00-56697 | 9th Cir. | May 23, 2002
Lead Opinion
OPINION
Petitioner, David Pagtalunan (“Pagtalu-nan”) appeals from the district court’s second dismissal with prejudice of his habeas corpus petition. Pagtalunan asserts that the court abused its discretion on remand when it found that his objections to the magistrate judge’s Report and Recommendation offered no reasonable excuse for Pagtalunan’s delay. Based on its finding of inexcusable delay, the court dismissed Pagtalunan’s petition for failure to prosecute and for failure to comply with a court order. After balancing the relevant factors, we hold that the'district court did not abuse its discretion when it dismissed Pag-talunan’s habeas petition with prejudice.
STANDARD OF REVIEW
We review for an abuse of discretion a district court’s dismissal for failure to comply with an order requiring submission of pleadings within a designated time. Ferdik v. Bonzelet, 963 F.2d 1258" court="9th Cir." date_filed="1992-05-22" href="https://app.midpage.ai/document/michael-henry-ferdik-v-joe-bonzelet-sheriff-583449?utm_source=webapp" opinion_id="583449">963 F.2d 1258, 1260 (9th Cir.1992). The trial court’s dismissal will only be disturbed if there is “a definite and firm conviction that the court below committed a clear error of judgment in the
BACKGROUND
Pagtalunan, a state prisoner proceeding pro se, filed his original petition for writ of habeas corpus on December 28, 1998. On February 10, 1999, the magistrate judge filed a Memorandum and Order (“M & 0”) summarily dismissing
Pagtalunan failed to file a first amended petition. On May 21, 1999, the Clerk filed the Notice of Filing of Magistrate Judge’s Report and Recommendation and the Lodging of Proposed Judgment and/or Order, which was served on the parties, together with a copy of the Report and Recommendation (“R & R”). The R & R recommended dismissing the action with prejudice for want of prosecution and Pag-talunan’s related failure to comply with a court order. The notice advised that the parties had until June 14, 1999 to file and serve any objections to the R & R.
On June 16, 1999, two days past the deadline set by the Court, Pagtalunan filed his Objections, including his Request to File First Amended Petition. Without considering Pagtalunan’s objections, on July 2, 1999, the
On July 21, 1999, Pagtalunan filed his Notice of Appeal. On August 10, 1999, the district court issued a Memorandum and Order issuing a certificate of appealability.
In a Memorandum Disposition filed July 7, 2000, we reversed and remanded for further proceedings. Pagtalunan v. Galaza, 229 F.3d 1158 (9th Cir.2000). We held that the district court abused its discretion when it dismissed Pagtalunan’s petition without considering Pagtalunan’s two-day late objections. Id. We went on to state: “We express no opinion on how the district court should rule once it reviews Pagtalu-nan’s excuse for his delay of over four months from the date that his original petition was dismissed (February 10, 1999), to the date that he finally filed his papers with the court.” Id.
On August 21, 2000, the district court issued its Order Approving and Adopting Reports and Recommendation of United States Magistrate Judge. Judgment was entered on August 22, 2000, dismissing Pagtalunan’s action with prejudice. Pag-talunan timely filed his Notice of Appeal on September 20, 2000. On October 4, 2000, the district court issued a Certificate of Appealability.
DISCUSSION
In determining whether to dismiss a claim for failure to prosecute or failure to comply with a court order, the Court must weigh the following factors: (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/respondents; (4) the availability of less drastic alternatives; and (5) the public policy favoring disposition of cases on their merits. Ferdik, 963 F.2d 1258" court="9th Cir." date_filed="1992-05-22" href="https://app.midpage.ai/document/michael-henry-ferdik-v-joe-bonzelet-sheriff-583449?utm_source=webapp" opinion_id="583449">963 F.2d at 1260-61.
1.Public’s interest in expeditious resolution of litigation
“The public’s interest in expeditious resolution of litigation always favors dismissal.” Yourish v. California Amplifier, 191 F.3d 983" court="9th Cir." date_filed="1999-10-08" href="https://app.midpage.ai/document/norman-yourish-v-california-amplifier-ira-coron-david-nichols-michael-ferron-arthur-hausman-william-mckenna-766183?utm_source=webapp" opinion_id="766183">191 F.3d 983, 990 (9th Cir.1999). Given Pagta-lunan’s failure to pursue the case for almost four months, this factor weighs in favor of dismissal.
