No.

07-17369

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Appeal from the U.S. District Court for Nevada,

No. CV-05-00121-LRH/VPC

HIAWATHA HOEFT-ROSS; et al.,

Plaintiffs/Appellants,

v.

WERNER HOEFT, Trustee of the Hoeft

Revocable Trust; et al.,

Defendants/Appellees.

OPENING BRIEF FOR THE APPELLANTS

Jared Richards, Esq.

SNELL & WILMER L.L.P.
3883 Howard Hughes Parkway
Suite 1100
Las Vegas, NV 89169
Telephone (702) 784-5200
Facsimile (702) 784-5252
Attorneys for Appellant
HIAWATHA HOEFT-ROSS
 CORPORATE DISCLOSURE STATEMENT

The Appellants are not associated with any corporate entity that Fed. R.

App. P. 26.1 requires Appellants to disclose.

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 TABLE OF CONTENTS

SECTION PAGE NO.

CORPORATE DISCLOSURE STATEMENT ............................................................i

TABLE OF CITATIONS. ...........................................................................................v

STATEMENT OF JURISDICTION............................................................................1

ISSUES PRESENTED.................................................................................................2

STATEMENT OF THE CASE....................................................................................3

Nature of the Case...................................................................................................3

Course of Proceedings and Disposition Below ......................................................3

STATEMENT OF FACTS ..........................................................................................3

Events Giving Rise to Appellants’ Civil Rights Claims.........................................3

Events Giving Rise to Appellants’ Procedural Claims...........................................5

SUMMARY OF ARGUMENT .................................................................................13

ARGUMENT .............................................................................................................15

I. IN CIVIL RIGHTS CASES BROUGHT BY PRO SE

LITIGANTS, A COURT MUST EITHER WARN
PLAINTIFFS OF POTENTIAL SANCTIONS OR CONSIDER
LESS SEVERE ONES BEFORE ISSUING CASE
DISPOSITIVE SANCTIONS..........................................................................15

A. The District Court Erred In Applying Dispositive

Sanctions Because It Failed To Warn The Mr. and Mrs.
Hoeft-Ross Or Consider Less Severe Sanctions ...................................18

B. The District Court Erred In Applying Dispositive

Sanctions Because Mr. And Mrs. Hoeft-Ross’s Failure
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 To Attend The Rule 16 Case Conference Had Not
Prejudiced The Hoefts ...........................................................................20

C. The District Court Erred In Applying Dispositive

Sanctions Because The Interest In Resolving A Case On
Its Merits Is Heightened In Civil Rights Cases.....................................23

D. The First Two Factors Of The Dispositive Sanctions Test

Do Not Outweigh The Last Three Factors In This Case.......................24

II. HIAWATHA SHOWED EXCUSABLE NEGLECT FOR

FAILING TO APPEAR AT THE JANUARY 18, 2007 CASE
MANAGEMENT CONFERENCE .................................................................25

A. The District Court’s Sanction Was Based On Erroneous

Facts.......................................................................................................26

B. The District Court Abused Its Discretion By Failing To

Apply The Proper Test ..........................................................................29

C. The Briones Test Shows That Mr. and Mrs. Hoeft-Ross’s

Actions were Excusable ........................................................................30

III. CONTRARY TO THE DISTRICT COURT’S FINDINGS,

HIAWATHA HOEFT-ROSS HAS VIABLE CLAIMS UNDER
42 U.S.C. §§ 1981 AND 1982 BECAUSE HE WAS
QUALIFIED TO RENT THE HOUSING UNIT AND THE
HOUSING UNIT REMAINED AVAILABLE AFTER THE
HOEFTS REJECTED HIS RENTAL APPLICATION..................................36

A. A Reasonable Jury Could Find That Hiawatha Was

Qualified To Rent The Housing Unit....................................................39

B. The Housing Unit Remained Available After Appellees

Rejected Hiawatha’s Rental Application ..............................................40

CONCLUSION..........................................................................................................42

CERTIFICATE OF COMPLIANCE.........................................................................43

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CERTIFICATE OF SERVICE ..................................................................................44

APPENDIX A ............................................................................................................45

APPENDIX B ............................................................................................................49

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 TABLE OF CITATIONS

Page(s)

FEDERAL CASES

Adriana Int’l Corp. v. Thoeren, 913 F.2d 1406 (9th Cir. 1990)....................20, 21, 31

Anheuser-Busch, Inc. v. Natural Beverage Distribs., 69 F.3d 337

(9th Cir. 1995). ..........................................................................................19, 21

Balistreri v. Pacifica Police Dept. 901 F.2d 696 (9th Cir. 1990)..............................39

Bateman v. United States Postal Service, 231 F.3d 1220 (9th

Cir. 2000). ......................................................................................25, 26, 29, 30

Briones v. Riviera Hotel & Casino, 116 F.3d 379 (9th Cir. 1997)......................14, 29

Eldridge v. Block, 832 F.2d 1132 (9th Cir. 1987). ........................................15, 16, 23

Dietrich v. John Ascuaga’s Nugget, 548 F.3d 892 (9th Cir. 2008). ..........................39

Freeland v. Amigo, 103 F.3d 1271 (6th Cir. 1997). ..................................................16

Hamilton v. Neptune Orient Lines, Ltd., 811 F.2d 498 (9th Cir. 1987). ...................24

Henderson v. Duncan, 779 F.2d 1421 (9th Cir. 1986). .......................................15, 16

Hernandez v. City of El Monte, 138 F.3d 393 (9th Cir. 1998). .................................23

In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217 (9th Cir.

2006). ...............................................................................................................20

Laurino v. Syringa Gen. Hosp., 279 F.3d 750 (9th Cir. 2002)..................................31

Malone v. United States Postal Service, 833 F.2d 128 (9th Cir. 1987).....................15

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McAllister v. United States, 348 U.S. 19 (1954). ......................................................31

Mencer v. Princeton Square Apartments, 228 F.3d 631 (6th Cir. 2000)...................39

Moneymaker v. CoBen (In re Eisen), 31 F.3d 1447 (9th Cir. 1994). ........................20

Phiffer v. Proud Parrot Motor Hotel, Inc., 648 F. 2d 548 (9th Cir. 1980)

. ............................................................................................................37, 39, 40

Qwest Comm’ns Inc. v. Kerkeley, 433 F.3d 1253 (9th Cir. 2006), overruled on

other grounds, Sprint Telephony PCS, L.P. v. County of San Diego, 543

F.3d 571 (9th Cir. 2008). .................................................................................36

Sandford v. R.L. Coleman Realty Co., Inc., 573 F.2d 173 (4th Cir.1978). ...............37

Selden Apartments v. United States Dept. of HUD, 785 F.2d 152 (6th Cir. 1986).37, 38

Thompson v. Housing Authority of the City of Los Angeles, 782 F.2d 829 (9th Cir.

1986). ...............................................................................................................15

Tolbert v. Leighton, 623 F.2d 585 (9th Cir.1980). ....................................................24

United States v. Washington, 98 F.3d 1159 (9th Cir. 1996)......................................26

United States Dept. of HUD v. Blackwell, 908 F.2d 864 (11th Cir. 1990)..........40, 41

Universal Health Servs., Inc. v. Thompson, 363 F.3d 1013 (9th Cir. 2004). ............36

Valley Engineers Inc. v. Electric Engineering Co., 158 F.3d 1051 (9th

Cir. 1998). ............................................................................................16, 19, 21

Ware v. Rodale Press, Inc., 322 F.3d 218 (3rd Cir. 2003). .......................................16

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FEDERAL STATUTES

42 U.S.C. § 1981..................................................................1, 2, 12, 23, 36, 38, 40, 41

42 U.S.C. § 1982..................................................................1, 2, 12, 23, 36, 38, 40, 41

FEDERAL RULES

Fed. R. Civ. P. 60(b)(1)..............................................................................................29

Fed. R. Civ. P. 26(f) . .......................................................................................6, 33, 34

Local Rule 26-1 ...............................................................................................6, 33, 34

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 STATEMENT OF JURISDICTION

The District Court had subject matter jurisdiction over the case below

pursuant to 28 U.S.C. §§ 1331 and 1367. This case primarily dealt with the

interpretation and application of federal law, namely 42 U.S.C. §§ 1981, 1982 and

the Fair Housing Act.

This Court has jurisdiction pursuant to 28 U.S.C. § 1291 because this case is

an appeal from a final judgment. On December 5, 2007, the lower court entered

judgment against the Plaintiffs/Appellants, granting the Defendants/Appellees’

motion for summary judgment. Pursuant to Federal Rules of Appellate Procedure

4(a)(1)(A) and (a)(4)(A)(iv), Appellants timely filed a notice of appeal on

December 14, 2007.

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 ISSUES PRESENTED

ISSUE I.

Does a District Court err when it, sua sponte, sanctions disabled pro se

plaintiffs by prohibiting them from conducting any discovery in a civil rights case

without first warning the plaintiffs of possible sanctions or considering whether a

lesser sanction was sufficient?

ISSUE II.

