Unpublished Disposition, 921 F.2d 280 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 921 F.2d 280 (9th Cir. 1990)

HIGHGATE PICTURES, INC., Plaintiff-Appellant,v.Judith DE PAUL, Defendant,andSilver Chalice Productions International, Ltd., SilverChalice Productions, Ltd., Diamond Head FinanceCompany, Defendants-Appellees.

No. 89-55908.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 8, 1990.* Decided Dec. 13, 1990.

Before WRIGHT, FARRIS and NOONAN, Circuit Judges.


Highgate Pictures appeals from the district court order dismissing its action without prejudice for want of prosecution and the denial of its motion to reconsider the dismissal. We affirm.

The district court has the inherent power to dismiss a case for lack of prosecution and we reverse such a dismissal only if the record reveals an abuse of discretion. Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986).

We recognize that the district court's order for dismissal did not explicitly assess the factors set forth in Henderson. However, express findings as to the factors are not required, id. at 1424, and our independent review of the record supports the district court's order.

We do not find abuse of discretion in the district court's determination that Highgate's response to the third order to show cause was insufficient to justify further delay in resolution of the case. Highgate had been on notice for over nine months of the need to prepare a motion for a default judgment and failed to substantiate damages. Although Highgate contends that delay was reasonable and unavoidable because of the unavailability of necessary witnesses, the record does not indicate that the district court abused its discretion in determining that the delay was due to a lack of diligence. Rather, the record suggests that one of the witnesses who could substantiate damages was available after the date on which Highgate was on notice of the need to prepare an adequate motion for default judgment.

The district court is "in the best position to determine what period of delay can be endured before its docket becomes unmanageable." Id. at 1423. The public's interest in the expeditious resolution of litigation and the court's need to manage its docket weigh heavily against Highgate. Moreover, the history of this litigation is replete with warnings regarding dilatory pursuit of the action. Three orders for cause as to why the suit should not be dismissed for want of prosecution were issued. We are satisfied that the district court gave due consideration to alternatives before deciding to dismiss the matter without prejudice.

Highgate emphasizes that Silver Chalice has suffered no prejudice as a consequence of the delay. However, prejudice to the defendant is not determinative, id. at 1425, and on this record we do not find an abuse of discretion.

The district court did not abuse its discretion in denying reconsideration of the dismissal. Highgate failed to present fact or law which was not or could not have been shown at the time of dismissal. Local Rule 7.16(b).



The panel unanimously finds this case suitable for submission without oral argument. See 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 Circuit Rule 36-3