925 F.2d 1470
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Amir H. SHERVIN, Plaintiff-Appellant,
Al PEREZ, Sam Williams, and Jerry Everett, Defendants-Appellees.
Nos. 87-2171, 87-2290.
United States Court of Appeals, Ninth Circuit.
Submitted Feb. 4, 1991.*
Decided Feb. 6, 1991.
Before TANG, SCHROEDER and CYNTHIA HOLCOMB HALL, Circuit Judges.
Amir H. Shervin appeals pro se the district court's dismissal of his action pursuant to Fed.R.Civ.P. 37 for failure to attend a deposition as ordered by the court.1 We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. We review for an abuse of discretion, see Halaco Engineering Co. v. Costle, 843 F.2d 376, 379 (9th Cir.1988), and reverse and remand.
Rule 37 sanctions are intended to punish evasion of pre-trial discovery. Wanderer v. Johnston, 910 F.2d 652, 655 (9th Cir.1990) (quotation omitted).2 Although district courts have considerable discretion to impose Rule 37 sanctions, see National Hockey League v. Metro Hockey Club, Inc., 427 U.S. 639, 643 (1976); Wanderer, 910 F.2d at 655-56, the sanction of dismissal is authorized only in extreme circumstances, see United States for Use of Wiltec Guam v. Kahaluu Constr., 857 F.2d 600, 603 (9th Cir.1988). Dismissal is warranted only if the violation is due to willfulness, bad faith, or fault of the party. Id. (quotation omitted).
The court made no findings to support its dismissal. The record further reflects that the district court never entered a formal ruling on Shervin's motion for a protective order. At the hearing on defendants' motion for sanctions, Shervin offered to appear at a deposition sometime in the future. He was not given an opportunity to explain why he could not appear on the date set by the court at the sanction hearing. The case should not have been dismissed without a formal ruling on the protective order, and without an opportunity for Shervin to explain his inability to appear on May 5, 1987.
The judgment of the district court is REVERSED and REMANDED.
The panel unanimously finds this case suitable for disposition without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
Shervin also appeals the court's denial of his motion for reconsideration. However, because we reach the merits of Shervin's appeal from the order of dismissal, we do not consider whether the district court erred in denying his motion for reconsideration
In pertinent part, Rule 37 provides: "If a party ... fails (1) to appear before the officer who is to take the deposition, after being served with a proper notice, ... the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under paragraphs (A), (B), and (C) of subdivision (b)(2) of this rule." Fed.R.Civ.P. 37(d). Among the actions authorized under Rule 37(b)(2) is dismissal of an action or proceeding. Fed.R.Civ.P. 37(b)(2)(C). In addition a court may "require the party failing to obey the order ... to pay the reasonable expenses, including attorney's fees, caused by the failure...." Fed.R.Civ.P. 37(b)(2)