Don't Presume Jurors' Analytical Ability

• Author: Lindsay Sestile
• Pages: 16-18

The Court Weighs Five Factor s

on Appeal

Luna appealed the d ecisions. On appeal,

the U.S. Cou rt of Appeals for the Ninth

Circuit scrutinized whether the district

court abused its d iscretion when it dis-

missed the lawsu it and awarded discov-

ery sanction s to be paid by the party

(Luna) and not its attorney.

The appellate cour t noted that there

are ve factors for the cour t to consider

regarding a Rule 41(b) motion to dis-

miss for failure to pros ecute: “(1) the

public’s interest in ex peditious resolu-

tion of litigation; (2) the cour t’s need to

manage its docket ; (3) the risk of preju-

dice to defendants /respondents; (4) the

availability of less drastic alternatives;

and (5) the public policy favoring d is-

position of cases on thei r merits.”

The appellate cour t reasoned that

the rst two fac tors favored dismissa l

given the atto rney’s

poor attend ance at

scheduled hearings

and repeated failu res

to timely respond to

motions. These del ays

obviously went agai nst

the public’s interest in

efcient litigat ion and

made it more dif cult

for the court to man age

its docket. However,

these reasons alone

were not enough to

support a dismiss al. It

would take at least four

of the ve factors sup-

porting dismissal for

such a drastic remedy to b e granted,

or “at least three factors st rongly

support[ing] dism issal,” the court

commented.

Regarding the t hird factor, the

appellate court opine d that the behav-

ior was not egregiou s enough to sig-

nicantly pre judice Stoli in a mann er

that suggested dismissal was appropri-

ate. Charti ng the dates that various

pleadings were due and when t hey

were submitted and when he arings

were scheduled and mi ssed, not all the

delays were unreasonable or c aused by

Luna’s lawyer. The court noted t hat

“unreasonablenes s is not inherent in

every lapse of t ime.”

The fth fac tor also did not sup-

port dismis sal, concluded the appellate

court. The publi c policy that favors

disposition of case s on their merits is

strong. It almost a lways favors against

dismissal , and the court recognize d that

this case was no di fferent.

The Alternatives Not Taken

The court nex t analyzed whether alterna-

tives that might be l ess drastic than dis-

missal were available to t he district court.

For dismissal to b e supported under this

analysis, the d istrict court must “explic-

itly discuss t he feasibility of less drastic

sanctions and ex plain why alternative

sanctions would be i nadequate, [imple-

ment] lesser sanction s before dismissing

the lawsuit, or [warn] plai ntiffs before-

hand [of] the possibi lity of dismissal.”

These steps had not b een taken to the

appellate court’s satisfaction.

The Ninth Circ uit concluded that

the distric t court did not reasonably

examine t he feasibility of alter natives

to dismissal. T he district court merely

noted that lesser sa nctions were not

likely to be effect ive with-

out much elaboration .

The distric t court did not

order monetary sa nctions

against Lu na’s attorney

or require Luna to ret ain

associate c ounsel, the

appellate court spe ci-

cally noted. Fur ther, the

distric t court did not

warn Luna that d ismissal

was even a possibility.

This lack of e xaminat ion

or even use of alterna-

tives, coupled with the

extreme natu re of dis-

missing the lawsu it alto-

gether, “weigh[ed] heavily

against dism issal with prejudice,” held

the court on appeal .

Ultimatel y, the appellate cour t

concluded that the dist rict court’s dis-

missal was an abus e of discretion and

vacated the dismissal.

Section Leaders Agree with the

Appellate Decision

Litigation Sec tion leaders are gener-

ally in agreeme nt with the result. “In

this case, d ismissal with prejudice

was a harsh remedy compare d with

what was going on,” notes Tiffany A .

Rowe, Washington, DC , cochair of the

Section’s Professional Liability Litigation

Committee . “It seems like the distric t

court overreacte d here,” she adds.

Further, under t he facts presented to

the appellate court i n this case, it was

difcu lt for the Ninth Circuit to uphold

the distric t court. “The [Ninth Ci rcuit]

pointed out that the  rst judicial review

was not substantive enough for t hem to

have a sufcient unde rstanding,” observes

Rowe. “As the opinion notes, [an appel-

late court] is handic apped in its consid-

eration of the issues wit hout a fulsome

factual record a nd legal analysis from the

district cou rt,” she claries.

Other Sect ion leaders agree. “Here,

there was a long line of dec iencies in

counsel’s behavior,” opines Ethan T.

Tidmore, Birmingham, AL, cochair

of the Section’s Pretri al Practice &

Discovery Comm ittee. “Though, in nd-

ing the way it did, the appell ate court was

essential ly saying that the punish ment did

not t the crime,” he explai ns. “It is clear

that dismiss als under the rule are reserved

for extreme situations,” Tidmore adds.

In this cas e, although Luna’s attor-

ney committed t he misconduct, the

court chose to enter sa nctions against

Luna. “The appell ate court could not

attribute fault to the ac tual part y. There

was no clear record of intention al mis-

conduct on the part y’s part,” clarie s

Tidmore. The dist rict court could have

taken additional st eps that might have

justied orderi ng the plaintiff to pay

sanctions in t his case. “The court could

have required the par ty to appear at a

hearing and sug gest that the party hire

new counsel. If t he party chose to st ick

with their law yer, then it more clearly

becomes the par ty’s blame as well,” con-

cludes Tidmore.

RESOURCES

Luna Distrib . LLC v. Stoli Grp. LLC, No.

19-558 13 (9th Cir. 2020).

An drew J. Kennedy, “Law yer Sanctioned

for Pursuing Baseless Case to Summary

Judgment,” Litigation News (June 30, 2016).

Char les S. Fax, “Serial A buse of Discovery

Rules Warrants Disbarment,” Litigation

News (Oct. 15, 201 5).

Mat thew S. Mulqueen, “ Failure to File

Surreply Lea ds to Waiver on Appeal,”

Litigation News (Aug. 1 , 2018).

Fed. R. Civ. P. 12(b)(6): Defen ses and

Objection s: When and How Presente d;

Motion for Jud gment on the Pleadin gs;

Consolidating Motions; Waiving Defenses;

Pretrial Hearing.

Fed. R. Civ. P. 41(b): Dismis sal of Actions.

Fed. R. Civ. P. 37(d): Failure to Make

Disclosures o r to Cooperate in Discover y;

Sanctions.

The district court did

not warn Luna that

dismissal was even

a possibility. This

lack of examination

coupled with the

extreme nature

of dismissing the

lawsuit altogether

"weigh[ed] heavily

againts dismissal

with prejudice."

AMERICA N BAR ASSOCIATION SPRING 20 21 • VOL. 46 NO. 3 | 15

Published in Litigation News Volume 46, Number 3, Spring 20 21. © 2021 by the American Bar A ssociation. Repr oduced with permissi on. All rights reser ved. This informati on or any portion the reof may not be copie d or disseminated in any

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