917 F2d 566 Cruikshank III v. Olsen

917 F.2d 566

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Charles M. CRUIKSHANK, III, Plaintiff-Appellant,
Kenneth OLSEN and Thomas Baiz, individually and as general
copartners in Baiz & Olsen, a law partnership,

No. 89-35879.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 9, 1990.
Decided Nov. 1, 1990.

Before TANG, NELSON and CANBY, Circuit Judges.

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Appellant Charles Cruikshank brought this legal malpractice action against Kenneth Olson and Thomas Baiz ("defendants"), the attorneys who represented him in a prior divorce proceeding. Jurisdiction was based on diversity of citizenship. 28 U.S.C. Sec. 1332. During the course of the litigation, Cruikshank failed to comply with a series of discovery orders. He also delayed making his expert witness, Sally Lanham, available to the defendants for her deposition. At her deposition, Lanham was unprepared to give her final opinion regarding the defendants' performance in the divorce action. The defendants then filed a motion to preclude Lanham from testifying at trial. The district court granted the motion and dismissed Cruikshank's suit with prejudice pursuant to Fed.R.Civ.P. 37(b)(2) and Carlson v. Morton, 229 Mont. 234, 745 P.2d 1133 (1987). Cruikshank appeals this ruling. We affirm.


A. Standard of Review


We review a district court's choice of sanctions under Rule 37(b)(2) for abuse of discretion. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642-43 (1976); Malone v. United States Postal Service, 833 F.2d 128, 130 (9th Cir.1987), cert. denied, 488 U.S. 819 (1988); United States v. Sumitomo Marine & Fire Ins. Co., 617 F.2d 1365, 1369 (9th Cir.1980). We will overturn a sanction only if we have "a definite and firm conviction that it was clearly outside the acceptable range of sanctions." Malone, 833 F.2d at 130.

B. Due Process Concerns


Our use of sanctions is tempered by the requirements of due process. For example, "when it has been established that failure to comply [with court discovery orders] has been due to inability, and not to willfulness, bad faith, or any fault of [the disobedient party]," the sanction of dismissal is improper. Societe Internationale Pour Participations Industrielles et Commerciales v. Rogers, 357 U.S. 197, 212 (1958). "Thus, neither dismissal nor preclusion of evidence that is tantamount to dismissal may be imposed when the failure to comply with discovery orders is due to circumstances beyond the disobedient party's control." Sumitomo Marine, 617 F.2d at 1369.


Cruikshank argues that his failure to comply with court orders was unintentional. The district court specifically found, however, that Cruikshank's violations of court orders were willful. See Memorandum and Order at 6, 8 (Cruikshank "deliberately refused to abide by the pretrial scheduling order entered by the court.") This factual determination is not clearly erroneous. See Zaldivar v. City of Los Angeles, 780 F.2d 823, 828 (9th Cir.1986). Cruikshank is an attorney charged with knowledge of the local rules and of the consequences of disregarding court orders. His failure to comply with the district court's directives indicates that the non-compliance was willful.


Cruikshank also contends that the court violated his due process rights by imposing a sanction without first affording him notice or an opportunity to be heard. Because we find that Cruikshank had sufficient notice and opportunity to be heard prior to the imposition of the sanction, we reject this argument.


At the pretrial conference, the district court warned Cruikshank that his further failure to cooperate would result in the dismissal of his case. Moreover, the defendants filed a motion to exclude Lanham as a witness. In addition, as an attorney, Cruikshank should have been aware that his conduct in this litigation jeopardized his suit. Thus, Cruikshank had notice that further misconduct could lead to sanctions, including the dismissal of his case.

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Furthermore, prior to the imposition of the sanction, Cruikshank had an opportunity to explain his conduct in this litigation. Following Lanham's deposition, the defendants moved to exclude Lanham as an expert. The district court took that motion under advisement. The defendants later renewed their motion. Shortly thereafter, and prior to the order of dismissal, Cruikshank filed with the court a memorandum, Lanham's declaration, and his own declaration attempting to explain the reasons for the delay in conducting Lanham's deposition and for her lack of preparation. Thus, the district court heard Cruikshank on the issue of Lanham's preclusion prior to ordering her preclusion. There was no due process violation here. We now consider the propriety of the sanction imposed.

C. Appropriateness of the Sanction


The district court appears to have stated alternative theories to justify its dismissal of Cruikshank's action. First, the district court reasoned that having precluded Cruikshank's only expert witness, it was forced to dismiss the action because Cruikshank could not establish a prima facie case of malpractice. See Carlson, 745 P.2d at 1136-38. The court's second theory was that dismissal of the case was itself an appropriate sanction for Cruikshank's misconduct. Because we conclude that the first theory supports the dismissal, we do not address the court's second theory.


Preclusion of an expert witness is an appropriate sanction when the circumstances so warrant. See Fed.R.Civ.P. 37(b)(2)(B); Jenkins v. Whittaker Corp., 785 F.2d 720, 727-28 (9th Cir.), cert. denied, 479 U.S. 918 (1986). In this case, Cruikshank was three months delinquent in informing the defendants of the identity of his expert. In addition, he failed to answer fully the defendants' interrogatory requesting a summary of Lanham's proposed testimony. After substantial delay, Cruikshank presented Lanham for deposition less than two weeks prior to the anticipated trial date. Moreover, at the deposition, Lanham had not completed her review of the case and was unprepared to state her opinions concerning the case. The district court was faced with the dilemma of either requiring the defendants to proceed to trial without the benefit of necessary discovery or again to continue the case. Either action would have prejudiced the defendants. See Henderson v. Duncan, 779 F.2d 1421, 1425 (9th Cir.1986). Under these circumstances, the district court did not abuse its discretion by precluding Lanham from testifying.


Once Lanham was precluded from testifying, Cruikshank was without an expert witness, for he had designated no other. Under Montana law, expert testimony is required in a legal malpractice action to establish that an attorney is liable for professional negligence. See Carlson, 745 P.2d at 1136-38. Because he had no expert witness, Cruikshank could not establish a prima facie case of malpractice. The case, therefore, was properly dismissed. Id. at 1138. As an attorney, Cruikshank should not have been surprised by this ruling. He should have known that his response to the motion to preclude Lanham was also a defense to the very life of his suit.


We also note that this is not a case in which the punishment for the misdeeds of an attorney are visited upon an innocent client. Cruikshank is representing himself in this action, so the sanction imposed by the district court affects only the party directly at fault.


Upon review of the record before us, we conclude that the district court did not abuse its discretion by precluding Lanham as an expert witness and, thereafter, by dismissing the case.




This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3