Opinion
This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Brian M. Mcmahon, Reno, NV, for Petitioner-Appellee.
Kevin J. Mirch, Esq., Mirch & Mirch, Reno, NV, for Plaintiff-counter-defendant-Appellee.
Mark Krueger, AGNV-Office of the Nevada Attorney General, Carson City, NV, for Defendants.
Linda Duff, Bellingham, WA, pro se.
Tyrone Duff, Bellingham, WA, pro se.
Appeal from the United States District Court for the District of Nevada, Edward C. Reed, District Judge, Presiding. D.C. No. CV-99-00386-ECR.
Before: SCHROEDER, Chief Judge, TROTT, Circuit Judge, and RHOADES, District Judge.
The Honorable John S. Rhoades, Sr., Senior United States District Judge for the Southern District of California, sitting by designation.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Tyrone Duff and Linda Duff (the Duffs) appeal pro se the district court's default judgment entered in favor of Richard Lewis.
Notwithstanding the Duffs dilatoriness, default judgment was not the appropriate sanction in this case. See In re First T.D. & Investments, Inc., 253 F.3d 520, 532 (9th Cir.2001). Given the district court's previous orders dismissing the state actors--rendering it impossible for Lewis to prevail on the merits--imposing default judgment for the amount of $330,000 as a sanction for not participating is incongruous and ultimately excessive. See id. Although a sanction in this case is appropriate, requiring the Duffs to pay $330,000 dollars to Lewis proves too much. We recognize district courts' inherent need to have the ability to curtail dilatory conduct that would slow impermissibly the wheels of justice. We recognize also this district court's need to address the Duffs' feckless approach to this action. However, allowing Lewis to collect nearly a third of a million dollars based on a legal theory that has no potential for success is unreasonable
Page 767.
and unfair. Accordingly, we remand the case to the district court for the imposition of a more appropriate sanction against the Duffs and a determination based on the merits.
REVERSED and REMANDED.