Unpublished Disposition, 931 F.2d 897 (9th Cir. 1989)

MEMORANDUM^** 

Lily Spencer appeals pro se the district court's dismissal of her 42 U.S.C. § 1983 civil rights action with prejudice and her pendent state claims. The court held that dismissal with prejudice was warranted due to Spencer's failure to diligently prosecute her action, her failure to state a claim for which relief can be granted, and because her claims were barred by the statute of limitations.¹  We review the district court's dismissal for failure to prosecute for an abuse of discretion, See Hernandez v. Whiting, 881 F.2d 768, 770 (9th Cir. 1989). We affirm.

* FACTS

On June 13, 1986, Spencer, then pro se, filed a complaint under 42 U.S.C. § 1983 against Defendants. On February 19, 1987, Defendants filed a motion to dismiss or for a more definite statement. On March 26, 1987, Magistrate Penne dismissed the complaint and granted Spencer until May 1, 1987 to file an amended complaint.

On May 1, 1987, Spencer filed her first amended complaint. On May 21, 1987, Defendants filed a motion to dismiss the first amended complaint.

The case was reassigned from Magistrate Penne to Magistrate Eick who granted Defendants' motion to dismiss the first amended complaint on May 9, 1988, and granted Spencer 30 days to file a second amended complaint.

On June 10, 1988, Spencer, now represented by counsel, filed a second amended complaint. In a September 23, 1988 Memorandum and Order, Magistrate Eick dismissed Spencer's second amended complaint finding that Spencer failed to state a claim for which relief could be granted, and alternatively, that her civil rights claim was barred by the statute of limitations. The Memorandum and Order granted Spencer 30 days to file a third amended complaint, and warned that failure to file a timely third amended complaint could result in a recommendation that the action be dismissed for failure to prosecute. Spencer failed to file the third amended complaint by the prescribed time.

On October 27, 1988, Magistrate Eick filed a Report and Recommendation that the district court dismiss the action with prejudice for failure to prosecute.

On November 14, 1988, Spencer filed untimely objections to the magistrate's Report and Recommendation, together with a declaration from her attorney. In the declaration, the attorney states that during the time the third amended complaint was due, he was ill, and thus, unable to prepare the amended complaint. The magistrate then issued an order on November 15, 1988 which required the to attorney submit additional medical information by November 25, 1988, necessary to determine whether the attorney's actions were due to excusable neglect. The attorney failed to submit this information. On November 28, 1988, the attorney lodged a declaration asserting that his failure to submit the required information by the November 25th deadline was due to the fact that he could not see his doctor until January 14, 1989. On November 29, 1989, the magistrate sua sponte filed an order extending the deadline to furnish the required information until January 30, 1989. The order also required that Spencer lodge a proposed third amended complaint by the January 30th deadline. According to the magistrate's Final Report, Spencer filed but did not lodge, a proposed third amended complaint; the attorney again failed to submit the additional information required by the court.

On February 13, 1989, Magistrate Eick submitted his Final Report and Recommendation to the district court. The Final Report incorporated by reference the findings and grounds for dismissal (i.e., failure to prosecute) made in the October 27, 1988 Report and Recommendation and cited additional grounds for dismissal. Spencer did not object to the magistrate's Final Report. The district court adopted the Final Report and dismissed the action with prejudice.

II

ANALYSIS

The district court must weigh five factors before dismissing a case 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 defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions. See Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987), cert. denied, 488 U.S. 819 (1988). If the district court does not explicitly consider these factors, we independently review the record to determine whether the order of dismissal was an abuse of discretion. Id.

A. Expeditious Litigation and Docket Management

Spencer filed her original complaint against Defendants in June of 1986. The magistrate allowed her several opportunities to amend her complaint to state a claim against the Defendants. Her attorney's failure to file a timely third amended complaint, and his continued failure to comply with the magistrate's order for supplemental information delayed the resolution of the case and interfered with the court's orderly management of its docket. Thus, the first two dismissal factors, the public interest in expeditious resolution of litigation and the district court's interest in managing its docket, support the district court's order of dismissal. See id. at 131.

To show prejudice, a defendant must show that plaintiff's actions interfered with defendant's ability to proceed to trial or interfered with the rightful decision of the case. See id. Here, no specific showing of prejudice has been made by Defendants. We have held, however, that where counsel continues to disregard the district court's schedule, deadlines and warnings, this factor is not determinative in evaluating whether the district court's order of dismissal was proper. See id. Despite the court's warning that Spencer's case could result in dismissal for failure to file the third amended complaint, the attorney failed to timely file the third amended complaint. Given the disregard of the magistrate's orders, the Defendants' failure to show prejudice is not dispositive in our evaluation of the propriety of the district court's dismissal. See id.

The following factors are particularly relevant in determining whether a district court has considered alternatives to dismissal: (1) whether the court explicitly discussed whether less drastic sanctions were feasible and explained why alternative sanctions would be inadequate; (2) whether the court implemented alternative sanctions before ordering dismissal; and (3) whether the court warned the plaintiff of the possibility of dismissal. See id. at 132.

The district court did not explicitly discuss the feasibility of alternatives to dismissal. If, however, the district court actually tries alternatives before dismissing, explicit discussion of alternatives is unnecessary. See id. Here, before dismissing, the magistrate allowed the plaintiff several opportunities to amend, extensions of time to comply with court orders, and warned the plaintiff that her case could be dismissed for failure to diligently prosecute. Warning a plaintiff that failure to obey a court order will result in dismissal may, in itself, suffice to meet the "consideration of alternatives requirement." See id. Thus, we conclude that this fourth factor weighs against dismissal.

D. Public Policy Favoring Disposition on the Merits

Although the fifth factor weighs against dismissal, it does not outweigh the other factors. We cannot conclude that pursuant to the five factors, the district court's decision to dismiss Spencer's case for failure to prosecute was an abuse of discretion. Accordingly, we affirm.² 

AFFIRMED.