Unpublished Disposition, 865 F.2d 1271 (9th Cir. 1988)

MEMORANDUM^** 

This case was originally filed more than ten years ago. It has twice before been appealed to this court. It returns, once again, to resolve a narrow legal issue: Did the district court abuse its discretion in ordering the dismissal of appellants' action for failure to prosecute? We hold that the district court did not abuse its discretion and affirm the dismissal.

The issue that divides the parties is who is the prevailing party, and is thus entitled to attorneys fees and costs, in the main action between them. After an appeal to this court, we remanded the case back to the district court to determine disputed factual issues bearing on the status of the parties claiming to have prevailed. The parties prepared briefs on this issue and filed them with district Judge Lydick. Judge Lydick, however, concluded that the issue was not then ripe for review and the briefing was not considered. The issue of prevailing party status was then reconsidered by the bankruptcy court. The appellants appealed an adverse ruling to the district court. It was assigned to Judge Hill. At a status conference, appellants indicated to Judge Hill that they wished the issue submitted on the earlier briefs. The record does not indicate that either Judge Hill or the attorneys for appellees acquiesced in this request. No briefs were filed.

The case was thereupon assigned to Judge Lydick. Following an order to show cause, he issued an order dismissing the appeal for failure to file briefs. He offered to reconsider his order, however, if appellants could demonstrate either the agreement of Judge Hill or of the appellees that the earlier briefs would be considered. After reviewing the transcript of the hearing before Judge Hill, Judge Lydick denied the motion for reconsideration. Appellants appeal.

Appellants contend that the district court failed to consider the agreement of the parties and of Judge Hill to permit the earlier briefs to be considered on their appeal from the bankruptcy court. Whether such an agreement exists, however, is a factual determination that Judge Lydick made against the appellants. He found no agreement to exist. This finding is not clearly erroneous.

Appellants also contend that the judgment of dismissal should be reversed because the appellees would suffer no prejudice by considering the briefs previously filed. We reject this contention. A showing of prejudice under the present circumstances is unnecessary. See Greco v. Stubenberg, No. 87-2231 slip op. 13341, 13345-46 (9th Cir. Oct. 25, 1988).

We review a dismissal for failure to prosecute for an abuse of discretion. Greco, slip op. at 13345. The appellants fail to convince us that the district court abused its discretion in this case.

AFFIRMED.