At page 804 Court power to dismiss for want of prosecution33 citing casesaffirming “[t]hat □ 25 court has power to dismiss an action for want of prosecution on its own motion, both unde Rule 41 (b), Fed. R. Civ. P., or under its local rule, or even in the absence of such rules, 1 settled in this circuit
- Scanlan, No. 1:26-cv-00069 (D. Haw. July 13, 2026).States S. S. Co. v. Philippine Air Lines, 426 F.2d 803, 804 (9th Cir. 1970).
- Edelstein, No. 2:25-cv-00003 (D. Nev. Nov. 12, 2025).Finally, Nelson’s lengthy delay in filing her Motion is prejudicial. ”[T]he law presumes 19 injury from unreasonable delay.” States S. S. Co. v. Philippine Air Lines, 426 F.2d 803, 804 (9th Cir. 20 1970).
- NEXA Mortg., LLC v. Diaz, No. 3:24-cv-00061 (S.D. Cal. May 16, 2024).(affirming “[t]hat a court 12 has power to dismiss an action for want of prosecution on its own motion, both under 13 Rule 41 (b), Fed. R. Civ. P., or under its local rule, or even in the absence of such rules, 14 is set…)
- (PC) Benson v. Dowbak, No. 2:21-cv-01650 (E.D. Cal. Aug. 10, 2022).Co. v. Philippine Air Lines, 426 F.2d 803, 804 (9th 22 Cir. 1970)).
- (PC) Townsend v. Ruiz, No. 2:20-cv-01179 (E.D. Cal. June 2, 2022).Co. v. Philippine Air 3 || Lines, 426 F.2d 803, 804 (9th Cir. 1970)). 4 Finally, less drastic sanctions are unavailable.
- Mascorro v. The City of San Diego, No. 3:21-cv-01725 (S.D. Cal. Mar. 8, 2022).(affirming “[t]hat a court has power 19 to dismiss an action for want of prosecution on its own motion, both under Rule 41 (b), F. 20 R. Civ. P., or under its local rule, or even in the absence of such rules, is settled…)
- Mascorro v. The City of San Diego, No. 3:21-cv-01427 (S.D. Cal. Mar. 8, 2022).(affirming “[t]hat a court has 8 power to dismiss an action for want of prosecution on its own motion, both under Rule 41 9 (b), F. R. Civ. P., or under its local rule, or even in the absence of such rules, is settled in…)
- Novalk, LLC v. Sedgwick, No. 3:21-cv-00973 (S.D. Cal. Sept. 9, 2021). (affirming “[t]hat □ 25 court has power to dismiss an action for want of prosecution on its own motion, both unde Rule 41 (b), Fed. R. Civ. P., or under its local rule, or even in the absence of such rules, 1 settled in…)
- (PC) Barker v. California Health Care Facility, No. 2:19-cv-02602 (E.D. Cal. Dec. 30, 2020).Co. v. Philippine Air 2 Lines, 426 F.2d 803, 804 (9th Cir. 1970)).
- Langer v. US Green Energy Tech., Inc., No. 3:20-cv-01717 (S.D. Cal. Dec. 14, 2020).(affirming “[t]hat a court has power 13 to dismiss an action for want of prosecution on its own motion, both under Rule 41(b), Fed. 14 R. Civ. P., or under its local rule)
Show 19 more citing cases
- (PC) Sneed v. Kernan, No. 2:17-cv-02071 (E.D. Cal. Dec. 12, 2019).Co. v. Philippine Air Lines, 426 F.2d 803, 804 (9th 24 Cir. 1970)).
- Byron Charles Walker v. City of Lompoc Brice Griffith Peggy Davis, Byron Charles Walker v. City of Lompoc Brice Griffith, Individually & in His Capacity as a Lompoc Police Officer Peggy Davis H.R. Morgan, Individually & in His Off. Capacity as an Emp. of the City of Lompoc, 42 F.3d 1404 (9th Cir. 1994).unpublishedIt cites Alexander v. Pacific Maritime Ass'n, 434 F.2d 281 , 283 (9th Cir.1970), cert. denied, 401 U.S. 1009 (1971), for the proposition that "[u]nreasonable delay creates a presumption of injury to [the defendants'] defenses." See also St…
- Est. of Verkamp v. KDI Corp. (In Re KDI Corp.), 119 B.R. 594 (Bankr. S.D. Ohio 1990).publishedAnderson [v. Air West], supra [ 542 F.2d 522 ], at 524 [9th Cir.1976]; States Steamship Co. v. Philippine Air Lines, 426 F.2d 803, 804 (9th Cir.1970).
