Nascimento v. Dummer ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSEPH F. NASCIMENTO, 
Plaintiff-Appellant, No. 06-35062
v.
 D.C. No.
CV-04-00028-DWM
KATHERINE DUMMER; ROBYN
WEBER, OPINION
Defendants-Appellees.

Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted
September 25, 2007—Seattle, Washington
Filed November 21, 2007
Before: Betty B. Fletcher, Andrew J. Kleinfeld, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge Gould
15113
NASCIMENTO v. DUMMER 15115
COUNSEL
Kevin E. Vainio, Esq., Attorney at Law, Butte, Montana, for
appellant Joseph F. Nascimento.
15116 NASCIMENTO v. DUMMER
Robyn L. Weber, Weber Law Firm, PLLC, Helena, Montana,
pro se.
OPINION
GOULD, Circuit Judge:
This appeal requires us to consider issues relating to the
district court’s jurisdiction during the pendency of interlocu-
tory appeals and whether a sanction of dismissal was error.
Joseph Nascimento (“Nascimento”) raises three issues in this
appeal: (1) whether the Montana district court had jurisdiction
to set a discovery schedule before the mandate had issued on
Nascimento’s appeal of a Nevada district court order transfer-
ring the case to Montana; (2) whether the Montana district
court abused its discretion in denying Nascimento’s motion to
extend the discovery deadline; and (3) whether the Montana
district court erred in dismissing, or even had jurisdiction to
dismiss, Nascimento’s suit without prejudice as a sanction for
his and his attorney’s failure to appear at a scheduled pretrial
conference.
I
Nascimento filed a complaint in federal district court in
Nevada in July of 2003 asserting various claims against,
among other defendants, his ex-wife and the attorney who had
represented her in a custody dispute that was resolved several
years before this action. Nascimento alleged that improprie-
ties took place in connection with the custody dispute. In June
of 2004, the Nevada district court dismissed his claims against
most of the named defendants for lack of personal jurisdiction
but permitted the suit to continue against the ex-wife and for-
mer lawyer.1 With respect to these remaining defendants, the
1
The Nevada district court order that was entered in June of 2004 and
from which Nascimento appealed was actually an order denying his
NASCIMENTO v. DUMMER 15117
Nevada court exercised its authority under 28 U.S.C. § 1406to transfer the case to the District of Montana, where both
defendants resided and where most of the events underlying
Nascimento’s claims had taken place. Nascimento appealed
the district court’s refusal to reconsider both the dismissal of
the defendants and the transfer of the case to the United States
Court of Appeals for the Ninth Circuit, which ultimately dis-
missed the appeal on the ground that it did not relate to a
final, appealable order.
After the order dismissing this appeal was filed but nine
days before the mandate issued, the Montana district court
entered an order setting a discovery schedule in Nascimento’s
case. Nascimento requested an extension of the discovery
deadline because he stated that he was having difficulty
obtaining counsel in Montana, but the court denied his
motion. Nascimento then filed a Notice of Appeal, or alterna-
tively a Request for a Writ of Mandamus, in the Ninth Circuit
seeking review of the order denying his motion to extend dis-
covery. This Notice of Appeal was faxed to the district court
and entered in the docket.
One week after Nascimento’s Notice of Appeal of the dis-
covery order was filed, the district court held a final pretrial
conference, the date for which had been set more than a
month earlier. Neither Nascimento nor his attorney appeared
at that conference, nor did either of them alert the district
judge or opposing parties of their intention not to appear
because of the pending appeal. Robyn Weber, the former law-
yer for Nascimento’s ex-wife, was the only party who
attended the pretrial conference. At that conference District
motion for reconsideration of that court’s earlier order dismissing Nasci-
mento’s suit against most of the defendants for lack of personal jurisdic-
tion and transferring the case against the remaining defendants to
Montana. Nascimento appealed both the original order and the order deny-
ing his motion for reconsideration to the Ninth Circuit, but as only the
dates surrounding the second appeal are relevant to the case before us, the
procedural history of the first appeal is not discussed in this opinion.
