BY BRISENO v. BALDWIN PARK UNIFIED SCHOOL DISTRICT (2019)

MEMORANDUM ***

Student E.B., by and with his parents Richard Briseno and Lorena Garcia (collectively, “E.B.”), appeals from the district court’s sua sponte dismissal of his action under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq., against Baldwin Park Unified School District. As the parties are familiar with the facts, we do not recount them here. We have jurisdiction under 28 U.S.C. § 1291, and we reverse and remand.¹

1. The district court abused its discretion in dismissing the action sua sponte for lack of prosecution after E.B. did not appear at a pretrial conference. See Oliva v. Sullivan, 958 F.2d 272, 274 (9th Cir. 1992) (providing the standard of review). The district court failed to consider less drastic alternatives. See id. (“A district court ‘abuses its discretion if it imposes a sanction of dismissal without first considering the impact of the sanction and the adequacy of less drastic sanctions.’ ” (citation omitted)). In addition, the district court failed to warn E.B. that dismissal was imminent after E.B. missed filing deadlines. See id. (“The district judge has an obligation to warn the plaintiff that dismissal is imminent.”). Accordingly, we reverse and remand for further proceedings.

2. We do not consider E.B.’s argument that the district court erred in denying his request for substitution of counsel because we lack jurisdiction to review this order. 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 omitted)).

3. We grant E.B.’s request to reassign this case to a different district judge. Reassignment is warranted here to “preserve the appearance of justice.” Krechman v. County of Riverside, 723 F.3d 1104, 1112 (9th Cir. 2013) (citation omitted). Thus, we instruct the Clerk of Court for the Central District of California to reassign this case to a different district judge on remand.

REVERSED AND REMANDED.

FOOTNOTES

1.   We grant E.B.’s unopposed motion to include a nonrecord declaration in the excerpts of record (Dkt. No. 16).