| 词汇 | Terminating Sanction2 |
| 释义 | `1`Terminating Sanction2 `2` "Legal Lexicon": It is appropriate to reject lesser sanctions where the court anticipates continued deceptive misconduct. See, e.g., TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917 (9th Cir. 1987); Chism v. Nat'l Heritage Life Ins. Co., 637 F.2d 1328, 1332 (9th Cir. 1981). "an explicit warning is not always necessary." Adriana Int'l Corp., 913 F.2d at 1413; see also Malone v. United States Postal Serv., 833 F.2d 128 (9th Cir. 1987), cert. denied, 488 U.S. 819 (1988). Admittedly, the decisions of this circuit send conflicting signals as to whether prejudice to the party moving for dismissal must be demonstrated for dismissal to be considered an appropriate sanction pursuant to the court's inherent power. While some opinions refer to prejudice as "purely optional" and "not required . . . but an important factor," other opinions describe prejudice as a "key factor" and "essential." Compare, Halaco Eng'g, 843 F.2d at 382 (finding prejudice factor is "purely optional"), United States v. Nat'l Medical Enters., Inc., 792 F.2d 906, 912-913 (9th Cir. 1986) (stating prejudice is not required for dismissal), and Combs, 927 F.2d at 486 (upholding dismissal for falsification of deposition testimony with no explicit consideration of prejudice), with Henry, 983 F.2d at 948 (referring to prejudice as a "key factor"), Wanderer v. Johnston, 910 F.2d 652, 656 (9th Cir. 1990) (stating that the element of prejudice is "essential"), and Adriana Int'l Corp., 913 F.2d at 1412 (holding where a court order is violated, prejudice and availability of less drastic sanctions are the decisive factors). "'[A] defendant suffers prejudice if the plaintiff's actions impair the defendant's ability to go to trial or threaten to interfere with the rightful decision of the case.'" Henry, 983 F.2d at 948 (quoting Adriana Int'l Corp., 913 F.2d at 1412). Rule 37(b)(2)(C) provides the sanction of dismissal. The 9th circuit has strictly construed the language of Rule 37(d). See, e.g., Pennwalt Corp. v. Durand-Wayland, Inc., 708 F.2d 492, 494 n.4 (9th Cir. 1983) (the rule does not apply to non-parties "because it addresses only a party's failure to appear . . . ."). |
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