FILED
NOT FOR PUBLICATION OCT 17 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAY JOHNSON and MARGIE JOHNSON, No. 12-55420
Plaintiffs-Appellees, DC No. 2:10-cv-03907-PSG-
VBK
v.
ROBERT M. GOLDSMITH and
CATHERINE H. GOLDSMITH, MEMORANDUM*
Defendants-Appellants.
Appeal from the United States District Court
for the Central District of California
Phillip S. Gutierrez, District Judge, Presiding
Submitted October 11, 2013**
Pasadena, California
Before: KLEINFELD and CHRISTEN, Circuit Judges and SEDWICK,
District Judge.***
___________________________________
*This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3(a).
**This panel unanimously finds this case suitable for decision without oral
argument. See Fed. R. App. P. 34(a)(2).
***The Honorable John W. Sedwick, Senior United States District Judge for
the District of Alaska, sitting by designation.
Robert M. Goldsmith and Catherine H. Goldsmith appeal from the decision
of the district court which imposed a case-dispositive sanction by striking their
answer and ordering entry of default. We review a decision to impose such a
sanction for an abuse of discretion. Conn. Gen. Life Ins. Co. v. New Images of
Beverly Hills, 482 F.3d 1091, 1096 (9th Cir. 2007).
Before imposing a case dispositive sanction a trial judge must consider five
factors: “‘(1) the public’s interest in expeditious resolution of litigation; (2) the
court’s need to manage its dockets; (3) the risk of prejudice to the party seeking
sanctions; (4) the public policy favoring disposition of cases on their merits; and
(5) the availability of less drastic sanctions.’” Id. at 1096 (quoting Jorgensen v.
Cassiday, 320 F.3d 906, 912 (9th Cir. 2003)). Obviously, the first and second
factors ordinarily will support the sanction while the fourth factor ordinarily will
not. The third and fifth factors are generally determinative in deciding whether
there was an abuse of discretion. See Adriana Intern. Corp. v. Thoeren, 913 F.2d
1406, 1412 (9th Cir. 1990).
Here, the trial judge found the Goldsmith’s behavior during the discovery
process prejudicial to the Johnsons. However, no motion to compel compliance
with discovery obligations was made and the trial court issued no order to comply
with them. The prejudice to the Johnsons from the Goldsmith’s failure to comply
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with the pretrial order was delay. Delay alone is insufficient to support a case-
dispositive sanction. Id.
Here, the controlling consideration is the fifth factor—consideration of less
drastic sanctions. As we have explained, the fifth factor should be analyzed with
an eye on three considerations: Did the trial court consider less drastic sanctions;
did it attempt to use them; and did it warn the party to be sanctioned that a case-
dispositive sanction might be imposed. Conn. Gen. Life Ins. Co., 482 F.3d at
1096. The trial court did not specifically consider any less drastic sanction, much
less attempt to use one, and gave no warning to the Goldsmiths that it would
consider a case-dispositive sanction. On the record here, this was an abuse of
discretion.
Because we reverse for failure to adequately consider less drastic sanctions,
we express no opinion on the other issues discussed in the briefs.
The Johnsons’ motion to strike is denied as moot.
REVERSED AND REMANDED.
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