15118 NASCIMENTO v. DUMMER
Judge Molloy declared that he would dismiss Nascimento’s
complaint as a sanction under Federal Rule of Civil Procedure
16(f) for his failure to appear as well as for his lack of prepa-
ration for trial. Nascimento’s complaint was thereafter dis-
missed without prejudice in a written order filed five days
later.
II
We consider each of the issues raised by Nascimento in
turn.
[1] (1) The Nevada district court order that Nascimento
appealed to the Ninth Circuit in June of 2004 was not a final,
appealable order. The Nevada district court order of which
Nascimento was seeking reconsideration had two compo-
nents: dismissal of some, but not all, of the defendants for
lack of personal jurisdiction; and transfer of the claims against
the remaining defendants to the District of Montana under 28
U.S.C. § 1406. Neither of these orders is a final appealable
order, nor does either one satisfy the collateral order doctrine.
See Special Investors, Inc. v. Aero Air, Inc., 360 F.3d 989,
993 (9th Cir. 2004) (dismissal of some defendants for lack of
personal jurisdiction while allowing suit to continue against
others is not directly appealable); Varsic v. U.S. District
Court, 607 F.2d 245, 251 (9th Cir. 1979) (transfer orders
under 28 U.S.C. § 1406 are not directly appealable). Conse-
quently, the denial of Nascimento’s motion to reconsider
these earlier interlocutory orders was also not independently
appealable. See Long v. Bureau of Economic Analysis, 646
F.2d 1310, 1317 (9th Cir. 1981) (vacated on other grounds by
454 U.S. 934). When a Notice of Appeal is defective in that
it refers to a non-appealable interlocutory order, it does not
transfer jurisdiction to the appellate court, and so the ordinary
rule that the district court cannot act until the mandate has
issued on the appeal does not apply. See Ruby v. Secretary of
the Navy, 365 F.2d 385, 388-89 (9th Cir. 1966) (en banc).
Nascimento’s June 2004 Notice of Appeal was defective in
NASCIMENTO v. DUMMER 15119
that it sought to appeal non-appealable orders. Thus we never
had jurisdiction over that appeal, and it was proper for the
Montana district court to begin exercising jurisdiction over
the case.2
[2] (2) The Montana district court did not abuse its discre-
tion by denying Nascimento’s motion to extend the discovery
deadline. See Century 21 Real Estate Corp. v. Sandlen, 846
F.2d 1175, 1181 (9th Cir. 1988). Nascimento had nearly five
months to conduct discovery after the order setting the dis-
covery schedule was entered, but he made no attempts to do
so until or immediately before the deadline. His claim that he
was delayed in finding Montana counsel to help in the discov-
ery process because of uncertainty about the jurisdictional and
venue issues in the case is not persuasive, because the man-
date in his appeal on those grounds issued only nine days after
the discovery schedule in the Montana district court was set.
Finally, the events giving rise to Nascimento’s claims against
his ex-wife and her lawyer, which arose following a domestic
relations dispute, had occurred several years earlier, and had
lasted in some form or another for several years, so the factual
contours of the issues about which he wanted information
through discovery were established and did not require more
time to develop. The district court in Montana acted within its
sound discretion in denying Nascimento’s motions for an exten-
sion.3
2
Even if the Montana district court had erred in initiating proceedings
in the case before the mandate had issued, any such error would be made
moot by that court’s later decision to dismiss Nascimento’s case as a sanc-
tion for his non-appearance at the pretrial conference. See Hall v. Beals,
396 U.S. 45, 48 (1969) (holding that an issue is moot when it has “lost its
character as a present, live controversy of the kind that must exist if we
are to avoid [rendering] advisory opinions on abstract propositions of
law.”).
3
Though the denial of a motion to extend discovery is generally not
appealable, in this case it merged into the district court’s final appealable
order dismissing Nascimento’s case without prejudice, and so we have
jurisdiction to review it. Cf. Chacon v. Babcock, 640 F.2d 221 (9th Cir.
1981) (holding that an order is not appealable unless it disposes of all
claims as to all parties or judgment is entered in compliance with Fed. R.
