No. 94-15983, 56 F.3d 75 (9th Cir. 1995)

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US Court of Appeals for the Ninth Circuit - 56 F.3d 75 (9th Cir. 1995) Submitted May 16, 1995. *Decided May 18, 1995

Before: WALLACE, Chief Judge, HUG and NOONAN, Circuit Judges.


Bryan C. Wu appeals pro se the district court's dismissal for failure to prosecute and for failure to obey discovery orders, pursuant to Fed. R. Civ. P. 37 and 41, of his action against his employer, International Business Machines Corporation ("IBM").

Pursuant to Fed. R. Civ. P. 37 and 41(b), the district court may dismiss an action where the plaintiff fails to obey an order of the court. Such dismissal 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).

Our independent review of the record leads us to conclude that the district court did not err in ordering the sanction of dismissal against Wu. Id. Wu's motion for voluntary dismissal without prejudice is denied. IBM's motion for monetary sanctions against Wu is denied.



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