Unpublished Disposition, 902 F.2d 40 (9th Cir. 1989)

MEMORANDUM^** 

Kenneth B. Quansah, Jr. appeals pro se the district court's sua sponte order dismissing his action under Fed. R. Civ. P. 41(b) for failure to prosecute his case. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

We review the district court's Rule 41(b) dismissal for failure to prosecute for an abuse of discretion. See Hernandez v. Whiting, 881 F.2d 768, 770 (9th Cir. 1989). Under this standard, we will not reverse the court's decision unless we have "a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors." Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th Cir. 1976).

When considering whether to dismiss an action for lack of prosecution, a district court must consider " '(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.' " Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (per curiam) (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). Because the district court did not explicitly set forth its consideration of the relevant factors, we review the record independently. See Malone v. United States Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987), cert. denied, 109 S. Ct. 59 (1988).

Quansah filed his complaint on November 5, 1987. He last took action on his case on February 16, 1988, when he filed a request for a court-appointed attorney. On April 14, 1988, the district court granted Santa Clara County Sheriff's Department's motion to dismiss, but allowed Quansah thirty days leave to amend. On May 3, 1989, the court issued an order to show cause why the action should not be dismissed and noticed a hearing for May 22, 1989. Quansah failed to appear at the hearing. On May 24, 1989, the court ordered Quansah's action dismissed.

The first two dismissal factors support the district court's decision to dismiss Quansah's action. Quansah's failure to take any action for well over a year impeded the expeditious resolution of his case. See Malone, 833 F.2d at 131. Also, given Quansah's failure to offer any excuse for his delay, as discussed below, we find no fault with the district court's management of its docket. See Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984) (stating that the district court is best situated to determine how to manage its docket), cert. denied, 470 U.S. 1007 (1985).

Third, Quansah had the ultimate burden of persuasion as to the reasonableness of his delay and the lack of prejudice to the defendants. See Franklin v. Murphy, 745 F.2d 1221, 1232 (9th Cir. 1984). Quansah contends that he never received a copy of the April 14, 1988 order because the district court mailed the order to the wrong address.

Under Rule 41(b), however, Quansah was required to prosecute his case with reasonable diligence. See Moore v. Telfon Communications Corp., 589 F.2d 959, 967 (9th Cir. 1978). There is no evidence in the record that Quansah tried to contact the court to discover the status of his case after February 16, 1988.¹  Moreover, Quansah states that after learning of the April 14, 1988 order, he refused to amend his complaint. Finally, Quansah offered no excuse for his failure to either appear at the May 22, 1989 hearing on the order to show cause or submit pleadings in support of his position.²  Under these circumstances, Quansah's delay in proceeding with his case was unreasonable. Such delay creates a presumption of prejudice to the defendants which Quansah has failed to rebut. Henderson, 779 F.2d at 1423.

Fourth, the district court's order to show cause expressly warned Quansah that his action would be dismissed if he failed to proceed with his case. This warning satisfied the district court's obligation to consider less drastic alternatives to dismissal. See Malone, 833 F.2d at 131.³ 

Finally, the public policy in favor of deciding cases on their merits weighs against dismissal. See id. at 133 n. 2. This factor, however, is insufficient to outweigh the other four factors which, in this case, support dismissal. See id.

From our independent review of the record, see Malone, 833 F.2d at 130, we are not convinced that the district court committed a clear error in judgment in its weighing of the relevant factors, see Anderson, 542 F.2d at 524. We find, therefore, that the court did not abuse its discretion in dismissing Quansah's action for failure to prosecute his case. See Hernandez, 881 F.2d at 770.

AFFIRMED.⁴