Does a district court err when it declines to find excusable neglect when it

bases its decision on erroneous facts; and when the plaintiffs, who caused no

prejudice to the defendants, fail to attend a case management conference due to a

medical condition; and where the District Court fails to use the proper test to

determine excusable neglect?

ISSUE III.

Does a District Court err in granting summary judgment regarding 42 U.S.C

§§ 1981 and 1982 when a landlord refuses to rent to a racial minority but shortly

thereafter rents the same unit to a non-racial minority with lesser financial

qualifications?

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 STATEMENT OF THE CASE

Nature of the Case

The underlying case involves civil rights, tort and contract claims under both

federal and state law. This appeal involves a civil rights question and several

questions of civil procedure.

Course of Proceedings and Disposition Below

The District Court sanctioned the Appellants by prohibiting them from

conducting discovery. The District Court then dismissed Appellants’ federal

claims and declined jurisdiction over the remaining state claims.

STATEMENT OF FACTS

Events Giving Rise to Appellants’ Civil Rights Claims

The case below dealt with federal civil rights and housing discrimination

claims as well as various state law contract and tort claims. After dismissing the

federal claims, the District Court declined to exercise jurisdiction over the

remaining state law claims and thus never addressed them on their merits.

(Excerpt of Record (“E.R.”) at 21-22.) As only the federal claims are relevant to

this appeal, this brief focuses only on the facts giving rise to them.

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 Appellant Hiawatha Hoeft-Ross (“Hiawatha”)1 is a disabled African-

American. (E.R. at 71.) Hiawatha is married to Appellant Monica Hoeft-Ross

(“Monica” or “Mrs. Hoeft-Ross”), a Caucasian German national. (Id.)

Hiawatha is severely handicapped. (E.R.II. at 36-38.) He has been

diagnosed with brain damage, schizophrenia, a panic disorder, a sleep disorder, a

delusional disorder, depression with suicidal thoughts, pervasive fibromyalgia, and

degenerative disk disease with chronic neck and upper back pain. (Id.) Monica

has also been treated for mental disorders. (Id. at 36.)

The color of Hiawatha’s skin is a constant source of conflict between him

and his in-laws, the Appellees (the “Hoefts”). (E.R. at 72.) The Hoefts

consistently belittled Hiawatha Hoeft-Ross, calling him various racial slurs,

including big dumb nigger, angus, banjo lips, and ape. (Id.) The Hoefts often told

their daughter that Hiawatha “was a no-good nigger and that Monica Hoeft-Ross

should divorce him.” (Id. at 12.)

The events underlying the civil rights and housing discrimination claims

began on or around September 22, 2001. Mr. and Mrs. Hoeft-Ross applied to rent

a housing unit from the Hoefts, intending to rent it jointly. (E.R. at 16, 23-24.)

1
Mr. and Mrs. Hoeft-Ross have given their permission for the parties and the
Court to refer to them by their first names. This brief does so, not out of
disrespect, but for clarity and ease of reading, as the Appellants’ and Appellees’
names are so similar.
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Despite the fact Hiawatha Hoeft-Ross provided the household’s only income, (id.

at 23), and that he would be living in the housing unit anyway, the Hoefts refused

to enter into a rental agreement with him (id. at 16, 23-24). After rejecting the

African-American Hiawatha Hoeft-Ross, the Hoefts entered into a rental

agreement solely with the Caucasian Monica Hoeft-Ross. (Id.)2 Hiawatha lived in

the house for the next three years, during which time the Hoefts repeatedly refused

to allow him to be a party to the contract. (Id. at 16.)

Events Giving Rise to Appellants’ Procedural Claims

Mr. and Mrs. Hoeft-Ross filed their complaint against the Hoefts on March

3, 2005. (Id. at 2.) Because of issues with service of process (id. at 2-3), and a

motion to dismiss (id. at 4), the Hoefts did not answer the complaint until June 19,

2006. (Id. at 3.) Under Rule 26-1(d) of the Local Rules of the District Court, the

parties had thirty days, or until July 19, 2006 to conduct a Rule 26(f) conference.3

2
Subsequent to rejecting Hiawatha’s rental application, the Hoefts
committed various torts and breaches of contract that comprise the state law claims
which the District Court did not address on their merits. (See generally Doc. # 5 of
the Record.) Again, this brief does not address the factual underpinnings of the
state law claims because they are not relevant to this appeal.

3
See Appendix B for the text of Local Rule 26-1
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 Shortly after the Hoefts filed their answer, the parties engaged in what is

best described as a comedy of errors in trying to schedule a Rule 26(f) conference.4

The parties ostensibly perpetuated this misunderstanding by insisting on

scheduling this conference only through mail, instead of using both mail and

telephone.5

On July 6, 2006, the Hoefts’ counsel, Mr. Kealy, asked Mr. and Mrs. Hoeft-

Ross to meet on the last day of the time period prescribed by Local Rule 26-1(d).

(E.R.II. at 1.) Mr. and Mrs. Hoeft-Ross could not meet on that day, but wrote three

separate letters requesting a new time to meet. (Id. at 2-4.) In the last of these

letters, and in an attempt to comply with Rule 26(f) and Local Rule 26-1, Mr. and

Mrs. Hoeft-Ross sent Mr. Kealy their proposed discovery plan and initial

disclosures. (Id. at 4-14.)

Mr. and Mrs. Hoeft-Ross’s discovery plan proposed dates for the following:

discovery cut-off, amending the pleadings and adding parties, disclosing experts,

submitting a joint interim status report, filing dispositive motions, filing the joint

4
See Appendix A for a more complete summary of the correspondence the
parties sent each other between July 6, 2006 and September 8, 2006.

5
The record shows that in the course of seven letters written by Mr. Kealy,
Mr. Kealy, he only tried to contact Mr. and Mrs. Hoeft-Ross via telephone once.
(E.R.II. at 19-22.)
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pretrial order, and filing motions to extend. (Id. at 5-7.) Each of these dates was

based off a discovery cut-off deadline of December 19, 2006, which was 180 days

from the date the Hoefts filed their answer. (Id. at 6.) The discovery deadlines and

corresponding dates that Mr. and Mrs. Hoeft-Ross proposed conformed with the

requirements of Local Rule 26-1(d) and (e). Along with the discovery plan, Mr.

and Mrs. Hoeft-Ross sent initial disclosures that included a list of witnesses and

two bate-stamped documents consisting of the rental agreement at issue and

correspondence from the Hoefts. (Id. at 5-14.)

On August 8, 2005, almost two weeks after Mr. and Mrs. Hoeft-Ross sent

their proposed discovery plan, Mr. Kealy sent them the Hoefts’ version. (Id. at

17.) Mr. and Mrs. Hoeft-Ross viewed this discovery plan as a response to and

revision of their own, and referred to the Hoefts’ discovery plan as the “revised

discovery plan.” (Id. at 22.)

Between July 6 and August 31, 2006, Mr. and Mrs. Hoeft-Ross sent Mr.

Kealy ten different letters, attempting to schedule a Rule 26(f) conference. (Id. at

2, 3, 4, 16, 20, 22, 23, 24, 26, 28.) During this time, Mr. Kealy likewise sent six

different letters trying to schedule the conference. (Id. at 1, 15, 17, 18, 21, 25.)

Due to the time delay of letters, the parties were unable to coordinate a conference.

(See Id. at 15, 16, 18-19 (attempting to schedule an August 11, 2006 conference);

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Id. at 18-19, 22 (attempting to schedule an August 25, 2006 conference); Id. at 20,

21, 23.)

Throughout the majority of the litigation, Hiawatha’s symptoms emanating

from his various medical conditions were severe but manageable. (E.R. at 41.)

However, on or around August 23, 20006, Hiawatha’s medical conditions began to

deteriorate, rendering him mentally and physically unstable. (Id. at 57-58; E.R.II.

at 23, 26, 28.) Hiawatha began experiencing unmanageable pain, forcing him to

undergo a cervical epidural steroid injection, which was ultimately unsuccessful.

(E.R.II at 27.) Hiawatha’s doctor advised him against participating in litigation

until his condition had stabilized. (E.R. at 38; E.R.II. at 33, 35.)

On August 23, 2006, Monica wrote to Mr. Kealy, attempting to reschedule

the Rule 26(f) conference for August 31, 2006. (E.R.II. at 23.) Monica informed

Mr. Kealy of what had happened to Hiawatha, asking for patience and

understanding. (Id. at 28.) Mr. Kealy rejected that date and asked to postpone the

meeting into September. (Id. at 25.)

On September 8, 2006, Mr. Kealy unilaterally submitted his proposed

discovery plan to the District Court, which signed it the next day. (E.R. at 67-70,

63-66) The District Court then issued a notice of a Rule 16 Case Management

Conference. (Id. at 62.) In response, Mr. and Mrs. Hoeft-Ross filed a motion,

petitioning the District Court to stay the beginning of discovery until January 19,

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2007, to give Hiawatha a chance to recover. (E.R. 56-58.) After reviewing

statements by Hiawatha’s doctor, the court granted the motion and set a case

management conference for January 18, 2007. (E.R. at 44, 45, 50-52, 55.)

On October 12, 2006, Hiawatha was in an automobile accident that

aggravated his already deteriorating medical condition. (E.R.II. at 33.)

