John Ronald Bertram, Plaintiff-appellant, v. Jay H. Picking; Julie Bertram; Law Offices of Pray, Price,williams, Russell, Defendants-appellees, 53 F.3d 337 (9th Cir. 1995)

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US Court of Appeals for the Ninth Circuit - 53 F.3d 337 (9th Cir. 1995) Submitted April 19, 1995. *Decided April 27, 1995

Before: BROWNING, SNEED, and T.G. NELSON, Circuit Judges.


John Ronald Bertram appeals pro se the district court's dismissal with prejudice pursuant to Fed. R. Civ. P. 41(b) of his 42 U.S.C. § 1983 action against attorney Jay Picking and the law offices of Pray, Price, Williams, and Russell for failure to comply with the court's order to file an amended complaint.1  We review the district court's dismissal for abuse of discretion, see West Coast Theater Corp. v. City of Portland, 897 F.2d 1519, 1523 (9th Cir. 1990), and we affirm.

Pursuant to Fed. R. Civ. P. 41(b), the district court may dismiss an action where the plaintiff fails to obey an order of the court. A dismissal under Rule 41(b) will not be disturbed 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." Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987). The relevant factors include: "(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). If the district court made no specific findings to show that it considered these factors, this court will review the record independently to determine whether the district court abused its discretion. Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986).

Bertram provides no explanation for his failure to comply with the district court's explicit order to amend his complaint. In dismissing the action, the district court adopted the magistrate's report which detailed the district court's warning to Bertram of possible dismissal if he failed to file an amended complaint. As the district court clearly found, Bertram failed to obey the district court's order. We have reviewed the record and conclude that the district court did not abuse its discretion by dismissing Bertram's action for failing to file an amended complaint. Id.



The panel unanimously finds this case suitable for decision 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


Appellees contend that Bertram failed to file a timely notice of appeal. A review of the district court docket sheet indicates, however, that Bertram filed a timely notice of appeal on July 25, 1994