Appeal from the United States District Court for the Northern District of California Phyllis J. Hamilton, District Judge, Presiding D.C. No. 06-CV-05158-PJH.
The opinion of the court was delivered by: W. Fletcher, Circuit Judge
Argued and Submitted July 13, 2009 -- San Francisco, California
Before: Cynthia Holcomb Hall, William A. Fletcher and Richard A. Paez, Circuit Judges.
Shelly Lal brought suit against the California Highway Patrol ("CHP") and officers Frank Newman and Matthew Otterby (collectively, "Defendants") for the shooting death of her husband. The district court dismissed her case with prejudice under Federal Rule of Civil Procedure 41(b) for failure to prosecute when her attorney failed to meet deadlines and attend hearings. When Lal later learned of her attorney's behavior and the dismissal of her suit, she hired a new attorney and filed a motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b)(6). The district court denied the motion.
We reverse. We hold, pursuant to Community Dental Services v. Tani, 282 F.3d 1164 (9th Cir. 2002), that an attorney's gross negligence constitutes an extraordinary circumstance warranting relief from a judgment dismissing the case for failure to prosecute under Rule 41(b).
Lal's husband Kamal Lal was shot and killed by CHP officers Newman and Otterby on March 6, 2005. On March 8, 2005, Lal retained Charles Spahr to represent her and her minor son. In December 2005, Spahr and his co-counsel Mark Webb filed suit against Defendants in state court on behalf of Lal, her son, and her husband's estate. On August 23, 2006, Defendants removed to federal court.
On November 15, 2006, the district court allowed Webb to withdraw. Spahr remained as Lal's attorney. On November 26, Defendants' counsel sent Spahr their initial Rule 26 disclosures. Spahr made no initial disclosures. Two days later, Defendants filed a case management statement. The initial case management conference was scheduled for November 30. Defense counsel and Spahr appeared at the scheduled time, but the court continued the conference to January 18, 2007. The court ordered counsel for both parties to confer before January 18 and ordered Spahr to provide Rule 26 disclosures within two weeks. Spahr did neither.
According to her sworn statement provided to the district court, Lal called Spahr in mid-December 2006 to check on the status of her case. She recounts that Spahr told her that he had participated in a conference call with defense counsel and the district court judge, that the judge wanted the parties to settle the case, and that the next meeting would take place in approximately two to three months. He did not tell her about the scheduled January 18 case management conference.
Neither Spahr nor Lal appeared at the January 18 management conference. Lal states that she did not know about the hearing and that she would have appeared, either with or without Spahr, had she known about it. On January 19, the district court entered a written order directing Lal and Spahr to show cause why sanctions should not be imposed "including dismissal of the complaint for failure to prosecute and/or monetary sanctions for her repeated refusal to comply with the court's orders." The court set a hearing on the order to show cause for February 1 and warned that "[i]f plaintiff fails to appear her complaint will be dismissed."
Neither Lal nor Spahr appeared on February 1. Lal states that she did not know about this second hearing. At the hearing, counsel for Defendants stated that they had received no communications from Spahr and renewed a previous request that the court dismiss the case. The next day, in a written order, the district court dismissed for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).
Lal states that she called Spahr in March to check on her case. She states that Spahr told her that Defendants needed more time for discovery. Lal left Spahr a voicemail on June 1. Spahr replied in a text message, telling Lal that he would call her that evening. But Spahr did not call. Spahr left a voicemail about a week later, telling Lal that he was in the process of filing pre-trial motions and that Webb had tentatively agreed to work on her case again.
Lal left another voicemail for Spahr in August, but he did not respond. Lal then called Webb's office and left a message for Webb. Webb also did not respond. Lal left another voice-mail for Spahr in September. He finally returned her call on September 21. He told her he had scheduled depositions in her case for late November. When Lal asked about additional depositions, Spahr said it would be better to wait to discuss her case until Webb returned the following week. Spahr then scheduled a conference call for himself, Webb, and Lal for September 25. Spahr did not call at the time scheduled for the conference call. Lal called Spahr 30 minutes later and left a voicemail. She then sent him an email the next day about their failed conference call. She received no response to either her voicemail or email.
Lal states that she called attorney Wynn Herron at about this time to "get a second opinion." Herron returned her call on October 1, 2007. He told Lal that the district court had dismissed her case on February 2, 2007, because Spahr had failed to appear for a hearing. Lal states that she was shocked and told Herron she was never informed of this development. Herron advised her to file a complaint with the California State Bar. Lal asked Herron about the merits of her case, but Herron told Lal that he did not handle such cases.
Lal states that she called Spahr later that same day. Spahr told her that he had missed the district court hearing for a good reason and that he had re-filed her case in state court. Lal asked for copies of the papers he filed, along with the case numbers. Lal then called Herron again and asked him to find the state court case Spahr claimed he filed on her behalf. Herron could find no pending cases filed on behalf of Lal or her son.
Lal states that she called Spahr the next day, October 2, to get copies of the documents he claimed to have filed. Spahr told her he needed 24 to 48 hours to retrieve the documents, that he had moved offices, and "if anything fell through the cracks, that he would make it up to me." Lal was distraught and spoke to her priest, who called Spahr. Spahr left Lal a message on her voicemail at work at 7:00 p.m. on October 3, suggesting that they set up a meeting the next morning to discuss Spahr's plans for Lal's case. Lal states that she was not at work on the morning of October 4, and did not receive the message in time to meet with Spahr. It is unclear whether the meeting would have actually taken place if Lal had received the message in time.
Lal filed a complaint with the State Bar eight days later, on October 12. Spahr called her that same day and told her he was filing a "pre-hearing motion" in her case. Lal again asked for copies of all of the documents filed in her case. After not receiving anything for another two weeks, Lal called Spahr again. Spahr said he would deliver the papers to her house that evening, but he never came.
Lal called the State Bar in November and spoke with Willis Shalita, the investigator assigned to her complaint. Shalita advised Lal to get another attorney. Lal attempted to retain attorney Paula Canny that same day. Lal was told that Canny was undergoing chemotherapy and might not be able to take on her case, and that she would need to read everything before making a decision. Lal states that a person in Canny's ...