2. Court’s need to manage its docket
The trial judge is in the best position to determine whether the delay in a particular case interferes with docket management and the public interest. Id. Arguably, Pagtalunan’s petition has consumed some of the court’s time that could have been devoted to other cases on the docket. It is incumbent upon the Court to manage its docket without being subject to routine noncompliance of litigants such as Pagtalu-nan. Ferdik, 963 F.2d 1258" court="9th Cir." date_filed="1992-05-22" href="https://app.midpage.ai/document/michael-henry-ferdik-v-joe-bonzelet-sheriff-583449?utm_source=webapp" opinion_id="583449">963 F.2d at 1261. Accordingly, this factor also weighs in favor of dismissal.
3. Risk of prejudice to defendants/respondents
To prove prejudice, a defendant must establish that plaintiffs actions impaired defendant’s ability to proceed to trial or threatened to interfere with the rightful decision of the case. Malone v. United States Postal Serv., 833 F.2d 128" court="9th Cir." date_filed="1987-11-23" href="https://app.midpage.ai/document/ann-j-malone-v-united-states-postal-service-an-agency-of-the-united-states-497041?utm_source=webapp" opinion_id="497041">833 F.2d 128, 131 (9th Cir.1987). To date, the government has not been ordered to respond to Pagtalunan’s habeas petition. We have previously recognized that pendency of a lawsuit is not sufficiently prejudicial in and of itself to warrant dismissal. Yourish, 191 F.3d 983" court="9th Cir." date_filed="1999-10-08" href="https://app.midpage.ai/document/norman-yourish-v-california-amplifier-ira-coron-david-nichols-michael-ferron-arthur-hausman-william-mckenna-766183?utm_source=webapp" opinion_id="766183">191 F.3d at 991. “Limited delays and the prejudice to a defendant from the pen-dency of a lawsuit are realities of the system that have to be accepted, provided the prejudice is not compounded by ‘unreasonable’ delays.” Id. (quoting Ash v. Cvetkov, 739 F.2d 493" court="9th Cir." date_filed="1984-08-06" href="https://app.midpage.ai/document/hiram-ash-v-eugene-cvetkov-438954?utm_source=webapp" opinion_id="438954">739 F.2d 493, 496 (9th Cir.1984)).
However, we have also related the risk of prejudice to the plaintiffs reason for defaulting. Id. Pagtalunan sought to
4. Availability of less drastic alternatives
Despite the magistrate judge’s initial granting of leave to amend coupled with the warning of dismissal for failure to comply; the opportunity to file objections to the R & R;
5. Public policy favoring disposition of cases on their merits
Public policy favors disposition of cases on the merits. Thus, this factor weighs against dismissal. Hernandez v. City of El Monte, 138 F.3d 393" court="9th Cir." date_filed="1998-03-03" href="https://app.midpage.ai/document/margot-hernandez-v-city-of-el-monte-wayne-clayton-752110?utm_source=webapp" opinion_id="752110">138 F.3d 393, 399 (9th Cir.1998).
CONCLUSION
Three factors favor dismissal and two factors weigh against dismissal. This is a close case and, under these circumstances, we cannot say that the district court abused its discretion.
AFFIRMED.
. Rule 4 of 28 U.S.C. § 2254 provides: “If it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petitioner to be notified.”
. In fact, a prisoner has no constitutional right to an attorney during a habeas proceeding. See Ortiz v. Stewart, 149 F.3d 923" court="9th Cir." date_filed="1998-07-01" href="https://app.midpage.ai/document/ignacio-alberto-ortiz-petitioner-appellant-v-terry-stewart-respondent-appellee-755880?utm_source=webapp" opinion_id="755880">149 F.3d 923, 932 (1998).
. Where a magistrate judge renders an R & R, the parties have an opportunity to file objections before the district court acts on the R & R. 28 U.S.C. § 636(b)(1) (West 2001). While not technically constituting an "alternative” to dismissal, the submission of objections afforded Pagtalunan another opportunity to challenge the ruling before his petition was dismissed.
. Cases prior to Yourish implicitly accepted pursuit of less drastic alternatives prior to disobedience of the court’s order as satisfying this element. See Ferdik, 963 F.2d 1258" court="9th Cir." date_filed="1992-05-22" href="https://app.midpage.ai/document/michael-henry-ferdik-v-joe-bonzelet-sheriff-583449?utm_source=webapp" opinion_id="583449">963 F.2d at 1262 (holding that the district court’s grant of an additional thirty days to amend the complaint "constituted an attempt at a less drastic sanction” and noting that a warning that failure to obey the court’s order would result in dismissal can satisfy the "consideration of alternatives requirement”); Malone, 833 F.2d 128" court="9th Cir." date_filed="1987-11-23" href="https://app.midpage.ai/document/ann-j-malone-v-united-states-postal-service-an-agency-of-the-united-states-497041?utm_source=webapp" opinion_id="497041">833 F.2d at 132-33 (concluding that the court’s earlier declaration of a mistrial and subsequent pretrial order constituted attempts at less drastic alternatives). However, Yourish has eroded the persuasive force of these prior opinions.