Mr. and Mrs. Hoeft-Ross did not attend the January 18, 2007 conference.

During this conference, the District Court discussed with Mr. Kealy about whether

to sanction Mr. and Mrs. Hoeft-Ross. Mr. Kealy recommended that the District

Court not give Mr. and Mrs. Hoeft-Ross much leeway. To support his position,

and in a lack of candor, Mr. Kealy made the following statement to the District

Court:

…I haven’t received anything pursuant to the initial disclosure

rules at all. Now, we’ve made our productions, and we’ve filed our

report. I haven’t received anything. So I was half inclined to ask

this Court for a sanction to, you know, preclude them from

introducing anything if they don’t comply with the fundamental rule

of the initial disclosures. I know that the Court is inclined to grant

leeway to pro se litigants. And I take that into account as well. But if

they don’t show up at 2:00 and they haven’t complied with any of

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 the discovery rules and they’ve brought this massive lawsuit…they

shouldn’t be given too much leeway.

(E.R. at 50.) (Emphasis added.)

These statements to the District Court were inaccurate, because Mr. Kealy

had previously received Mr. and Mrs. Hoeft-Ross’s initial disclosures and

proposed discovery plan. As noted previously, Mr. and Mrs. Hoeft-Ross sent Mr.

Kealy their proposed discovery plan and initial disclosures on July 27, 2006.

(E.R.II. at 4-14.) Other portions of the record show that Mr. Kealy himself

acknowledged that he received the discovery plan and initial disclosures. (E.R. at

36, 37; E.R.II. 30-31.)

Based largely on the representations of Mr. Kealy, the District Court made

the following statement and ruling:

Well, here’s the Court’s view…if [Mr. and Mrs. Hoeft-Ross] are

going to come in to federal court and wish to litigate, they are

obligated to follow not only the Federal Rules of Civil Procedure, but

the local rules of practice, and they have consistently failed to do so.

And the Court has given them leeway, has given them extensions, has

recognized their pro se status and any medical or other disability

issues that one or more of the plaintiffs may suffer from. But

notwithstanding that, this case is now -- was filed back in 2005. It’s

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 now 2007. And so the Court’s patience and willingness to grant some

deference to them is at end…

So the Court is going to enter the following order:

There shall be no discovery in this case. And as a sanction for

the plaintiff’s failure to comply with the local rules of practice, with

the Federal Rules of Civil Procedure as it relates to Rule 26 and –

Local Rule 26 concerning initial disclosures, providing a discovery

plan and scheduling order, and for their failure to appear here in court

this morning for a case management conference, the sanction is they

shall have no opportunity to engage in any discovery whatsoever. The

time has long come and gone for them to do so.

(E.R. at 51-52.)

The Court made its ruling without providing Mr. or Mrs. Hoeft-Ross any

warning or consideration of applying lesser sanctions. Moreover, directly after

announcing its sanction, the District Court entered into a discussion with Mr.

Kealy about how long he needed to file a dispositive motion, indicating that the

Court expected its sanction to be dispositive. (Id. at 52-54.)

On February 12, 2007, Mr. and Mrs. Hoeft-Ross filed their Rule 60(b)(1)

motion, pleading excusable neglect, and again asking the District Court to stay the

case until Hiawatha’s condition stabilized. (E.R. 38-41.) Hiawatha explained that

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he had missed the January 18, 2007 conference because his doctor told him not to

participate in litigation and because he mixed up the hearing date, due to brain

damage. (E.R. at 41.) Hiawatha also produced a contemporary statement from his

physician, stating his unfitness to litigate. (E.R.II. at 35, 38.) The District Court

believed Hiawatha was capable of litigating the case and declared that Mr. and

Mrs. Hoeft-Ross had not shown excusable neglect in missing the January 18, 2007

conference. (E.R. at 13.) The District Court also noted it was desirable to resolve

the case because it had been pending for almost three years. (Id.)

On March 26, 2007, the Hoefts filed a motion for summary judgment against

Hiawatha’s federal claims. (Id. at 30.) The District Court ultimately granted the

summary judgment motion, holding, in part, that the Hoefts were not liable under

42 U.S.C. §§ 1981 and 1982, because Hiawatha could not prove that he was

qualified to rent the housing unit and because the housing unit did not remain

available after the Hoefts rejected Hiawatha. (Id. at 15-17.) Once all of the federal

claims had been dismissed, the District Court declined to exercise supplemental

jurisdiction over the remaining state law claims, and dismissed the case. (Id. at 20-

21.)

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 SUMMARY OF ARGUMENT

The District Court made three errors of law that should be reversed. First,

the District Court erred by sanctioning Mr. and Mrs. Hoeft-Ross without warning

them of potential dispositive sanctions or first considering lesser sanctions.

Second, the District Court erred in ruling that Hiawatha’s failure to attend the

January 18, 2007 conference was not due to excusable neglect. Third, the District

Court erred when granting summary judgment based on finding that Hiawatha

could not prove he was qualified to rent the housing unit and that the housing unit

did not remain available after the Hoefts rejected Hiawatha.

The sanction of prohibiting all discovery is a dispositive sanction against a

plaintiff. Before a court may apply a dispositive sanction, it must first apply a five

part balancing test. In a case involving pro se plaintiffs or sua sponte sanctions, a

court is required to either warn the plaintiff of pending sanctions or first consider

whether lesser sanctions would suffice before issuing a case dispositive sanction.

In the instant case, the District Court erred by issuing a sanction prohibiting the

plaintiffs from engaging in any discovery without warning Mr. and Mrs. Hoeft-

Ross of the pending sanction or first applying lesser sanctions.

The District Court erred when it ruled that Mr. and Mrs. Hoeft-Ross’s failure

to attend the January 18, 2007 conference was not due to excusable neglect.

Regarding a claim of excusable neglect, a court abuses its discretion when its

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ruling is clearly erroneous or it does not apply the four factors of the test outlined

in Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir. 1997). In the

instant case, the District Court abused its discretion by failing to apply the Briones

test. The District Court also abused its discretion because an application of the

Briones test clearly shows excusable neglect in this case because the Hoefts did not

suffer prejudice, the length and impact of the delay was negligible, and the Hoefts

had reasonable and good faith reasons for not attending the conference.

Finally, the District Court erred when it dismissed Hiawatha’s 42 U.S.C §§

1981 and 1982 claims. The District Court ruled that these two sections did not

apply because Hiawatha had not shown that he was qualified to rent the housing

unit and because the unit did not remain available after he was rejected. However,

a reasonable jury could have found that Hiawatha was qualified to rent the housing

unit because his wife was qualified and she was dependent upon his income.

Moreover, the Hoefts’ rental of the housing unit to Mrs. Hoeft-Ross after they had

rejected Hiawatha is prima facie evidence that the unit did remain available after

the rejection.

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 ARGUMENT

I.
IN CIVIL RIGHTS CASES BROUGHT BY PRO SE LITIGANTS, A
COURT MUST EITHER WARN PLAINTIFFS OF POTENTIAL
SANCTIONS OR CONSIDER LESS SEVERE ONES BEFORE ISSUING
CASE DISPOSITIVE SANCTIONS
This Court should reverse the District Court’s sanction prohibiting Mr. and

Mrs. Hoeft-Ross from engaging in any discovery. An appellant court reviews the

application of sanctions for an abuse of discretion. See Eldridge v. Block, 832 F.2d

1132, 1136 (9th Cir. 1987); Thompson v. Housing Authority of the City of Los

Angeles, 782 F.2d 829, 832 (9th Cir. 1986).

A “[dispositive sanction] is a harsh penalty and is to be imposed only in

extreme circumstances.” Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir.

1986). Here, the district court failed to weigh the following five factors (the

“Dispositive Sanction Test”) in determining whether to apply dispositive sanctions

against a litigant: “(1) the public’s interest in expeditious resolution of litigation;

(2) the court’s need to manage its docket; (3) the risk of prejudice to the

defendants; (4) the public policy favoring disposition of cases on their merits; and

(5) the availability of less drastic sanctions.” Malone v. United States Postal

Service, 833 F.2d 128, 130 (9th Cir. 1987); Thompson, 782 F.2d at 831. Because

the District Court applied dispositive sanctions without making an explicit finding

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regarding this five-factor test, this Court examines the record and applies the test

itself to check for an abuse of discretion. See Henderson, 779 F.2d at 1424.

Although courts most often discuss the requirements of the Dispositive

Sanction Test in the context of an order of dismissal, see e.g. Eldridge, 832 F.2d

1132 (applying the Dispositive Sanction Test to a sanction dismissing the case),

this test applies to any sanction that has a dispositive effect, see Valley Engineers

Inc. v. Electric Engineering Co., 158 F.3d 1051, 1057-1058 (9th Cir. 1998)

(applying the Dispositive Sanction Test to a dismissal, but recognizing that this test

applies more broadly to dispositive sanctions). In the instant case, this five-factor

test demonstrates that the District Court abused its discretion in applying a

dispositive sanction against Mr. and Mrs. Hoeft-Ross.

A sanction is case-dispositive if it prevents the discovery, and thus the

introduction, of evidence that is vital to a party’s claims. See e.g. Zimmerman v.

