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Krain v. Romm

filed*fn*: June 21, 1991.

LAWRENCE S. KRAIN, M.D., PLAINTIFF-APPELLANT,
v.
HERMAN ROMM, M.D., ET AL., DEFENDANTS-APPELLEES



Appeal from the United States District Court for the Central District of California; James M. Ideman, District Judge, Presiding; D.C. No. CV-88-5105-JMI.

Beezer, Wiggins, and Fernandez, Circuit Judges.

MEMORANDUM

Lawrence S. Krain appeals pro se the district court's order dismissing his action without prejudice for failure to prosecute. We review dismissals for lack of prosection for an abuse of discretion. See Hamilton v. Neptune Orient Lines, Ltd. 811 F.2d 498, 499 (9th Cir. 1987) We have jurisdiction pursuant to 28 U.S.C. ยง 1291, and we affirm.

Krain filed this action in the district court on August 22, 1988. On August 29, 1989, the district court issued Krain an order to show cause why his action should not be dismissed for failure to prosecute on the grounds that he had not completed service of process upon defendants. The order required Krain to appear at the district court for a hearing on the matter on September 19, 1989. On September 11, 1989, Krain filed objections, a motion for a continuance of the hearing, and a motion for consolidation of this case with another. The district court granted Krain's motion for continuance, denied his motion for consolidation, and ordered Krain to file proofs of service on defendants by October 31, 1989. The order warned Krain that failure to file the proofs of service would result in dismissal. No proofs of service were ever filed. On December 9, 1989, the district court dismissed the action without prejudice.

The district court must weight five factors before dismissing an action for failure to prosecute: (1) the public's interest in expeditious resolution of the litigation; (2) the court's need to manage its docket; (3) the availability of less drastic sanctions; (4) the public policy favoring disposition of cases on the merits; and (5) the risk of prejudice to defendants. See Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986). Where, as here, the district court does not explicitly consider these factors, we independently review the record to determine whether the court of dismissal was an abuse of discretion. Id. at 1424.

The first two factors are expeditious resolution of litigation and the trial court's interest in docket control. Although Krain's action was filed on August 22, 1988, he had not completed service of process on defendants one year later. Krain's failure to timely serve defendants impeded the resolution of the case and prevented the district court from adhering to its schedule. Thus, these two factors weigh in favor of dismissal. See Malone v. United States Postal Serv., 833 F.2d 128, 133 (9th Cir. 1987).

Warning a plaintiff that failure to obey a court order will result in dismissal is generally sufficient to meet the "consideration of alternatives" requirement. Id. at 132. Here, the district court warned Krain that his action would be subject to dismissal if he failed to file proofs of service as required. The district court granted Krain six weeks in which to comply with this order. Krain, however, never filed the proofs of service as ordered. Therefore, the district court properly considered other alternatives before dismissing Krain's action, and thus, this factor weights in favor of dismissal. Id. Although defendants have made no specific showing of prejudice, this factor also weighs in favor of dismissal because prejudice may be presumed from unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986).

The factor favoring disposition of cases on the merits weighs against dismissal. See Malone, 833 F.2d at 133 n.2. This factor, however, is insufficient to outweigh the four factors which weight in favor of dismissal. Given these circumstances, we cannot conclude that the district court abused its discretion in dismissing Krain's action for failure to prosecute. See Hamilton, 811 F.2d at 499.

AFFIRME ...


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