Commercial Litigation and Arbitration

Inherent Power Sanctions — Dismissal for Failure to Comply with Court-Ordered Deadline to File Amended Complaint — No Bad Faith Evident or Required — Appeals: Matters Not Specifically Argued in Opening Brief Not Considered

Zochlinski v. Univ. of Cal., 2017 U.S. App. LEXIS 6783 (9th Cir. April 11, 2017):

*   This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

Howard Alan Zochlinski appeals pro se from the district court's judgment dismissing his 42 U.S.C. § 1983 action for failure to comply with a court-ordered filing deadline. We have jurisdiction [*2]  under 28 U.S.C. § 1291. We review for an abuse of discretion. Pagtalunan v. Galaza, 291 F.3d 639, 640 (9th Cir. 2002). We affirm.

The district court did not abuse its discretion in dismissing Zochlinski's action for failure to comply with the court-ordered deadline for filing an amended complaint where Zochlinski instead submitted other detailed filings in lieu of the required amended complaint. See id. at 642-43 (setting forth the factors to consider before dismissing for failure to comply with a court order); see also Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) ("District courts have the inherent power to control their dockets and, in the exercise of that power they may impose sanctions including, where appropriate, . . . dismissal of a case." (citation and internal quotation marks omitted)).

The district court did not abuse its discretion in denying Zochlinski's motion for an extension of time to file an amended complaint because Zochlinski failed to show good cause for the extension. See Ahanchian v. Xenon Pictures, Inc., 624 F.3d at 1253, 1258-60 (9th Cir. 2010) (setting forth standard of review and the good cause requirement for extensions of time).

The district court did not abuse its discretion in denying Zochlinski's motion to alter or amend the judgment because Zochlinski failed to set forth any basis for relief. See Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993) (setting forth the standard of review [*3]  and grounds for relief under Federal Rule of Civil Procedure 59 and 60).

We reject as without merit Zochlinski's contention that the district court was required to provide him additional advice on how to draft a viable amended complaint.

We do not consider matters not specifically and distinctly raised and argued in the opening brief, or arguments, allegations, or materials raised for the first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009); United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) ("Documents or facts not presented to the district court are not part of the record on appeal.").

We do not consider Zochlinski's renewed request for appointment of counsel, raised in his opening brief, in light of the court's December 8, 2015 order (Docket Entry No. 37).


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