Shakman, 204 Ariz. 231, 237, 62 P.3d 976, 982 (Ariz. Ct. App.2003) (holding that

a motion in limine was a dispositive sanction when it excluded all evidence from

trial); Ware v. Rodale Press, Inc., 322 F.3d 218, 221 (3rd Cir. 2003) (stating that

the exclusion of vital evidence under Rule 37(b)(2) is tantamount to the dismissal

of a claim, and thus is dispositive); Freeland v. Amigo, 103 F.3d 1271, 1276 (6th

Cir. 1997) (stating that a sanction precluding evidence can be tantamount to

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dismissal of the case, and a court must review the sanction as one resulting in

dismissal). 6

In the instant case, the District Court’s prohibition of all discovery was

dispositive. In its summary judgment on Sections 1981 and 1982, the District

Court relied on the Hoefts’ affidavits which claimed that the housing unit was not

open to the general public and that the Hoefts did not own enough units or conduct

enough transactions to make them subject to the fair housing act. (E.R. at 18-19.)

Hiawatha and his wife, however, were never able to dispute these factual

allegations because the Court prohibited all discovery. If the District Court had

allowed discovery, Mr. and Mrs. Hoeft-Ross could have propounded

interrogatories and requests for the production of documents concerning financial

and real estate information from the Hoefts and, more importantly, the trust in

which the property was held. For example, such information may have shown:

- that the Hoefts or their trust owned more real estate and thus were

subject to the Fair Housing Act;

- that the Hoefts had attempted to rent the housing unit to the general

public before or after they evicted Hiawatha and his wife;

6
The sanction to preclude discovery in this case was dispositive. As
explained previously, in the same hearing that the District Court barred Mr. and
Mrs. Hoeft-Ross from conducting discovery, the court also asked Mr. Kealy how

-17-
 - what requirements the Hoefts looked for in determining who was

qualified to rent the housing unit, such as income, criminal record,

credit score.

Ultimately, without these answers, Mr. and Mrs. Hoeft-Ross were never

able to adequately refute a summary judgment. This information would have been

crucial to a deposition that the Court never allowed them to have. Moreover, by

foreclosing Mr. and Mrs. Heoft-Ross’ ability to conduct a deposition, they were

never able to challenge the veracity of the allegations the Hoefts made in their

bare-boned affidavits which was the foundation of the Courts order granting

summary judgment. Thus, the District Court’s sanction precluding all discovery

was dispositive because it prevented Mr. and Mrs. Hoeft-Ross from investigating

and disputing the factual allegations upon which the District Court based its

summary judgment.

A. The District Court Erred In Applying Dispositive Sanctions Because It

Failed To Warn The Mr. and Mrs. Hoeft-Ross Or Consider Less Severe
Sanctions

The Fifth factor of the Dispositive Sanctions Test provides the clearest

evidence that the District Court abused its discretion by foreclosing Mr. and Mrs.

Hoeft-Ross’s ability to conduct discovery. The District Court was required to warn

long it would take him to file a dispositive motion, indicating that the District
Court was aware and intended that the sanction effectively end the case.
-18-
Mr. and Mrs. Hoeft-Ross of potential sanctions and to consider and/or apply lesser

sanctions before applying dispositive ones. See Valley Engineers Inc., 158 F.3d at

1057. The District Court may only avoid these requirements of the fifth factor if

Mr. and Mrs. Hoeft-Ross had established a “pattern of deception and discovery

abuse” that made it impossible for the district court to conduct a trial “with any

reasonable assurance that the truth would be available.” Id. (quoting Anheuser-

Busch, Inc. v. Natural Beverage Distribs., 69 F.3d 337, 352 (9th Cir. 1995)).

In the instant case, the fifth factor of the Dispositive Sanctions Test shows a

clear abuse of discretion. The District Court did not warn Mr. and Mrs. Hoeft-

Ross that potential sanctions were pending. The first time the District Court even

mentioned the possibility of sanctions was during the January 18, 2007 conference,

the conference they missed. Moreover, the District Court never applied lesser

sanctions. (See generally, E.R. 44-54.) Instead, the District Court stated that Mr.

and Mrs. Hoeft-Ross would not be allowed to engage in discovery and then asked

Mr. Kealy how much time he needed to draft a dispositive motion. (Id. at 43, 50-

52.)

There is no indication in the record that a warning or a lesser sanction had

been considered. More importantly, there is no indication that a warning or lesser

sanction would have been insufficient. Further, Mr. and Mrs. Hoeft-Ross did not

commit a pattern of discovery abuses, and certainly not ones that would make it

-19-
impossible for the District Court to rule on the merits of the case. This Court

should therefore reverse the District Court’s ruling because that court never warned

Mr. and Mrs. Hoeft-Ross, never explicitly considered lesser sanctions and never

applied lesser sanctions.

B. The District Court Erred In Applying Dispositive Sanctions Because

Mr. And Mrs. Hoeft-Ross’s Failure To Attend The Rule 16 Case
Conference Had Not Prejudiced The Hoefts
The third factor of the Dispositive Sanctions Test also provides clear

evidence that the District Court abused its discretion when sanctioning Mr. and

Mrs. Hoeft-Ross. Under this factor, the risk of prejudice to the non-sanctioned

party only becomes relevant if such a risk actually exists and is substantial. Here,

the Hoefts failed to meet their burden of showing that they suffered actual

prejudice that is substantial when compared to the reason for delay. See In re

Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1227-28 (9th Cir.

2006) (citing Moneymaker v. CoBen (In re Eisen), 31 F.3d 1447, 1453 (9th Cir.

1994)).

To prevail on the third factor, the District Court needed to find that the

Hoefts suffered prejudice because Mr. and Mrs. Hoeft-Ross’s actions impaired the

Hoefts’ “ability to go to trial or threaten to interfere with the rightful decision of

the case.” Adriana Int’l Corp. v. Thoeren, 913 F.2d 1406, 1412 (9th Cir. 1990).

As explained previously, this factor applies “where a ‘pattern of deception and

-20-
discovery abuse made it impossible’ for the district court to conduct a trial ‘with

any reasonable assurance that the truth would be available.’” Valley Engineers

Inc., 158 F.3d at 1057-58 (quoting Anheuser-Busch, Inc. v. Natural Beverage

Distributors, 69 F.3d 337, 352 (9th Cir. 1995)). Since a dispositive sanction

inflicts the ultimate prejudice, the third factor only truly favors sanctions if bad

faith discovery violations “threaten to interfere with the rightful decision of the

case.” Id. (quoting Adriana, 913 F.2d at 1412).

As contemplated by this factor, the record provides no indication that Mr.

and Mrs. Hoeft-Ross’s actions prejudiced the Hoefts. Mr. and Mrs. Hoeft-Ross did

not substantially cause any unauthorized delay in this case. The District Court

granted Mr. and Mrs. Hoeft-Ross’s Motion for an Extension of Time to Start

Discovery, staying the beginning of discovery until January 19, 2007. (E.R. at 55.)

Based on that order, Mr. and Mrs. Hoeft-Ross cannot be sanctioned for not

participating in discovery before January 19, 2007. Thus, the only delay in this

case was Mr. and Mrs. Hoeft-Ross’s failure to appear at the January 18, 2007 case

management conference. Mr. and Mrs. Hoeft-Ross’s failure to attend a conference

does not establish the type of delay that “impair[s] the defendant’s ability to go to

trial or threaten[s] to interfere with the rightful decision of the case.” Thus, Mr.

and Mrs. Hoeft-Ross’s failure to appear not did cause the prejudice required under

this factor.

-21-
 Even if the failure to attend the January 18, 2007 conference did cause

enough delay to be prejudicial, which it did not, Mr. and Mrs. Hoeft-Ross had a

non-frivolous excuse for not attending. In his January 25, 2007 declaration,

Hiawatha’s doctor stated: “[Hiawatha Ross] has had severe and chronic problems

stemming from motor vehicle accidents which have aggravated past injuries. He

has been disabled and has not been able to function well enough to attend court.”

(E.R.II. at 38.) Moreover, Hiawatha’s mental illness caused him to confuse the

dates of the hearing. (E.R. at 41.) Even though the District Court ultimately

disagreed with his doctor’s prognosis, Hiawatha’s reasons for missing the Rule 16

conference are not frivolous.

Mr. and Mrs. Hoeft-Ross’s action did not rise to the level of “impair[ing] the

defendant’s ability to go to trial or threaten[ing] to interfere with the rightful

decision of the case.” Importantly, neither the Hoefts nor the District Court has

alleged the prejudice that is contemplated by this factor.7 Because there is no

evidence of such prejudice in this case, this Court should thus reverse the District

Court’s sanction of foreclosing discovery.