Concurrence Opinion
Concurring:
I write separately only to assure our Chief Judge that we in the majority are not “preoccupied” with the standard of
Dissenting Opinion
Dissenting:
There are times when our preoccupation with a standard of review, abuse of discretion, causes us to lose sight of our responsibility to ensure that the district courts exercise discretion within the proper limits. As the majority recognizes, the dis-positive factors to be considered in determining whether to dismiss a plaintiffs case as a sanction for violating a court-imposed deadline are usually prejudice and the availability of less drastic alternatives. See Yourish v. California Amplifier, 191 F.3d 983" court="9th Cir." date_filed="1999-10-08" href="https://app.midpage.ai/document/norman-yourish-v-california-amplifier-ira-coron-david-nichols-michael-ferron-arthur-hausman-william-mckenna-766183?utm_source=webapp" opinion_id="766183">191 F.3d 983, 991-92 (9th Cir.1999).
Prejudice means prejudice to the defendant, Mir v. Fosburg, 706 F.2d 916" court="9th Cir." date_filed="1983-04-29" href="https://app.midpage.ai/document/jehan-zeb-mir-v-richard-g-fosburg-418058?utm_source=webapp" opinion_id="418058">706 F.2d 916, 918 (9th Cir.1983), and since this defendant has not yet been served, it is difficult to see how the plaintiffs delay in this case could have prejudiced this defendant. The district court did not even discuss prejudice or the absence of it. In my view, the district court erred in this regard. The majority’s discussion of prejudice does not consider the effect of the delay on the defendant. The majority does recognize that the district court erred (additionally, in my view) in not considering less drastic alternatives to dismissal.
I thus conclude that the district court did not exercise its discretion within appropriate limits because it failed to consider the relevant factors in imposing dismissal as a sanction. Of course, our courts are very busy. The irony is that this case has now been before a half dozen Article III Judges and languished in the federal courts for nearly four years without anyone taking a peek at its merits. We have already reversed and remanded once before. Pagtalunan v. Galaza, 229 F.3d 1158 (9th Cir.2000) (unpublished). Little of this lost time and energy would have been necessary had the district court followed, in the first instance, our long line of circuit authority insisting that the district court weigh all the relevant factors before deciding to dismiss a plaintiffs case. See, e.g., Yourish, 191 F.3d 983" court="9th Cir." date_filed="1999-10-08" href="https://app.midpage.ai/document/norman-yourish-v-california-amplifier-ira-coron-david-nichols-michael-ferron-arthur-hausman-william-mckenna-766183?utm_source=webapp" opinion_id="766183">191 F.3d at 990; Hernandez v. City of El Monte, 138 F.3d 393" court="9th Cir." date_filed="1998-03-03" href="https://app.midpage.ai/document/margot-hernandez-v-city-of-el-monte-wayne-clayton-752110?utm_source=webapp" opinion_id="752110">138 F.3d 393, 399 (9th Cir.1998); Ferdik v. Bonzelet, 963 F.2d 1258" court="9th Cir." date_filed="1992-05-22" href="https://app.midpage.ai/document/michael-henry-ferdik-v-joe-bonzelet-sheriff-583449?utm_source=webapp" opinion_id="583449">963 F.2d 1258, 1260-61 (9th Cir.1992); Thompson v. Housing Authority, 782 F.2d 829" court="9th Cir." date_filed="1986-02-11" href="https://app.midpage.ai/document/alphonso-thompson-v-the-housing-authority-of-the-city-of-los-angeles-a-public-corporation-463804?utm_source=webapp" opinion_id="463804">782 F.2d 829, 831 (9th Cir.1986); Henderson v. Duncan, 779 F.2d 1421" court="9th Cir." date_filed="1986-01-07" href="https://app.midpage.ai/document/jeffrey-henderson-v-c-russell-duncan-462523?utm_source=webapp" opinion_id="462523">779 F.2d 1421, 1423-24 (9th Cir.1986); Ash v. Cvetkov, 739 F.2d 493" court="9th Cir." date_filed="1984-08-06" href="https://app.midpage.ai/document/hiram-ash-v-eugene-cvetkov-438954?utm_source=webapp" opinion_id="438954">739 F.2d 493, 496 (9th Cir.1984); Mir, 706 F.2d 916" court="9th Cir." date_filed="1983-04-29" href="https://app.midpage.ai/document/jehan-zeb-mir-v-richard-g-fosburg-418058?utm_source=webapp" opinion_id="418058">706 F.2d at 918.
I therefore respectfully dissent.