Unpublished Disposition, 899 F.2d 19 (9th Cir. 1988)

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US Court of Appeals for the Ninth Circuit - 899 F.2d 19 (9th Cir. 1988)

Merle L. ROYSE, Plaintiff-Appellant,v.Virgil VASQUEZ, et al., Defendants-Appellees.

No. 88-4300.

United States Court of Appeals, Ninth Circuit.

Submitted March 16, 1990.* Decided March 21, 1990.

Before JAMES R. BROWNING, ALARCON and POOLE, Circuit Judges.


MEMORANDUM** 

Merle Royse appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 action for failure to prosecute under Fed. R. Civ. P. 41(b). We review for an abuse of discretion, Hernandez v. Whiting, 881 F.2d 768, 770 (9th Cir. 1989), and affirm.

After two warnings that failure to respond to the defendants' pleadings would lead to dismissal with prejudice under Fed. R. Civ. P. 41(b), the district court allowed Royse thirty days to show cause why his civil rights complaint should not be dismissed. The court also issued a third warning that failure to show good cause would result in dismissal with prejudice. Royse responded by arguing that his motion for voluntary dismissal should have been granted. On October 12, 1988, the district court dismissed the action with prejudice for failure to prosecute.

Royse contends that the district court erred in dismissing his complaint with prejudice after he sought a voluntary dismissal. This contention fails.

Under Rule 41(a), the plaintiff may dismiss an action without order of the court "by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment ..." Fed. R. Civ. P. 41(a). Here, Royse was not entitled to voluntary dismissal of the action because the defendants had already served both their answer and a motion for summary judgment. See Fed. R. Civ. P. 41(a).

Moreover, the district court did not abuse its discretion in dismissing the action with prejudice. Under Rule 41(b), an action may be dismissed involuntarily " [f]or failure of the plaintiff to prosecute or to comply with these rules or any order of court ..." Fed. R. Civ. P. 41(b). However, the district court is required to weigh five factors before dismissing an action for failure to prosecute: " '(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. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987), cert. denied, 109 S. Ct. 59 (1988) (quoting Thompson v. Housing Authority, 782 F.2d 829, 832 (9th Cir.), cert. denied, 479 U.S. 829 (1986)).

The district court properly weighed the factors before ordering involuntary dismissal. See Malone, 833 F.2d at 130. The first two factors support the court's decision because Royse's refusal to comply with the district court's orders impeded resolution of the case and prevented the district court from adhering to its scheduled docket. See id. at 131. The third factor also lends support because the defendants were prejudiced by the irremediable costs and burdens imposed upon them. See id. Additionally, the multiple warnings given to Royse sufficed to meet the consideration of alternatives requirement. See id. at 132. Finally, the public policy favoring disposition on the merits was not sufficient to outweigh the four other factors. See id. at 133, n. 2.

AFFIRMED.

 *

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

 **

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

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