7
In Defendants’ Opposition to Plaintiffs’ Motion to Extend Discovery
Motion for Sanctions and Request for Judicial Notice, the Hoefts state that an
indefinite continuance of litigation would prejudice the elderly Hoefts. The Hoefts
never alleged that Mr. and Mrs. Hoeft-Ross’s failure to attend the January 18, 2007
hearing caused the Hoefts the prejudice contemplated by this factor.
-22-
C. The District Court Erred In Applying Dispositive Sanctions Because
The Interest In Resolving A Case On Its Merits Is Heightened In Civil
Rights Cases
The fourth factor of the Dispositive Sanction Test also provides clear

reasons that the District Court’s sanction was an abuse of discretion. The fourth

factor -- the strong policy of resolving a claim on its merits -- “is particularly

important in civil rights cases.” Hernandez v. City of El Monte, 138 F.3d 393, 396

(9th Cir. 1998) (citing Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987). In

Hernandez, the district court dismissed the plaintiffs’ civil rights case merely

because it perceived that the plaintiffs had engaged in judge shopping. See id. at

397. This Court ultimately reversed the sanction, in part, stating that the public

policy favoring disposition of cases on their merits counsels strongly against

dismissal. See id. at 399.

The instant case centers on whether the Hoefts violated Hiawatha’s civil

rights under 42 U.S.C. §§ 1981, 1982. Where, as here, allegations of civil rights

violations are involved, the District Court should promote resolving the case on the

merits. By foreclosing discovery, this sanction prevented the District Court from

doing so in regards to Hiawatha’s civil rights claims. The District Court abused its

discretion when it truncated this civil rights action.

-23-
D. The First Two Factors Of The Dispositive Sanctions Test Do Not
Outweigh The Last Three Factors In This Case

The first two factors of the Dispositive Sanction Test -- the public’s and the

court’s desire to expedite litigation and the Court’s need to manage its docket -- do

not render the District Court’s decision proper. Although speedy litigation is

desirable, courts give these two factors little weight in a dispositive sanction

analysis unless the plaintiff is first warned about the sanctions. See Hamilton v.

Neptune Orient Lines, Ltd., 811 F.2d 498, 500 (9th Cir. 1987). In Hamilton, a

plaintiff did not actively litigate a case for three years due to, among other things,

mistakes plaintiff’s counsel made. See id. at 499. After the case had been pending

for over three years, plaintiff’s counsel appeared at trial and informed the court that

the plaintiff was not ready for trial. See id. at 499-500. Although the district court

never warned the plaintiff of the possibility of dismissal or explored lesser

sanctions, it sanctioned the plaintiff by dismissing the case. See id.

On appeal, the Ninth Circuit recognized the importance of the timeliness of

litigation and the District Court’s ability to manage its docket. See id. at 500.

However, this Court held that “[w]hile these are legitimate concerns, they do not

relieve the district judge of his obligation to warn the plaintiff that dismissal is

imminent.” Id. (citing Tolbert v. Leighton, 623 F.2d 585, 587 (9th Cir.1980)).

Thus, the timeframe of the litigation is substantially less important than a judge’s

duty to warn a party of pending sanctions.

-24-
 In the instant case, the first two factors of the Dispositive Sanction Test do

not overcome the last three factors. As in Hamilton, the District Court never

warned Mr. and Mrs. Hoeft-Ross of potential sanctions. Thus, the first two factors

-- the public’s desire for speedy litigation and the court’s ability to manage its

docket -- are accorded little to no weight in this case. Ultimately, this Court should

reverse the District Court’s sanction as an abuse of discretion because this was a

civil rights case in which, even though the defendants had not suffered any

prejudice, the court issued sua sponte sanctions against handicapped pro se

litigants without warning them of such sanctions or considering lesser sanctions.

II.
HIAWATHA SHOWED EXCUSABLE NEGLECT FOR FAILING TO
APPEAR AT THE JANUARY 18, 2007 CASE MANAGEMENT
CONFERENCE
The District Court also erred when it denied Mr. and Mrs. Hoeft-Ross’s Rule

60(b)(1) motion and ruled that they had not shown excusable neglect for missing

the January 18, 2007 case management conference. This Court reviews a denial of

a 60(b)(1) motion for abuse of discretion. See Bateman v. United States Postal

Service, 231 F.3d 1220, 1223 (9th Cir. 2000). A district court abuses its discretion

regarding excusable neglect if it bases its opinion on erroneous facts, does not

apply the correct test, or if its decision is based on an erroneous application of the

-25-
correct test. See id. (citing United States v. Washington, 98 F.3d 1159, 1163 (9th

Cir. 1996)).

This Court should reverse the District Court’s rejection of Mr. and Mrs.

Hoeft-Ross’s Rule 60(b)(1) motion for at least three reasons. First, the District

Court’s sanction was based on erroneous facts. Second, the District Court did not

use the Briones Test to determine whether the alleged neglect was excusable.

Third, the Briones Test shows that Mr. and Mrs. Hoeft-Ross’s actions were

excusable.

A. The District Court’s Sanction Was Based On Erroneous Facts

It is clear that Mr. and Mrs. Hoeft-Ross did not attend the January 18, 2007

conference; however, the District Court made several erroneous findings that

warrant reversal of its denial of the Rule 60(b)(1) motion.

First, contrary to the District Court’s findings, Mr. and Mrs. Hoeft-Ross did

produce initial disclosures and a proposed discovery plan. During the January 18,

2007 hearing, the District Court based its sanctions in part on the representations of

the Hoefts’ counsel. During the conference, their counsel stated:

…I haven’t received anything pursuant to the initial disclosure rules at

all. Now, we’ve made our productions, and we’ve filed our report. I

haven’t received anything. So I was half inclined to ask this Court for

a sanction to, you know, preclude them from introducing anything if

-26-
 they don’t comply with the fundamental rule of the initial disclosures.

I know that the Court is inclined to grant leeway to pro se litigants.

And I take that into account as well. But if they don’t show up at 2:00

and they haven’t complied with any of the discovery rules and they’ve

brought this massive lawsuit…they shouldn’t be given too much

leeway.

(E.R. at 50.) Contrary to counsel’s representations, Mr. and Mrs. Hoeft-Ross

provided a proposed discovery plan and initial disclosures on July 22, 2006. (E.R.

at 36-37; E.R.II at 1-2.) In later correspondence, Mr. Kealy acknowledged

receiving these documents. (E.R.II. at 30-31).

The misrepresentations of the Hoefts’ counsel led the District Court to

believe that Mr. and Mrs. Hoeft-Ross had made no effort to comply with the Rule

26(f) requirements. When Mr. and Mrs. Hoeft-Ross later pointed out this error,

(E.R. at 38), the District Court ignored them, citing the multiple efforts of Mr.

Kealy to hold a Rule 26(f) conference. (Id. at 27.) As just outlined, it was clearly

erroneous for the District Court to find that Mr. and Mrs. Hoeft-Ross had not

provided initial disclosures and that Mr. and Mrs. Hoeft-Ross had failed to

participate in the development of the proposed discovery plan.

Second, the District Court also erroneously found that Mr. and Mrs. Hoeft-

Ross refused to participate in a Rule 26(f) conference from July through

-27-
September, 2006. (Id. at 27-28.) As explained previously, Mr. and Mrs. Hoeft-

Ross made a good faith effort to hold a Rule 26(f) conference. Mr. Kealy initiated

sent a letter stating that he could only hold the conference on July 19, 2006, the last

day of the Local Rule 26-1 deadline. (E.R.II. at 1.) Mr. and Mrs. Hoeft-Ross

could not attend that day because of a previous court engagement. (Id. at 2.) From

around mid-July 2006 through August 23, 2006, Mr. and Mrs. Hoeft-Ross made

seven different attempts to set up a Rule 26(f) conference. (Id. at 2, 3, 4, 16, 20,

22, 23.) During that time, Mr. Kealy also attempted to schedule a Rule 26(f)

conference. (Id. at 1, 15, 18, 21, 25.)

It was not until the end of August 2006 that Mr. and Mrs. Hoeft-Ross

realized that Hiawatha’s medical condition had deteriorated to the point of

rendering him unable to further participate in litigation. (Id..) Shortly after it

became clear that Hiawatha was impaired and would be for at least the next few

months, Mr. and Mrs. Hoeft-Ross moved the District Court to extend their deadline

requirements until January 19, 2007. (E.R. at 56.) The District Court granted Mr.

and Mrs. Hoeft-Ross’s motion and set a case management conference for January

18, 2007. (E.R. at 55.)

Although it is unfortunate that the parties were unable to schedule a date for

the Rule 26(f) conference, the delay was due to mutual legitimate scheduling

conflicts, letters getting crossed in the mail, and both parties’ seeming refusal to

-28-
use the telephone to assist them in scheduling the meeting. The 17 letters sent by

the parties between July 6, 2006 and September 8, 2006 clearly establish that Mr.

and Mrs. Hoeft-Ross made a good-faith effort to hold a Rule 26(f) conference.

Thus, the District Court’s finding that Mr. and Mrs. Hoeft-Ross refused to

participate in the Rule 26(f) conference from July through September, 2006 is

clearly erroneous.

B. The District Court Abused Its Discretion By Failing To Apply The

Proper Test
The District Court did not apply the proper test to Hiawatha’s claim of

excusable neglect. Rule 60(b)(1) provides that a court may relieve a party from a

final order upon the showing of excusable neglect. See Fed. R. Civ. P. 60(b)(1).

