break a policy providing finality principle jurisdiction: cardinal of federal judicial process. Selph See v. Council can be neither conferred 881, Angeles, destroyed by agreement Los Cir. nor between the 1979); See, parties v. e.g., Matton Steamboat Co. Mur and the court. Owen cf. 412, 1128, phy, 319 Equipment Kroger, U.S. & Erection Co. curiam) (dis U.S. 377 n. 2404 n. cussing policies (1978); peri limitation 57 L.Ed.2d Fire American ods). unique Finn, Casualty Even circumstances & Co. U.S. “only (1951).

doctrine is a modest incursion” on S.Ct. 95 L.Ed. 702 Al- Miller, finality, 4(a)(5) Wright A. I though recognize C. & Federal that rule does implicate jurisdiction, Practice and at 640 not article III be- Procedure § (1969), princi- majority application extends doctrine lieve that sound 4(a)(5) ples finality requires analogous too far. The rule. terms rule are “mandatory” jurisdictional. as well as for the same reasons neither the Rodgers Watt, stipulate parties nor to fed- the courts 1983) (en banc) diversity (Rodgers), jurisdiction, Cir. question Browder eral cf.

1275 Board, F.2d Relations 680 parties nor the cultural Labor neither the hold that would (9th (no significant destroy jurisdiction may or confer courts motion), denied, or new cert. 459 4(a) by promise, evidence stipulation, rule under 1071, 103 S.Ct. v. Robin U.S. United States agreement. Cf. Industries, (1982); at 229-30, National son, 361 U.S. (reaching (insufficient summary a (1960) response 1270 to 288-89, 4 L.Ed.2d 259 motion). 45(b)). Judge judgment Marshall did under old Fed.R.Crim.P. same result by examining judges abrogate her discretion first litigants and requires A rule moving determine Danon papers abide appellate rules and the civil and read legally request cogni a them, choosing those that had made by than rather 60(b). convenience, equitable is zable under rule both suit their a rule logical. apply I would addition, In Danon created some confu- circum and find identify clearly wheth- by sion his failure inapplicable. stances” doctrine 60(b)(1) asserting a rule er he was motion, 60(b)(6) In he used motion. II 60(b)(6) language motion for suggesting Judge reached I in the result concur “any In his memorandum other relief.” however, Hall, because I would affirm motion, however, support of the Danon denying Danon’s Judge Marshall’s order Indeed, 60(b)(1) urged theory. as rule on the dismissal. for reconsideration motion in our opening late of his brief on the I review decision doing, In so Thus, that the court, he no choice. made for reconsideration for abuse motion 60(b) con- denying the rule motion Marane, See, 755 F.2d at e.g., discretion. ambiguous language some tained at A 112; Rodgers, 722 F.2d denial ambiguity gener- surprising based re cannot this standard relief under to differentiate ated Danon’s failure be- and firm we have “definite versed unless 60(b)(6) 60(b)(1) grounds. In his tween court commit that the district conviction” however, reply argument, brief and at oral it con judgment when ted a clear error asserting a he was Danon conceded that See, Pot e.g., the relevant factors. sidered Therefore, 60(b)(6) re- rule claim. will States, Corp. v. United latch ruling under rule view the district court’s Cir.1982). 157 60(b)(6). order, denied Da- her Marshall 60(b)(1) 60(b)(6) are not sub Rules because she did not “believe non’s motion another, mutually apply sets requirements counsel has met Casualty Transit exclusive situations. See for reconsideration in this the motion Co., 441 Security F.2d o. v. Trust C ac- reached this decision after case.” She denied, (5th Cir.), U.S. cert. all knowledging that she had considered (1971). Thus, L.Ed.2d 164 S.Ct. papers. motions and the relevant under rule reconsideration 60(b)(6) requires a of extraordi showing that this statement argues bare nary related to inadvert circumstances not Judge Marshall did not reach indicates that rule already covered in neglect con- ence or his motion because she the merits of 60(b)(1). Corp. United pre- See Corex that the motion failed