# Ann J. Malone v. United States Postal Service, an Agency of the United States > Court of Appeals for the Ninth Circuit · November 23, 1987 · 833 F.2d 128 URL: https://www.frixlaw.com/law-library/cases/9476913 ## Case - **Full name:** Ann J. MALONE, Plaintiff/Appellant, v. UNITED STATES POSTAL SERVICE, an Agency of the United States, Et Al., Defendant/Appellee - **Court:** Court of Appeals for the Ninth Circuit - **Decided:** November 23, 1987 - **Citations:** 833 F.2d 128; 9 Fed. R. Serv. 3d 897; 45 Empl. Prac. Dec. (CCH) 37,587; 45 Fair Empl. Prac. Cas. (BNA) 901; 1987 U.S. App. LEXIS 15321 - **Precedential status:** Published - **Opinion:** Dissent by Tang - **Judges:** Choy, Sneed, Tang - **Cited by:** 4,430 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9476913 ## How later opinions describe it (automated extraction) - holding that dismissal is appropriate where failure to comply with court’s orders prejudiced the defendants and burdened both the court’s docket and the public interest in speedy litigation, and the district court considered less drastic sanctions and warned the plaintiff befo… - holding that the plaintiff’s “last-minute notification of her decision not 6 to comply with the pretrial order” a few weeks before trial, after the defendant “had devoted 7 considerable effort to complying with” the order, prejudiced the defendant - finding 8 prejudice to defendant justified dismissal where defendant made diligent effort to comply with 9 pretrial order and plaintiff “waited until the last minute” to notify defendant that plaintiff would not 10 comply with pretrial order - concluding that, when the other factors favor dismissal, they are not outweighed by the public policy in favor of resolving a case on the merits - holding that standards for Rules 16(f) and Rule 37(b)(2) are 3 “basically the same” ## Opinion text TANG, Circuit Judge, 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, *135 779 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 . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9476913. Public record. Not legal advice.