In determining whether neglect was excusable, a court applies the four-factor

Briones Test: “(1) the danger of prejudice to the opposing party; (2) the length of

the delay and its potential impact on the proceedings; (3) the reason for the delay;

and (4) whether the movant acted in good faith.” Briones v. Riviera Hotel &

Casino, 116 F.3d 379, 381 (9th Cir. 1997).

A district court abuses its discretion by failing to use all four factors of the

Briones Test. In Bateman v. United States Postal Service, a district court refused

to find excusable neglect when a party’s attorney missed a deadline because he was

out of the country for 19 days. See 231 F.3d at 1223. The district court reasoned

that the attorney (1) knew about deadline, (2) did not warn the court he would miss

-29-
the deadline, and (3) never explained why he spent so much time in rectifying the

problem. See id. The Ninth Circuit reversed the district court’s ruling, finding that

it had abused its discretion by examining only the reason for the delay, instead of

each of the four factors of the Briones Test. See id. at 1223-24.

In the instant case, the District Court abused its discretion by failing to apply

the full Briones Test. When denying Mr. and Mrs. Hoeft-Ross’s Rule 60(b)(1)

motion, the District Court stated that it disagreed with Hiawatha’s doctor about

Hiawatha’s ability to participate in discovery. (E.R. at 13.) The District Court also

stated that “to reach a resolution to this case [is] desirable” because “[t]his case has

been pending for almost three years.” (Id.) At best, the District Court only applied

one and a half of the four Briones factors: the reason for the delay and the length

of the delay. The District Court never considered what the impact of the delay had

on the proceedings, whether Hiawatha was acting in good faith and whether the

delay had prejudiced the Hoefts. The District Court’s failure to apply the proper

elements of the Briones Test is an abuse of discretion and should be reversed.

C. The Briones Test Shows That Mr. and Mrs. Hoeft-Ross’s Actions were
Excusable
The District Court’s ruling that Mr. and Mrs. Hoeft-Ross had failed to show

excusable neglect is clearly erroneous. A finding is clearly erroneous when

“although there is evidence to support it, the reviewing court on the entire evidence

is left with a definite and firm conviction that a mistake has been committed.”

-30-
McAllister v. United States, 348 U.S. 19, 20 (1954). Hiawatha’s failure to comply

with the District Court’s requirements is excusable under the Briones Test.

a. Mr. and Mrs. Hoeft-Ross’s actions did not prejudice the

Hoefts
The first factor of the Briones Test -- whether a danger of prejudice to the

opposing party existed -- supports a finding of excusable neglect. Mr. and Mrs.

Hoeft-Ross’s actions did not cause the Hoefts any prejudice. “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.” Adriana Int’l Corp. v.

Thoeren, 913 F.2d 1406, 1412 (9th Cir. 1990); see also Laurino v. Syringa Gen.

Hospital, 279 F.3d 750, 753 (9th Cir. 2002) (using this definition of prejudice in

the Briones test). As explained previously, Mr. and Mrs. Hoeft-Ross’s actions did

not rise to the level of impairing the Hoefts’ ability to go to trial or threaten a

rightful decision of the case. Ultimately, this factor of the Briones Test shows that

Mr. and Mrs. Hoeft-Ross’s neglect was excusable.

b. The delay was not excessive and its potential impact was
negligible
The second factor of the Briones Test -- whether the delay was excessive

and had an extreme impact on the proceedings -- also requires a finding of

excusable neglect. The delay in this case and its impact were negligible. The only

unexcused delay in this case was Mr. and Mrs. Hoeft-Ross’s failure to attend the

-31-
January 18, 2007 conference and their failure to provide the District Court with a

discovery plan during that conference. On September 20, 2006, Mr. and Mrs.

Hoeft-Ross informed the District Court that Hiawatha was ill. (E.R. at 60-61.)

Five days later, Mr. and Mrs. Hoeft-Ross moved the District Court to delay

the beginning of discovery, implicitly along with all of its deadlines, until January

19, 2007. (E.R. at 56-58.) The District Court granted the extension. Thus, the

only relevant violation occurred when Mr. and Mrs. Hoeft-Ross did not attend the

January 18, 2007 conference. The minute order sanctioning Mr. and Mrs. Hoeft-

Ross was entered the same day of the conference. (E.R. at 42-43.) Thus, the

relevant delay in this instance was less than one day. A delay of less than one day,

although unfortunate, is negligible and has virtually no impact on the proceedings.

c. The reason for the delay was legitimate

The third factor - the reason for the delay -- also requires a finding of

excusable neglect. Here, the delay was legitimate and reasonable. There were two

periods of delay in this case -- the delay before the January 18, 2007 conference

and the delay after. Although the first delay was excused by the District Court,

(E.R. at 55), this Brief will address both instances.

(1) The pre-conference delay

Mr. and Mrs. Hoeft-Ross had a legitimate reason for not holding a Rule

26(f) and for not submitting their discovery plan and proposed scheduling order to

-32-
the District Court before the January 18, 2007 conference. As discussed

previously, Mr. and Mrs. Hoeft-Ross attempted to schedule a Rule 26(f)

conference with Mr. Kealy. Unfortunately, the parties consistently got their

correspondence crossed in the mail, leading to a lack of cohesive coordination.

After Hiawatha’s physical and mental condition began to deteriorate, (E.R.II. at

23), Mr. and Mrs. Hoeft-Ross moved the District Court for an extension. (See Id.;

E.R. 56-58, 60-61.) After the District Court granted the extension, Mr. and Mrs.

Hoeft-Ross reasonably believed that they were temporarily relieved of the duties

Rule 26(f) and Local Rule 26-1 imposed on them.

Although the record does not explicitly state why Mr. and Mrs. Hoeft-Ross

did not send the District Court an individual discovery plan and scheduling order,

as Mr. Kealy did, an examination of the record shows why a pro se litigant might

have made such a delay. First, Rule 26(f) and Local Rule 26-1 indicate that the

discovery plan should be submitted after the Rule 26(f) conference. The Rule

26(f) conference never took place, thus it would be reasonable for a pro se litigant

not to individually submit a discovery plan to the district court.8

In a letter Mr. Kealy sent Mr. and Mrs. Hoeft-Ross on September 8, 2006,

Mr. Kealy stated that his scheduling order was very similar to Mr. and Mrs. Hoeft-

8
Mr. Kealy also did not individually submit his discovery plan until
September 8, 2006. (E.R. at 67-70.)
-33-
Ross’s scheduling order and he would be submitting it to the District Court. He

also stated: “[I]t is my intent to inform the Court that additional time will be

needed in order to complete discovery within the otherwise strict deadlines.

Accordingly, it would not be necessary for your [sic] to seek special scheduling, as

my proposed plan will request that in any event. It seems that we have a consistent

view on this issue; therefore, there is no reason for a problem.” (E.R.II. at 30.) A

pro se litigant could easily interpret this as relieving their obligation of submitting

a discovery plan to the court.

Ultimately, it was reasonable for Mr. and Mrs. Hoeft-Ross to believe that the

District Court’s granting of their request for an extension, and Mr. Kealy’s

statements in his September 8, 2006 letter, temporarily relieved them of their

duties under Rule 26(f) and Local Rule 26-1 at least until January 18, 2007.

(2) The post-conference delay

Hiawatha did not attend the January 18, 2007 conference because he was

physically and mentally unwell and because he mixed up the dates of the

conference. In late August 2006, Hiawatha’s existing medical condition began to

deteriorate, resulting in the discovery period being postponed until January 2007.

(E.R.II. at 23; E.R. at 55.) On October 12, 2006, the day before the District Court

stayed the litigation, Hiawatha was in an automobile accident that further

aggravated his condition. (E.R.II at 33, 34, 38.) In their Rule 60(b)(1) motion, Mr.

-34-
and Mrs. Hoeft-Ross stated that they missed the January 18, 2007 conference

because Hiawatha was physically and mentally unable to participate and because

his mental condition caused him to mix up the date of the Conference. (E.R. at

40.)

Hiawatha is unable to control his physical and mental condition. Thus,

granting the Rule 60(1)(b) motion would have been appropriate. However, even if

Hiawatha could have attended and merely forgot about the Conference, such

negligence is the type of neglect anticipated by Rule 60(1)(b) and the Briones Test.

d. Mr. and Mrs. Hoeft-Ross acted in good faith

The fourth factor -- whether the movant acted in good faith -- also requires a

finding of excusable neglect. There is nothing in the record that indicates bad faith

on the part of Mr. and Mrs. Hoeft-Ross. Nor have the Hoefts or the District Court

suggested that Mr. and Mrs. Hoeft-Ross have acted in bad faith. Moreover, Mr.

and Mrs. Hoeft-Ross have corroborated their claims of mental and physical

disability with medical records and declarations from Hiawatha’s physician.

(E.R.II. at 32, 33, 35, 36-37, 38.) Although the District Court disagreed with the

physician’s professional opinion that Hiawatha was not capable of participating in

discovery, the District Court never alleged a belief that Hiawatha was not acting in

good faith. (E.R. at 13-14.) Therefore, Mr. and Mrs. Hoeft-Ross fulfill the good

faith element of the Briones test.

