Douglas Johnson v. Wyndham Vacation Ownership Inc

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DOUGLAS JOHNSON,
Plaintiff-Appellant,
v.
WYNDHAM VACATION OWNERSHIP
INC,
Defendant-Appellee.
No. 17-35186
D.C. No. 2:15-cv-00766-RSL
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Submitted January 16, 2018**
Before: REINHARDT, TROTT, and HURWITZ, Circuit Judges.
Douglas Johnson appeals pro se from the district court’s judgment
dismissing as a discovery sanction his action alleging federal claims. We have
jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion, Valley
Eng’rs Inc. v. Elec. Eng’g Co., 158 F.3d 1051, 1057 (9th Cir. 1998), and we
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
JAN 22 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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affirm.
The district court did not abuse its discretion by dismissing Johnson’s action
as a discovery sanction after first imposing a less drastic sanction and warning that
noncompliance with discovery orders would result in dismissal. See id. (setting
forth factors to be considered before dismissing under Fed. R. Civ. P. 37(b)).
The district court did not abuse its discretion by denying Johnson’s request
to appoint new counsel. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009)
(setting forth standard of review and the “exceptional circumstances” requirement).
We decline to exercise our discretion to review the denial of Johnson’s
motion for summary judgment on his ERISA claim. See Jones-Hamilton Co. v.
Beazer Materials & Servs, Inc., 973 F.2d 688, 694 n.2 (9th Cir. 1992) (explaining
exception under which the court may exercise its discretion to review a denial of
summary judgment, which ordinarily is not appealable).
We reject as without merit Johnson’s contentions that the district court
sabotaged or retaliated against him by, among other things, imposing a monetary
sanction, or erred by failing to conduct a hearing on his former counsel’s motion to
withdraw.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or documents and facts not presented to the district court. See
Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009); United States v. Elias,

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921 F.2d 870, 874 (9th Cir. 1990).
AFFIRMED.

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