917 F2d 28 United Pacific Insurance Company v. Bevan Corporation

917 F.2d 28

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

BEVAN CORPORATION, Timothy Warren Bevan, Marlene Margo
Bevan, Defendants-Appellants.

No. 89-55622.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 2, 1990.
Decided Oct. 25, 1990.

Before BOOCHEVER, BEEZER and TROTT, Circuit Judges.

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The Bevan Corporation and Timothy and Marlene Bevan (collectively "Bevan") appeal the district court's grant of United Pacific Insurance Company's and Planet Insurance Company's (collectively "United") motion to enter default judgment finding Bevan failed to comply with the court's discovery order and failed to comply with the local rule requiring new counsel after its original lawyer withdrew. We affirm.



Severe sanctions, including default judgment, are authorized only in extreme circumstances. "[I]n order to warrant imposition of [default judgment], the violation(s) must be 'due to willfulness, bad faith, or fault of the party.' " United States ex rel. Wiltec Guam, Inc. v. Kahaluu Constr. Co., 857 F.2d 600, 603 (9th Cir.1988) (citation omitted). As Bevan concedes, the court found Bevan's violations to be willful. Nevertheless, Bevan argues the court did not make explicit factual findings to support that conclusion. Kahaluu does not require such findings. Moreover, Bevan's failure to comply with the discovery order and failure to obtain a new lawyer after Crandall withdrew supported the court's conclusion.


Bevan also argues that the court failed to discuss the application of less drastic sanctions before entering default judgment.


We have indicated a preference for explicit discussion by the district court of the feasibility of alternatives when ordering dismissal.... However, we have never held that explicit discussion of alternatives is necessary for an order of dismissal to be upheld.... Moreover, explicit discussion of alternatives is unnecessary if the district court actually tries alternatives before employing the ultimate sanction of dismissal.


Malone v. United States Postal Service, 833 F.2d 128, 132 (9th Cir.1987) (citations omitted), cert. denied, 488 U.S. 819 (1988). Here, before ultimately defaulting Bevan, the district court denied United's first motion for default, extended the discovery cut-off date, and ordered Bevan to comply with United's discovery requests. In addition, we note that United's counsel, before seeking sanctions, gave Bevan many opportunities to comply with its requests.


In reviewing the court's consideration of less drastic sanctions, the appellate court also looks to whether the court warned of the possibility of default. Kahaluu, 857 F.2d at 605. Bevan argues the court should have issued a warning, particularly in light of Bevan's pro se status. The court warned Bevan, indirectly, by requiring Crandall to certify that he informed Bevan of its obligation to obtain a new lawyer within 20 days to avoid the risk of default. Bevan does not deny receipt of that warning. Also, the filing, and denial of United's first default motion, can be viewed as a warning.

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Although it would have been preferable for the court to have offered a more explicit warning, especially as default is a sanction that should rarely be imposed, the court did not abuse its discretion in entering a default judgment against Bevan. Further, the court's denial of Bevan's motion to vacate the default judgment was not an abuse of discretion. Finally, United is entitled to attorney's fees, on appeal, pursuant to its indemnity agreements with Bevan.




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