-35-
 Ultimately, the District Court’s denial of the Rule 60(b)(1) motion was an

abuse of discretion because the District Court used the wrong test and applied

violations that did not exist. Moreover, an application of the Briones Test shows

that, even if Mr. and Mrs. Hoeft-Ross’s actions were within their control, which

they were not, Mr. and Mrs. Hoeft-Ross’s neglect was excusable. Therefore, this

Court should reverse the District Court’s ruling regarding Rule 60(b)(1).

III.
CONTRARY TO THE DISTRICT COURT’S FINDINGS, HIAWATHA
HOEFT-ROSS HAS VIABLE CLAIMS UNDER 42 U.S.C. §§ 1981 AND 1982
BECAUSE HE WAS QUALIFIED TO RENT THE HOUSING UNIT AND
THE HOUSING UNIT REMAINED AVAILABLE AFTER THE HOEFTS
REJECTED HIS RENTAL APPLICATION
This Court should reverse the District Court’s order granting summary

judgment and holding that 42 U.S.C. §§ 1981 and 1982 allow a landlord to reject

the rental application of a racial minority but then accept a rental application for

the same unit from a non-racial minority with identical or worse financial

qualifications as the racial minority. A District Court’s decision to grant summary

judgment is reviewed de novo. See, e.g., Universal Health Servs., Inc. v.

Thompson, 363 F.3d 1013, 1019 (9th Cir. 2004); Qwest Comm’ns Inc. v. Berkeley,

433 F.3d 1253, 1256 (9th Cir. 2006), overruled on other grounds by, Sprint

Telephony PCS L.P. v. County of San Diego, 543 F.3d 571 (9th Cir. 2008).

-36-
 The Civil Rights Acts, 42 U.S.C. §§ 1981 and 1982, were established to help

ensure the rights of racial minorities. Section 1981(a) provides,

All persons within the jurisdiction of the United States shall have the

same right in every State and Territory to make and enforce contracts,

to sue, be parties, give evidence, and to the full and equal benefit of

all laws and proceedings for the security of persons and property as is

enjoyed by white citizens, and shall be subject to like punishment,

pains, penalties, taxes, licenses, and exactions of every kind, and to no

other.

42 U.S.C. § 1981(a). Likewise, Section 1982 states, “[a]ll citizens of the United

States shall have the same right, in every State and Territory, as is enjoyed by

white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and

personal property.” 42 U.S.C. § 1982.

Courts have widely applied §§ 1981 and 1982 to housing discrimination

claims. See e.g. Selden Apartments v. United States Dept. of HUD, 785 F.2d 152

(6th Cir. 1986). A plaintiff has a valid claim for housing discrimination under

Sections 1981 and 1982 when the plaintiff can show: “(1) that he or she is a

member of a racial minority; (2) that he or she applied for and was qualified to rent

or purchase certain property or housing; (3) that he or she was rejected; and (4) that

the housing or rental opportunity remained available thereafter.” Phiffer v. Proud

-37-
Parrot Motor Hotel, Inc., 648 F. 2d 548 551 (9th Cir. 1980) (applying elements in

§ 1982 action); Selden Apartments, 785 F.2d 152 (6th Cir. 1986); Sandford v. R.L.

Coleman Realty Co., Inc., 573 F.2d 173, 175 (4th Cir.1978) (elements same under

both the Civil Rights Acts, §§ 1981 and 1982).

The District Court held that Hiawatha made a prima facie case for some, but

not all of the elements of the housing discrimination test. The District Court

correctly held that, for purposes of summary judgment, Hiawatha satisfied the first

element of the test because Hiawatha is of a racial minority, (E.R. at 16); that

Hiawatha satisfied the first half of the second element because an issue of material

fact exists as to whether Hiawatha applied for the rental unit, (Id. at 16-17); and

that Hiawatha satisfied the third element because an issue of material fact exists as

to whether the Hoefts rejected Hiawatha’s rental application. (Id. at 17.)

However, the District Court incorrectly held that Hiawatha did not satisfy

the remaining elements of Sections 1981 and 1982, based on the limited facts

before it. Specifically, the District Court erred in ruling that the record gave no

indication that Hiawatha was qualified to rent the housing unit (id. at 16-17) and

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that the unit did not remain available after the Hoefts rejected Hiawatha’s rental

application. (Id. at 17-18.)9

A. A Reasonable Jury Could Find That Hiawatha Was Qualified To Rent

The Housing Unit.
Based on the limited facts before it, Hiawatha was qualified to rent the

housing unit. A defendant bringing a motion for summary judgment on the

“qualification” element of a housing discrimination claim must show that there is

nothing in the record to reasonably indicate that the plaintiff was “qualified” to rent

the housing unit.10 See, e.g., Phiffer, 648 F.2d at 551 (stating that a plaintiff in a

housing discrimination case must have been qualified to rent the housing unit). If

there is anything in the record from which a jury might reasonably infer that the

plaintiff was qualified to rent the housing unit, then summary judgment on that

issue is inappropriate. See Dietrich v. John Ascuaga’s Nugget, 548 F.3d 892,

896 (9th Cir. 2008) (stating that a court must examine “evidence in the light most

favorable to the nonmoving party” when determining the existence of an issue of

material fact);Balistreri v. Pacifica Police Dept. 901 F.2d 696 (9th Cir. 1990)

9
As explained previously, the District Court sanctions precluded Mr. and Mrs.
Hoeft-Ross from developing the evidence crucial in opposing a motion for
summary judgment
10
Being “qualified to rent” means being “ready and able to accept
defendants’ offer to rent or buy.” Mencer v. Princeton Square Apartments, 228
F.3d 631, 635 (6th Cir. 2000).
-39-
(stating that courts must construe the pleadings of pro se litigants liberally,

especially in civil rights cases).

In the instant case, a reasonable jury could have found that Hiawatha was

qualified to rent the housing unit. The record shows that Mrs. Hoeft-Ross was

qualified to rent the housing unit, as is evidenced by the fact that she actually did

rent the housing unit. (E.R. at 11) Mrs. Hoeft-Ross lived with Hiawatha and was

financially dependent upon Hiawatha. (E.R. at 23.) Thus, construing the record in

the light most favorable to Hiawatha, a reasonable jury could find that he was

qualified to rent the housing unit because he had identical qualifications of

someone who actually rented the unit. Therefore, this Court should vacate the

District Court’s judgment which is based on its finding that the record gives no

indication that Hiawatha was qualified to rent the housing unit.

B. The Housing Unit Remained Available After Appellees Rejected

Hiawatha’s Rental Application
Renting the housing unit remained available after the Hoefts rejected

Hiawatha’s rental application. A valid claim for housing discrimination must show

that the “rental opportunity remained available [after the defendants rejected the

plaintiff].” Phiffer, 648 F.2d at 551; United States Dept. of HUD v. Blackwell, 908

F.2d 864, 870-71 (11th Cir. 1990). In Blackwell, the Eleventh Circuit found that a

plaintiff had shown a prima facie case regarding the “availability” portion of the

housing discrimination test when the landlord continued to try to rent the housing

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unit after he had rejected the plaintiff. See Blackwell, at 908 F.2d at 870-71. Thus

it is prima facie evidence that a “rental opportunity remained available” when the

landlord attempts to, or actually does, rent to another party after a racial minority’s

rental application has been rejected.

The District Court incorrectly held that the rental unit did not remain

available in this case because the Hoefts rented the unit to Monica shortly after

they rejected Hiawatha. (E.R. 17-18.) This ruling defeats the entire purpose

behind Sections 1981 and 1982. Sections 1981 and 1982 were established to help

prevent racial discrimination. However, under the District Court’s ruling, a

landlord could not be held liable for racial discrimination so long as the landlord

rents the unit to a non-racial minority shortly after he rejects a racial minority.

Such an interpretation defies logic and renders Sections 1981 and 1982 utterly

meaningless.

In the instant case, Hiawatha has shown a prima facie case regarding the

fourth element of the housing discrimination test. The record is clear that after

Hiawatha’s rental application was rejected, the Hoefts rented the housing unit to

Monica. Thus, the rental opportunity remained available. The Hoefts rejected

Hiawatha. Therefore, this Court should vacate the District Court’s summary

judgment because Hiawatha has shown a prima facie case for housing

discrimination under Sections 1981 and 1982.

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 CONCLUSION

The District Court’s orders granting judgment in favor of the Hoefts should

be vacated and its orders, denying the Hoeft-Ross’s Rule 60(b)(1) motion and

sanctioning the Hoeft-Ross’s should be reversed, and the case should be remanded

to District Court to reopen discovery.

RESPECTFULLY SUBMITTED this 1st day of April, 2009.

SNELL & WILMER L.L.P.

By: /s/ Jared Reed Richards

Jared Richards, Esq.
3883 Howard Hughes Parkway
Suite 1100
Las Vegas, NV 89169
Telephone (702) 784-5200
Facsimile (702) 784-5252
Attorneys for Appellant
HIAWATHA HOEFT-ROSS

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 CERTIFICATE OF COMPLIANCE

Certificate of Compliance with Type-Volume Limitation, Typeface

Requirements, and Type Style Requirements

1. This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because this brief contains approximately 10,587 words,

excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B).

