FILED
NOT FOR PUBLICATION OCT 14 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MIMIELLE GOULATTE; BONNIE No. 12-57022
RHEA-SCOTT; SOAR, INC.; SCOTT
HOUSING, D.C. No. 2:11-cv-01740-DDP-JC
Plaintiffs - Appellants,
MEMORANDUM*
v.
COUNTY OF RIVERSIDE; HOUSING
AUTHORITY OF THE COUNTY OF
RIVERSIDE, Erroneously Sued As
Riverside County Public Housing
Authority; JERRY WENGERD, an
individual; MARIA MARQUEZ, an
individual; LYNNE BROCKMEIER, an
individual; HEIDI MARSHALL, an
individual; CARRIE HARMON; DONNA
DAHL, an individual; LOURDES
KIRKPATRICK, an individual; LINDA
RAMOS, an individual; KRISTIN
MILLER, an individual; CARMELO
ISALES, an individual; LINDA RABOR,
an individual; FRANK RAMOS; BILL
VAN DER POORTEN,
Defendants - Appellees.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Submitted October 8, 2014**
Pasadena, California
Before: EBEL,*** KLEINFELD, and GRABER, Circuit Judges.
Mimielle Goulatte, Bonnie Rhea-Scott, and their corporations, Soar, Inc.,
and Scott Housing, (“Appellants”) appeal the district court’s orders (1) dismissing
their 42 U.S.C. § 1983 claim against the County of Riverside (“County”), (2)
granting summary judgment against their other claims, and (3) granting their
attorney’s motion to withdraw. We have jurisdiction under 28 U.S.C. § 1291. We
affirm.
After Appellants failed to respond to the County’s requests for production of
discovery documents and the magistrate judge’s order to compel discovery, the
district court dismissed Appellants’ action pursuant to the Central District of
California’s local rules. We review the district court’s dismissal pursuant to its
local rules for abuse of discretion. Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable David M. Ebel, Senior Circuit Judge for the U.S.
Court of Appeals for the Tenth Circuit, sitting by designation.
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1995) (per curiam). Here, the Central District of California Local Rule 7-9
requires an opposing party to file an opposition at least 21 days prior to the
scheduled motion hearing, and under Local Rule 7-12, failure to file within the
specified deadline may be deemed as consent to grant the motion. The County
filed a motion to dismiss and alternative request for sanctions on August 30, 2012.
Appellants had not responded within 21 days of the scheduled October 11 hearing,
and the district court granted the County’s motion to dismiss on October 5, 2012.
“Failure to follow a district court’s local rules is a proper ground for
dismissal.” Ghazali, 46 F.3d at 53 (citing United States v. Warren, 601 F.2d 471,
474 (9th Cir. 1979) (per curiam). However, before dismissing an action, the court
must weigh several factors: “(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) (internal quotation marks omitted). Although
specific district court findings on the factors are helpful, in the absence of such
findings, we review the record independently to determine whether the court
abused its discretion. Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986).
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The district court made no specific findings on the Malone factors. Our
examination of the record satisfies us that the Malone factors favor dismissal.
First, “‘[t]he public’s interest in expeditious resolution of litigation always favors
dismissal.’” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (quoting
Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). The second factor
also favors dismissal because a trial judge is in the best position to determine
interference with docket management. Id. In this case, the district court judge
declined to extend the discovery deadline set by the magistrate judge. Third,
failure to produce discovery documents is sufficient prejudice against the County
to support dismissal. In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460
F.3d 1217, 1236 (9th Cir. 2006). Appellants did not respond to the County’s
production request made on June 7, 2012, or to the magistrate judge’s order
compelling discovery on August 2, 2012. When the County filed its motion to
dismiss on August 30, 2012, Appellants still had not produced any documents in
response to the June 7 request. Finally, the district judge did implicitly consider a
less drastic alternative prior to ordering dismissal. The County’s alternative
request for evidence and monetary sanctions was before the district court. The
district court did not abuse its discretion in applying Local Rule 7-12 and granting
dismissal. Public policy does favor disposition of cases on the merits, but because
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the rest of the Malone factors weigh in favor of dismissal, on balance, the district
court did not abuse its discretion.
We need not consider whether summary judgment was properly granted to
the County, because Appellants did not address the summary judgment in their
opening brief and “arguments not raised by a party in its opening brief are deemed
waived.” Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
Even if the district court’s granting of Appellants’ attorney’s motion to
withdraw is reviewable (but see Nat’l Am. Ins. Co. v. Certain Underwriters at
Lloyd’s London, 93 F.3d 529, 540 (9th Cir. 1996)), the district court did not abuse
its discretion in granting it. Counsel’s reasons for seeking to withdraw were very
strong, and plaintiff offered little to counter them except a mistaken view that
counsel should be compelled to serve a corporation because a corporation cannot
appear pro se. Appellants had ample time to perform their discovery duties and to
attempt to secure another attorney’s services.
AFFIRMED.
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