dissenting:
I respectfully dissent. Dismissal is a harsh sanction and inappropriate in this case because there was relatively little prejudice to the Government and we should honor the general policy favoring disposition on the merits, especially when the district court has failed to consider the feasibility of less drastic sanctions or to warn the plaintiff’s attorney of the possibility of dismissal.
We have clearly held that a “district court abuses its discretion if it imposes a sanction of dismissal without first considering the impact of the sanction and the adequacy of less drastic sanctions.” United States v. National Medical Enterprises, Inc., 792 F.2d 906, 912 (9th Cir.1986). While I agree that the consequences of an attorney’s faults or defaults may be visited upon the client, when the sanction is for “deficiencies in the management of litigation,” as in this case, I believe a district court nevertheless abuses its discretion when it does not consider alternative sanctions. In re Hill, 775 F.2d 1385, 1387 (9th Cir.1985) (per curiam).
I do not share the majority’s view that the declaration of mistrial and the pretrial order were attempts at less drastic alternatives to dismissal. The district court imposed the extreme sanction of dismissal because of Malone’s attorney’s failure to comply with the court’s pretrial order. The declaration of mistrial and the pretrial order were not sanctions but efforts to manage the litigation. When the attorney belatedly announced that she would or could not comply with the court’s order, the court had a number of options that would not have had such a negative impact on the litigant. It could have considered sanctions against counsel. See Territory of Guam v. Reyes, 800 F.2d 940, 945 (9th Cir.1986). Alternatively, because it was still forty-five days before the trial was scheduled to begin, the court could have warned counsel of the possibility of dismissal if she did not immediately make an effort to comply with the order. This court has frequently required a warning prior to dismissal for proper exercise of the district court’s discretion. See Hamilton v. Neptune Orient Lines, Ltd., 811 F.2d 498, 500 (9th Cir.1987); National Medical Enterprises, Inc., 792 F.2d at 913; Henderson v. Duncan, *135779 F.2d 1421, 1424 (9th Cir.1986); Mir v. Fosburg, 706 F.2d 916, 919 (9th Cir.1983) (we cannot approve dismissal when district court did not warn plaintiff that inaction risked dismissal).
The majority indicates that the prejudice to the Government from Malone’s late notification of her inability to comply with the order was that the Government had made a diligent effort to comply. There would have been very little prejudice had the court warned Malone and assured compliance. If the court had modified its requirements of Malone it could have reduced the prejudice to the Government of any such change by withholding from Malone full disclosure of the Government’s trial strategy-
I would reverse the district court’s order because the district judge’s “understandable pique [does not] excuse his failure to consider alternative sanctions.” Hamilton, 811 F.2d at 500.