Civ. P. 54(b)).
15120 NASCIMENTO v. DUMMER
[3] (3) The district court also did not abuse its discretion
when it dismissed Nascimento’s case without prejudice as a
sanction under Federal Rule of Civil Procedure 16(f) for his
and his attorney’s failure to appear at a scheduled pretrial con-
ference or to otherwise prepare for trial. The district court
properly considered the factors relevant to its decision to dis-
miss the complaint as a sanction for a rules violation and con-
cluded that no less severe sanction would be appropriate
under the circumstances and that continuing the suit in light
of Nascimento’s non-cooperation would risk prejudicing the
defendants. See Malone v. United States Postal Service, 833
F.2d 128, 130 (9th Cir. 1987). A dismissal sanction will be
overturned if the reviewing court has a definite and firm con-
viction that the sanction was clearly outside an acceptable
range. Chism v. National Heritage Life Ins. Co., 637 F.2d
1328, 1331 (9th Cir. 1981) (overruled on other grounds by
Bryant v. Ford Motor Co., 832 F.2d 1080 (9th Cir. 1987) (en
banc)). Here, dismissal of Nascimento’s complaint was an
appropriate and permissible response of the district court to
his failure to appear or to explain that he would not be appear-
ing because of his pending appeal, at the scheduled pretrial
conference. The district court did not abuse its discretion in
imposing this sanction.
[4] Finally, that Nascimento had already entered a Notice
of Appeal regarding the denial of his motion to extend discov-
ery did not deprive the Montana district court of jurisdiction
to dismiss his complaint. Discovery orders, such as an order
not to extend the time for discovery, are interlocutory and
thus not usually subject to immediate appeal. See David v.
The Hooker, Ltd., 560 F.2d 412, 415 (9th Cir. 1977). As
explained above, appeals of such interlocutory orders do not
transfer jurisdiction to the appellate court and thus do not strip
the district court of jurisdiction to conduct further proceedings
in the case. Ruby v. Secretary of the Navy, 365 F.2d 385, 388-
89 (9th Cir. 1966) (en banc). This precedent signifies that
when a litigant makes an improper interlocutory appeal, such
action will not throw a monkey wrench into the machinery of
NASCIMENTO v. DUMMER 15121
our justice system. Instead, when an improper appeal is taken,
the district court retains its jurisdiction to act on the case, and
its extant orders must be followed by the litigants, at risk of
grave sanction.
[5] Though Nascimento also framed his Notice of Appeal
as a petition for a writ of mandamus, such petitions for
extraordinary writs do not destroy the district court’s jurisdic-
tion in the underlying case. See Ellis v. U.S. District Court,
360 F.3d 1022, 1023 (9th Cir. 2004) (en banc). Further, even
if the order denying Nascimento an extension had been imme-
diately appealable under the collateral order doctrine, it only
would have divested the district court of jurisdiction over the
discovery issue and would not have affected its jurisdiction
over other matters in the case. See Britton v. Co-op Banking
Group, 916 F.2d 1405, 1412 (9th Cir. 1990). No stay of the
district court proceedings pending resolution of the appeal had
been sought or granted, and so Nascimento remained under an
obligation to comply with the district court’s orders and pre-
trial timetable notwithstanding his appeal. His failure to com-
ply with court orders was properly sanctionable by a dismissal
of his case without prejudice.4
AFFIRMED.
4
Such a dismissal without prejudice is a final appealable order open to
direct review by this court. See United States v. Wallace & Tiernan Co.,
336 U.S. 793, 794 n.1 (1949) (“That the dismissal was without prejudice
to filing another suit does not make the cause unappealable, for denial of
relief and dismissal of the case ended this suit so far as the District Court
was concerned.”); see also De Tie v. Orange County, 152 F.3d 1109, 1111
(9th Cir. 1998) (“The dismissal of an action, even when it is without preju-
dice, is a final order.”); Thompson v. Potashnick Constr. Co., 812 F.2d
574, 576 (9th Cir. 1987) (“That the dismissal is without prejudice and the
litigation may be renewed does not affect its appealability . . . .”).