Opinion
21-35179
06-29-2022
RAUL MENDEZ, Plaintiff-Appellant, v. COMMUNITY HEALTH CLINICS, INC., doing business as Terry Reilly Health Services, Defendant-Appellee.
NOT FOR PUBLICATION
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Appeal from the United States District Court for the District of Idaho David C. Nye, District Judge, Presiding D.C. No. 1:16-cv-00425-DCN
Before: SILVERMAN, WATFORD, and FORREST, Circuit Judges.
MEMORANDUM
Raul Mendez appeals pro se from the district court's judgment dismissing his employment discrimination action as a discovery sanction under Federal Rule of Civil Procedure 37(b). We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion. Rio Props., Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1022 (9th Cir. 2002). We affirm.
The district court did not abuse its discretion in dismissing Mendez's action after Mendez twice failed to appear for his deposition and the court found that Mendez's behavior was willful and in bad faith. See Fed.R.Civ.P. 37(b)(2); In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1233 (9th Cir. 2006) ("Rule 37 sanctions, including dismissal, may be imposed where the violation is due to willfulness, bad faith, or fault of the party." (citation and internal quotation marks omitted)); Rio Props., 284 F.3d at 1022 (discussing five factors courts must weigh in determining whether to dismiss a case for failure to comply with a court order).
We reject as meritless Mendez's contentions that in dismissing this action as a sanction the district court was biased against him, failed to construe his pro se filings liberally, or failed to comply with the Federal Rules of Civil Procedure and the district court's local rules.
We do not consider matters not specifically and distinctly raised and argued in the opening brief, or arguments and allegations raised for the first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
In light of our disposition, we do not consider Mendez's challenge to the district court's interlocutory orders. See Al-Torki v. Kaempen, 78 F.3d 1381, 1386 (9th Cir. 1996) ("[I]nterlocutory orders, generally appealable after final judgment, are not appealable after a dismissal for failure to prosecute, whether the failure to prosecute is purposeful or is a result of negligence or mistake." (citation and internal quotation marks omitted)).
Community Health Clinics, Inc.'s request for sanctions, set forth in the answering brief, is denied.
AFFIRMED.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).