Jay JOHNSON and Margie Johnson, Plaintiffs-Appellees, v. Robert M. GOLDSMITH and Catherine H. Goldsmith, Defendants-Appellants, 542 F. App'x 607

MEMORANDUM Robert M. Goldsmith and Catherine H. Goldsmith appeal from the decision of the district court which imposed a case-dispos-itive sanction by striking their answer and ordering entry of default. We review a decision to impose such a sanction for an abuse of discretion. Conn. Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1096 (9th Cir.2007).

Before imposing a case dispositive sanction a trial judge must consider five factors: “ ‘(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its dockets; (3) the risk of prejudice to the party seeking sanctions; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.’ ” Id. at 1096 (quoting Jorgensen v. Cassiday, 320 F.3d 906, 912 (9th Cir.2003)). Obviously, the first and second factors ordinarily will support the sanction while the fourth factor ordinarily will not.

The third and fifth factors are generally determinative in deciding whether there was an abuse of discretion. See Adriana Intern. Corp. v. Thoeren, 913 F.2d 1406, 1412 (9th Cir. 1990). Here, the trial judge found the Goldsmith’s behavior during the discovery process prejudicial to the Johnsons. However, no motion to compel compliance with discovery obligations was made and the trial court issued no order to comply with them. The prejudice to the Johnsons from the Goldsmith’s failure to comply with the pretrial order was delay. Delay alone is insufficient to support a case-dispositive sanction. Id.

Here, the controlling consideration is the fifth factor — consideration of less drastic sanctions. As we have explained, the fifth factor should be analyzed with an eye on three considerations: Did the trial court consider less drastic sanctions; did it attempt to use them; and did it warn the party to be sanctioned that a case-disposi-tive sanction might be imposed. Conn. Gen. Life Ins. Co., 482 F.3d at 1096. The trial court did not specifically consider any less drastic sanction, much less attempt to use one, and gave no warning to the Goldsmiths that it would consider a case-dis-positive sanction.

On the record here, this was an abuse of discretion. Because we reverse for failure to adequately consider less drastic sanctions, we express no opinion on the other issues discussed in the briefs. The Johnsons’ motion to strike is denied as moot. REVERSED AND REMANDED. This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3(a).