2. This brief complies with the type face requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because

this brief has been prepared in a proportionally spaced typeface using a

Microsoft Word 2003 processing program in 14-point Times New Roman

type style.

Dated: April 1, 2009 /s/ Jared Reed Richards

Jared Richards

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 CERTIFICATE OF SERVICE

As an employee of Snell & Wilmer L.L.P., and I certify that I mailed a

copy of the foregoing OPENING BRIEF OF APPELLANTS on the 1st day of
April 2009 to the following with postage fully prepaid thereon:

Michael R. Kealy, Esq.

PARSONS BEHLE & LATIMER
50 W. Liberty Street, Suite 750
Reno, NV 89501

/s/ Jared Reed Richards

An Employee of Snell & Wilmer

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Appendix A

-45-
 Summary of Mail Correspondence between Mr. Kealy and Mr. and Mrs.
Hoeft-Ross

Date From Location Content

7/06/06 Defendant E.R.II. at 1 Mr. Kealy attempts to schedule a Rule 26(f)
conference on July 19, 2006, the last day
allowed by Local Rule 26.
7/??/06 Plaintiff E.R.II. at 2 Mr. and Mrs. Hoeft-Ross state that July 19,
2006 does not work for them and ask for a
different date.
7/22/06 Plaintiff E.R.II. at 3 Mr. and Mrs. Hoeft-Ross state that they have
not heard back from Mr. Kealy. They ask for
a conference date after August 4, 2006.
7/27/06 Plaintiff E.R.II. at Since Mr. Kealy has not responded to
4-14 their two letters regarding a 26(f)
conference, Mr. and Mrs. Hoeft-Ross send
Mr. Kealy their proposed discovery plan
and initial disclosures. They ask for Mr.
Kealy’s discovery plan and initial
disclosures.
7/31/06 Defendant E.R.II. at Mr. Kealy asks for a conference date before
15 August 14, 2006, since he has a trial starting
on August 15, 2006.
8/8/06 Plaintiff E.R.II. at Mr. and Mrs. Hoeft-Ross suggest August 10th
16 or 11th for the Rule 26(f) conference. They
remind Mr. Kealy that they have not received
his discovery plan or initial disclosures.
8/8/06 Defendant E.R.II. at Mr. Kealy sends his proposed discovery plan
17 and initial disclosures. He states that he has
not yet heard from Mr. and Mrs. Hoeft-Ross
regarding the pre-August 14th conference
dates.
8/10/06 Defendant E.R.II. at Mr. Kealy states that he could not contact
18-17 plaintiffs in time to confirm an August 11
date. His assistant had tried to telephone the
plaintiffs. Mr. Kealy suggests August 24th or
25th as dates for the Rule 26(f) conference.
8/11/06 Plaintiff E.R.II. at Mr. and Mrs. Hoeft-Ross note that they have

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 20 not received a confirmation of the August
10th or 11th conference. They suggest holding
the conference after Mr. Kealy’s trial. They
suggest either August 29th or 30th.
8/17/06 Defendant E.R.II. at Mr. Kealy accepts the August 30th as the
21 26(f) conference date.
8/18/06 Plaintiff E.R.II. at Mr. and Mrs. Hoeft-Ross state that they can
22 meet on either August 24th, 25th, or their
proposed dates of August 29th or 30th. They
note that they have received Mr. Kealy’s
initial disclosures and discovery plan sent on
August 8, 2006. They refer to Mr. Kealy’s
discovery plan as a “revised discovery
plan.”
8/23/06 Plaintiff E.R.II. at Mr. and Mrs. Hoeft-Ross inform Mr.
23 Kealy that Hiawatha has become very ill.
They ask for an August 31, 2006 Rule 26(f)
conference.
8/24/06 Plaintiff E.R.II. at Mr. and Mrs. Hoeft-Ross note that they have
24 not received an agenda about what will be
discussed at the Rule 26(f) conference.
8/28/06 Defendant E.R.II. at Mr. Kealy states that he cannot meet on
25 August 31, 2006. He asks for new
conference dates after September 5, 2006.
He states that he will submit his discovery
plan to the court himself.
8/30/06 Plaintiff E.R.II. at Monica states that she and her husband will
26-27 not be attending that day’s Rule 26(f)
conference because Hiawatha had been in the
emergency room that day. She states that she
will contact Mr. Kealy as soon as Hiawatha’s
condition is under control. She provides Mr.
Kealy with proof of the emergency room
visit.
8/31/06 Plaintiff E.R.II. at Mrs. Hoeft-Ross states that Hiawatha is
28-29 extremely ill and that they will not be able to
give new dates for a meeting until after a
September 8 doctor’s appointment. She asks
for patience.

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9/08/06 Defendant E.R.II. at Mr. Kealy responds to Monica’s August 31st
30-31 letter. He asks for new Rule 26(f) conference
dates. He states that he has not received a
response to his proposed discovery plan. He
states that his discovery plan is substantially
similar to their discovery plan. He states that
they will not need to seek special scheduling,
since he will request that of the court
himself.

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Appendix B

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LR 26-1. DISCOVERY PLANS AND MANDATORY DISCLOSURES.

(a) [Repealed December 1, 2000. See Fed. R. Civ. P. 26(a).]

(b) [Repealed December 1, 2000. See Fed. R. Civ. P. 26(g)(1).]

(c) [Repealed December 1, 2000. See Fed. R. Civ. P. 26(e).]

(d) Fed. R. Civ. P. 26(f) Meeting; Filing and Contents of Discoverv Plan and

Scheduling Order. Counsel for the plaintiff shall initiate the scheduling of the Fed.

R. Civ. P. 26(f) meeting within thirty (30) days after the first defendant answers or

otherwise appears. Fourteen (14) days after the mandatory Fed. R. Civ. P. 26(f)

conference, the parties shall submit a stipulated discovery plan and scheduling

order. The plan shall be in such form so as to permit the plan, on court approval

thereof, to become the scheduling order required by Fed. R. Civ. P. l6(b). If the

plan sets deadlines within those specified in LR 26-1(e), the plan shall state on its

face in bold type, “SUBMITTED IN COMPLIANCE WITH LR 26-1(e).” If longer

deadlines are sought, the plan shall state on its face “SPECIAL SCHEDULING

REVIEW REQUESTED.” Plans requesting special scheduling review shall

include, in addition to the information required by Fed. R. Civ. P. 26(f) and LR

26-1(e), a statement of the reasons why longer or different time periods should

apply to the case or, in cases in which the parties disagree as to the form or

contents of the discovery plan, a statement of each party’s position on each point in

dispute.
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 (e) Form of Stipulated Discovery Plan and Scheduling Order, Applicable

Deadlines. The discovery plan shall include, in addition to the information required

by Fed. R. Civ. P. 26(f), the following information:

(1) Discovery Cut-Off Date. The plan shall state the date the first

defendant answered or otherwise appeared, the number of days required for

discovery measured from the date the first defendant answers or otherwise appears,

and shall give the calendar date on which discovery will close. Unless otherwise

ordered, discovery periods longer than one hundred eighty (180) days from the

date the first defendant answers or appears will require special scheduling review;

(2) Amending the Pleadings and Adding Parties. Unless the discovery

plan otherwise provides and the court so orders, the date for filing motions to

amend the pleadings or to add parties shall be not later than ninety (90) days prior

to the close of discovery. The plan should state the calendar dates on which these

amendments will fall due;

(3) Fed. R. Civ. P. 26(a)(2) Disclosures (Experts). Unless the

discovery plan otherwise provides and the court so orders, the time deadlines

specified in Fed. R. Civ. P. 26(a)(2)(C) for disclosures concerning experts are

modified to require that the disclosures be made sixty (60) days before the

discovery cut-off date and that disclosures respecting rebuttal experts be made

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thirty (30) days after the initial disclosure of experts. The plan should state the

calendar dates on which these exchanges will fall due;

(4) Dispositive Motions. Unless the discovery plan otherwise provides

and the court so orders, the date for filing dispositive motions shall be not later

than thirty (30) days after the discovery cut-off date. The plan should state the

calendar dates on which these dispositive motions will fall due;

(5) Pretrial Order. Unless the discovery plan otherwise provides and

the court so orders, the joint pretrial order shall be filed not later than thirty (30)

days after the date set for filing dispositive motions. In the event dispositive

motions are filed, the date for filing the joint pretrial order shall be suspended until

thirty (30) days after decision of the dispositive motions or further order of the

court;

(6) Fed. R. Civ. P. 26(a)(3) Disclosures. Unless the discovery plan

otherwise provides and the court so orders, the disclosures required by Fed. R. Civ.

P. 26(a)(3) and any objections thereto shall be included in the pretrial order; and

(7) Form of Order. All discovery plans shall include on the last page

thereof the words “IT IS SO ORDERED” with a date and signature block for the

judge in the manner set forth in LR 6-2.

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 (f) Unless otherwise ordered, Local Rule 26-1(d) and (e) do not apply to

interpleader actions. The procedures in Local Rules 22-1 and 22-2 will govern all

interpleader actions.
9605189.7

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