## Facts

- Ann J. Malone filed a Title VII employment-discrimination action against the United States Postal Service.
- The first trial (November 1984) was marked by plaintiff’s counsel’s confused and inefficient presentation; the district court restricted the presentation of witnesses and evidence.
- After initially denying plaintiff’s mistrial motion, the district court declared a mistrial on its own motion the same day, later attributing it to counsel’s lack of preparation.
- The district court issued a detailed pretrial order for the retrial requiring, among other items, (1) complete witness lists and (2) a thorough list of every direct examination question and anticipated answer by a specified deadline; it also stated no oral argument would be entertained and continuances would not be accepted.
- The Postal Service expended substantial effort complying with the pretrial order.
- Before the deadline, plaintiff’s counsel told defense counsel Malone would not comply with the order; after the deadline passed, Malone filed untimely objections and sought recusal, modification of the order, and a continuance.
- The Postal Service moved to dismiss with prejudice under Federal Rules of Civil Procedure 16(f) and 41(b).
- The district court rejected counsel’s asserted inability to afford compliance and dismissed the action with prejudice as a sanction for violating the pretrial order.
- Malone appealed the dismissal.

## Issues

1. Whether the district court abused its discretion by dismissing the action with prejudice under Rules 16(f) and 41(b) for willful failure to comply with a pretrial order.
2. Whether the pretrial order was invalid or unenforceable because of its unusual detail and burdens.
3. Whether dismissal improperly penalized the client for counsel’s misconduct.
4. Whether the district court adequately considered less drastic sanctions before dismissal.

## Decision

- The Ninth Circuit affirmed the dismissal with prejudice.
- The court held the pretrial order was a valid case-management measure issued in response to prior trial disorganization.
- The court found the noncompliance was willful, including an express refusal to comply and untimely objections filed only after the deadline.
- Applying the five-factor dismissal test, the court concluded the first three factors favored dismissal, the merits-policy factor weighed against dismissal but was outweighed, and the less-drastic-sanctions factor was satisfied.
- The court held that litigants are generally bound by their counsel’s actions and omissions, making dismissal permissible even if counsel was primarily at fault.
- A partial dissent would have required stronger consideration of intermediate sanctions, including sanctions directed at counsel rather than termination of the claim.

## Legal Principles

- A district court may dismiss an action with prejudice under Rules 16(f) and 41(b) for willful failure to obey a valid pretrial order; the same general standard governs dismissal under either rule.
- In determining whether dismissal is appropriate, courts weigh: (1) the public interest in expeditious resolution, (2) docket management, (3) prejudice to the defendant, (4) the policy favoring decisions on the merits, and (5) the availability of less drastic sanctions.
- A detailed pretrial order may be justified as a management tool to ensure trial readiness, particularly after prior failures of preparation.
- Willfulness may be shown by categorical refusal to comply and disregard of clear deadlines, as opposed to inadvertence or misunderstanding.
- Consideration of less drastic sanctions may be satisfied where the record shows prior measures and clear warnings that further noncompliance would impair orderly adjudication.
- A party is ordinarily accountable for the conduct of freely chosen counsel in the litigation.

## Conclusion

The Ninth Circuit held that the district court acted within its discretion in dismissing Malone’s Title VII action with prejudice because a valid pretrial order was willfully disobeyed, the resulting delay and burden prejudiced the defendant and interfered with docket control, and the court had already used lesser measures aimed at securing trial readiness.


Malone v. U.S. Postal Serv., 833 F.2d 128 (9th Cir. 1987)