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TERMINATING SANCTION

A punishment for grossly improper litigation behavior that ends the offending party's participation in the case, usually consisting of a default or dismissal.

Federal Rules of Civil Procedure Rule 41 (b) states: "Involuntary Dismissal: Effect Thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits."

Before imposing the harsh sanction of dismissal, the district court must weigh several factors:

(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its dockets; (3) the risk of prejudice to the party seeking sanctions; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions. Henry, 983 F.2d at 948. For dismissal to be proper, the conduct to be sanctioned must be due to "'willfulness, fault, or bad faith.'" Id. at 946 (quoting Fjelstad v. American Honda Motor Co., 762 F.2d 1334, 1337 (9th Cir. 1985)). Due process concerns further require that there exist a relationship between the sanction, the violation and its relationship to the litigation Phoceene Sous-Marine, S.A. v. U.S. Phosmarine, Inc., 682 F.2d 802, 806 (9th Cir. 1982) (holding default entry violated due process where the sanctioned party's deception was wholly unrelated to the merits of the controversy).

It is well settled that dismissal is warranted where a party has engaged deliberately in deceptive practices that undermine the integrity of judicial proceedings: "courts have inherent power to dismiss an action when a party has willfully deceived the court and engaged in conduct utterly inconsistent with the orderly administration of justice." Wyle, 709 F.2d at 589 (upholding dismissal of complaint pursuant to court's inherent power where plaintiff's denials of material fact were knowingly false and plaintiff willfully failed to comply with discovery orders); see also Combs v. Rockwell Int'l Corp., 927 F.2d 486 (9th Cir. 1991) (affirming dismissal under the court's inherent power as appropriate sanction for falsifying a deposition), cert. denied, 502 U.S. 859 (1991); Halaco Eng'g Co., 843 F.2d at 380 (reversing dismissal where alleged misconduct peripheral to merits of case, but observing, "[d]ismissal under a court's inherent powers is justified . . . in response to abusive litigation practices . . . and to insure the orderly administration of justice and the integrity of the court's orders."); North Am. Watch Corp. v. Princess Ermine Jewels, 786 F.2d 1447, 1451 (9th Cir. 1986) (affirming dismissal of defendant's counterclaim under court's inherent power for concealing documents and violating court's discovery order); Phoceene Sous-Marine, S.A., 682 F.2d at 806 (noting "[i]t is firmly established that the courts have inherent power to dismiss an action or enter a default judgment to ensure the orderly administration of justice and the integrity of their orders[,]" but reversing entry of default because the deception was "peripheral" to the merits of the controversy).

In determining whether a district court has properly considered the adequacy of less drastic sanctions before dismissing a party's case, appellate courts consider (1) whether the district court explicitly discussed the feasibility of less drastic sanctions and explained why such alternate sanctions would be inappropriate; (2) whether the district court implemented alternative sanctions before ordering dismissal; and (3) whether the district court warned the party of the possibility of dismissal before ordering dismissal. Adriana Int'l Corp., 913 F.2d at 1412-13.

It is appropriate to reject lesser sanctions where the court anticipates continued deceptive misconduct. See, e.g., TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917 (9th Cir. 1987); Chism v. Nat'l Heritage Life Ins. Co., 637 F.2d 1328, 1332 (9th Cir. 1981).

"an explicit warning is not always necessary." Adriana Int'l Corp., 913 F.2d at 1413; see also Malone v. United States Postal Serv., 833 F.2d 128 (9th Cir. 1987), cert. denied, 488 U.S. 819 (1988).

Admittedly, the decisions of this circuit send conflicting signals as to whether prejudice to the party moving for dismissal must be demonstrated for dismissal to be considered an appropriate sanction pursuant to the court's inherent power. While some opinions refer to prejudice as "purely optional" and "not required . . . but an important factor," other opinions describe prejudice as a "key factor" and "essential." Compare, Halaco Eng'g, 843 F.2d at 382 (finding prejudice factor is "purely optional"), United States v. Nat'l Medical Enters., Inc., 792 F.2d 906, 912-913 (9th Cir. 1986) (stating prejudice is not required for dismissal), and Combs, 927 F.2d at 486 (upholding dismissal for falsification of deposition testimony with no explicit consideration of prejudice), with Henry, 983 F.2d at 948 (referring to prejudice as a "key factor"), Wanderer v. Johnston, 910 F.2d 652, 656 (9th Cir. 1990) (stating that the element of prejudice is "essential"), and Adriana Int'l Corp., 913 F.2d at 1412 (holding where a court order is violated, prejudice and availability of less drastic sanctions are the decisive factors).

"'[A] defendant suffers prejudice if the plaintiff's actions impair the defendant's ability to go to trial or threaten to interfere with the rightful decision of the case.'" Henry, 983 F.2d at 948 (quoting Adriana Int'l Corp., 913 F.2d at 1412).

Rule 37(b)(2)(C) provides the sanction of dismissal. The 9th circuit has strictly construed the language of Rule 37(d). See, e.g., Pennwalt Corp. v. Durand-Wayland, Inc., 708 F.2d 492, 494 n.4 (9th Cir. 1983) (the rule does not apply to non-parties "because it addresses only a party's failure to appear . . . .").

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