Unpublished Disposition, 889 F.2d 1095 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 889 F.2d 1095 (9th Cir. 1989)

No. 86-6089.

United States Court of Appeals, Ninth Circuit.

Before HUG and CANBY, Circuit Judges, and DAVID A. EZRA,**  District Judge.


Johnson appeals from the order dismissing his action, without prejudice, for lack of prosecution. A district court's order dismissing an action for lack of prosecution will be reversed only for an abuse of discretion. Ash v. Cvetkof, 739 F.2d 493, 495 (9th Cir. 1984). Dismissal without prejudice is appealable under 28 U.S.C. § 1291. Ash, 739 F.2d at 496.

In Ash, this court held that the district court did not abuse its discretion in dismissing a case for failure to prosecute even though the period of delay was only 1 month. Several reasons were given for this conclusion: (1) dismissal was without prejudice; (2) plaintiff was notified of impending dismissal and given an opportunity to preserve his action by explaining the delay and going forward with the case; (3) despite the warning, plaintiff failed to respond in any way; and (4) "the district court is in a much better position than we are to determine what period of delay can be endured before its docket becomes unmanageable." Ash, 739 F.2d at 496-97.

These same factors exist in the instant case: (1) dismissal was without prejudice; (2) Johnson was warned and given a chance to respond; (3) Johnson did not respond in any way; and (4) the district court is better able to see if Johnson's claim was clogging up the docket.

The district court did not articulate the ways in which Johnson was delaying. After reviewing the record it appears that Johnson failed to serve the government with notice regarding his pending claim. If defendants do not receive service, they are unable to respond. It would be difficult, if not impossible, for district courts to expeditiously manage dockets in which defendants were not served. The dismissal without prejudice, when the plaintiff failed to serve the complaint within four months after filing it, is not an abuse of discretion.



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and 9th Cir.R. 34-4


The Honorable David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3