some cluded Cir.1981). States, liminary ground. He contends that 60(b), subdivision equivalent Unlike the rest of rule merits is failure to reach the against the movant. harshly thus is construed a failure to exercise discretion and therefore, Danon, prevail cannot See id. disagree. A rule of discretion. abuse merely by alleging that tend to show facts 60(b) satisfy cri- motion must the minimum original dismissal. See the error of the rule, i.e., recognizable state a teria of that Browder, 7,98 434U.S. relief, at 263 n. before the district reason 7; Corp., n. Seaboard SEC the motion. evaluate the merits of (9th Cir.1982). See, e.g., Agri- Cel-A-Pak California My moving pa review of rule our case. On the dis- pers reveals that essence trict July court amended a order of claim, in the memorandum require as stated that defendant American Honda declarations, (AH) personally that Danon plaintiffs’ interrogato- was answer all of nothing attorney’s “fully with his completely” by August had to do mis ries 29. penalized not so, feasance and should for it. Id. at 1336. After AH failed to do true, legally $50,000 Even insufficient for court against levied a sanction it 60(b)(6) a rule A number of courts 1, motion. and its co-defendant on March 1984 and party again have held that order for compliance. ordered Id. at 1337.1 60(b)(6), prevail By under rule counsel must March AH had still supple- at gross negligence, have committed least incomplete response mented one to inter- been neglect rogatories while his client must not have August 8, that it had See, Mordowanec, e.g., King ful. 46 1983. id. at See 1342. Plaintiffs (D.R.I.1969). F.R.D. judgment upon 479-80 Other moved for a default gross negli ground courts have concluded that that AH comply had failed to inadequate gence is an for a rule basis court’s March 1984 order and had 60(b)(6) See, e.g., motion. outstanding Schwarz Unit failed to answer interrogato- States, (2d ed 835-36 ries. granted. Cir. The motion was 1967); Inryco, Metropoli see also Inc. This court that concluded AH “deliber- Co., Engineering tan 1233- ately supplement failed to its answer to the (7th Cir.), denied, cert. 104 interrogatory concerning potential witness- (1983); 11 C. es,” id. at held “allowing that Miller, Wright & A. Federal Practice and partial judgment to suffer default [AH] (1973). Procedure We § its single because of willful violation need decide that issue because even if July unjust,” 29 order would be at 1343. id. gross negligence were adequate, Danon In our supple- Danon’s failure to in moving papers has conceded his that his interrogatories ment rigors due to the counsel’s did not actions rise to the level of of his business schedule and cannot be gross negligence. I conclude that labelled “deliberate.” His failure raises no Judge Marshall did not abuse her discretion allegations plead- inference that the in his by denying Danon’s rule motion be ings untrue, the other factor dis- justification cause for the denial was evi Fjelstad cussed court. See id. at moving See, dent from the papers. e.g., 1342-43. Newspapers, King, Standard (2d Cir.1967) (per curiam). I Although imposition believe justified, sanction was conclude BOOCHEVER, Circuit Judge, dissenting was an abuse of impose discretion to part. extreme sanction of dismissal. While believe his coun- sanctions,

sel’s conduct warranted I re-

spectfully dissent the affirmance of

the extreme sanction of dismissal. Fjelstad v. American Honda Motor Cir.1985), 762 F.2d 1334 this court 37(b)(2)(C)

reversed a Fed.R.Civ.P. default

judgment which had been entered under circumstances similar

to, than, or more egregious present those Although explicitly ground upon plaintiff the district court did not moved for sanc- comply July state that AH’s failure to tions. fine, 29 order was the basis this was the

Case Details

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

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Sep 17, 1985

Citation: 771 F.2d 1265

Docket Number: 83-6234

Court Abbreviation: 9th Cir.