Metropolitan News-Enterprise


Monday, October 19, 2020


Page 1


Ninth Circuit:

Axing Suit Based on Missed Deadline Was Too Drastic

Three-Judge Panel Orders Reinstatement of Injured Shopper’s Personal Injury Action Against Walmart


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals has reinstated a personal injury action against Walmart, holding that the District Court judge went too far in dismissing the action one day after the deadline for the plaintiff to file pre-triakl documents.

In a memorandum opinion filed Thursday, a three-judge panel declared that Judge John F. Walter of the Central District of California abused his discretion in dismissing the action and then denying a motion to set aside that dismissal. The panel—comprised of Judges Patrick J. Bumatay and Andrew D. Hurwitz and Senior Judge Andrew J. Kleinfeld—found that two factors weighed against dismissal: that there was “very little” prejudice to Walmart “if at all” by virue of the plaintiff’s failure to file the required diocuments on time, and that less drastic sanctions were available.

Although Walter dismissed the action without prejudice, the panel noted, the action amounted to a dismissal without leave to amend because the suit was filed less than two weeks before the statute of limitation expired.

The suit, brought by Ra’Chel King—based on injuries she sustained when a Walmart employee bumped into her hip with a shopping cart at a store in Paramount—was filed in the Los Angeles Superior Court on March 14, 2018, and removed by Walmart to the U.S. District Court on Nov. 16, 2018.

District Court’s Explanation

In dismissing the action on Aug. 23, 2019, Walter explained:

“Pursuant to the Court’s Scheduling and Case Management Order (‘CMO’)…the parties were ordered to file a Pre-Trial Conference Order; Motions in Limine; Memorandum of Contentions of Fact and Law; Pre-Trial Exhibit Stipulation; Summary of Witness Testimony and Time Estimates; Status Report re: Settlement; Agreed Upon Set of Jury Instructions and Verdict Forms; and Joint Statement re: Disputed Instructions and Verdicts (‘Pre-Trial Documents’) by August 22, 2019. However, rather than comply with the Court’s CMO in connection with these filings, Plaintiffs counsel, Vaziri Law Group APC (‘Vaziri’), violated numerous basic rules that are necessary to ensure that cases proceed to trial in an orderly and timely fashion….Specifically, Vaziri has failed to cooperate in the preparation of the required joint Pre-Trial Documents and has failed to file any of Plaintiffs required Pre-Trial Documents.”

Walter relied on Rule 16, which authorizes dismissing an action based on a party’s failure to abide by a court order. He said:

“Counsel’s conduct has frustrated the Court’s ability to manage its docket, the purpose of Rule 16, and the parties’ ability to resolve this action in a fair manner. Rule 16 is designed to help remove extraneous disputes from the case and serves to expedite the determination of the merits, thereby saving time and expense for litigants and ease the burden on the courts by facilitating the handling of congested dockets.”

Alternatives Considered

The judge said he had “considered the availability of less drastic sanctions” but found “that Vaziri’s complete lack of respect for this Court’s orders, rules, and procedures, warrants dismissal of this action.”

He cited a Dec. 30, 2008 opinion from the Eastern District of California, Chatman v. Johnson, as saying:

“Warning a plaintiff that failure to take steps towards resolution of his action on the merits will result in dismissal satisfies the requirement the court consider alternatives.”

Walter pointed out that the CMO warns:

“If counsel fail to cooperate in the preparation of the required Pre-Trial documents, fail to file the required Pre-Trial documents, or fail to appear at the Pre-Trial Conference and such failure is not otherwise satisfactorily explained to the Court...the cause shall stand dismissed for failure to prosecute if such failure occurs on the part of the plaintiff.”

Reconsideration Sought

In its memorandum of points and authorities in support of a motion for an order setting aside the dismissal, the mid-Wilshire firm of Vaziri Law Group set forth:

“…Defendant obtained a ‘wind fall’ by the dismissal of the action. The case is weeks from trial and the only remaining tasks before trial were the filing of the Joint Trial Documents and attending the Pre-Trial Conference.  Plaintiff on the other hand has lost her right to try her case on the merits. Plaintiff has been deprived of her ‘day in court.’ Plaintiff counsel made all reasonable effort to comply with the CMO, but due to trial engagement of the Partner as well as the heavy calendar of the Associate, Plaintiff ran out of time to complete her portion of the trial documents.”

The partner in charge of the case was Mark J. Giannamore, who said in a declaration (with paragraph numbering omitted):

“I am embarrassed and humbled by the Court’s action of dismissal and never intended to not comply with the Local Rules and the Court’s CMO.

“My client, Rachel King, has undergone two surgeries as an alleged result of the defendant’s negligence.

“I submit it would be a true injustice to deprive her of her day in court because of the mistake of her counsel—a mistake with which she has not played any role.

“I accept full responsibility for the failure to properly file trial documents as ordered by this court.

“Even with my busy schedule, I owed my client Miss Rachel King the best representation possible and I have failed her in this regard. I would request that the court not penalize Miss King for my failures and reinstate this action so she may have a trial on the merits.”

Ninth Circuit Opinion

The Ninth Circuit, in determining that Vaziri’s failure to meet the deadline was not prejudicial to Walmart, said:

“A defendant is prejudiced when the plaintiff’s failure to comply with a pretrial order impairs the defendant’s ability to go to trial or threatens to interfere with the rightful decision of the case….King’s attorneys state that, when they became aware of their oversight on August 22, 2019, they fully intended and expected to file all required documents by August 23, the day after the deadline, along with a declaration to the court apologizing for and explaining the tardy submission. They also assert that they were only prevented from filing the documents one day late by the court’s dismissal of the action.

“The district court found that Walmart’s attempts to cooperate with King were wasted. But if the court had not dismissed the action, both parties would have filed their completed pretrial documents by August 23, one day after the deadline. Such a small delay would have neither impaired Walmart’s ability to go to trial nor threatened to interfere with the rightful decision of the case.”

The appeals court found inadequate Walter’s statement that alternative sanctions were considered because those alternatives were not “explicitly discussed” by him. It said:

“The district court did not, so far as the record shows, consider any of [the] alternative sanctions before dismissing the case and did not explain why alternative sanctions would not have sufficed.”

The case is King v. Wal-Mart Stores, Inc., 19-56255.


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