- United States v. 2.61 Acres of Land, 791 F.2d 666 (9th Cir. 1985).published Ungar, 376 U.S. at 589 , 84 S.Ct. at 849 ; Ruiz v. Hamburg-American Line, 478 F.2d 29, 31 (9th Cir.1973) (quoting States Steamship Co. v. Philippine Airlines, 426 F.2d 803, 804 (9th Cir.1970) ).RELEVANT FACTORS 18 Recently, we had the oppo…
- Henderson v. Duncan, 779 F.2d 1421 (9th Cir. 1986).published States Steamship Co. v. Philippine Air Lines, 426 F.2d 803, 804 (9th Cir.1970).
- Pedro Alma v. Mfrs. Hanover Trust Co., as Tr. for Tanker Charter Corp. & Mar. Overseas Corp., 684 F.2d 622 (9th Cir. 1982).publishedRuiz v. Hamburg-American Line, 478 F.2d at 31 , quoting States Steamship Co. v. Philippine Airlines, 426 F.2d 803, 804 (9th Cir. 1970).
- Virgin Islands Water & Power Auth. v. Virgin Islands Tel. Corp., 18 V.I. 451 (D.V.I. 1981).publishedCo. v. Philippine Air Lines, 426 F.2d 803, 804 (9th Cir. 1970); quoted in Wright and Miller, Federal Practice and Procedure: Civil § 2376.
- Pue v. Sillas, 632 F.2d 74 (9th Cir. 1980).published Co. v. Philippine Air Lines, 426 F.2d 803, 804 (9th Cir. 1970) and In re Josephson, 218 F.2d 174, 182 (1st Cir. 1954)).
- Fed. Sec. L. Rep. P 97,198 Roy Huey v. Teledyne, Inc., 608 F.2d 1234 (9th Cir. 1979).publishedCo. v. Philippine Air Lines, 426 F.2d 803, 804 (9th Cir. 1970).
- Thomas W. Moore v. Telfon Commc'ns Corp., Thomas W. Moore, Counterclaimant-Appellant v. Telfon Commc'ns Corp. & Bear, Stearns & Co., Counterdefendants, & Broad, Khourie & Schulz, a Prof'l Corp., Thomas W. Moore, Counterclaimant-Appellant Cross-Complainant-Appellant v. Transamerica Ins. Co., Great Am. Ins. Co. & Maryland Cas. Co., Cross-Defendants-Appellees, 589 F.2d 959 (9th Cir. 1978).publishedAnderson, supra at 524 ; States Steamship Co. v. Philippine Air Lines, 426 F.2d 803, 804 (9th Cir. 1970).
- Moore v. Telfon Commc'ns Corp., 589 F.2d 959 (9th Cir. 1978).publishedAnderson, supra at 524 ; States Steamship Co. v. Philippine Air Lines, 426 F.2d 803, 804 (9th Cir. 1970).
- Patricia Scott Anderson v. Air West, Inc., 542 F.2d 522 (9th Cir. 1976).publishedStates Steamship Co. v. Philippine Air Lines, supra at 804.
- Homer Bush v. The United States Postal Serv., 496 F.2d 42 (4th Cir. 1974).published States Steamship Co. v. Philippine Air Lines, 426 F.2d 803, 804 (9 Cir. 1970).
- Paris Reizakis v. Albert E. Loy, 490 F.2d 1132 (4th Cir. 1974).published The facts here are readily distinguishable from the facts in those decisions.' 20 The court, in States Steamship Company v. Philippine Air Lines, 426 F.2d 803, 804 (9 Cir. 1970), had this to say: 21 'Whether the judge misused or abused his…
- Robert Ruiz v. Hamburg-Am. Line, a Corp., Defendant-Third-Party v. Jones Stevedoring Co., Third-Party, 478 F.2d 29 (3d Cir. 1973).published In States Steamship Co. v. Philippine Airlines, 426 F.2d 803, 804 (9th Cir. 1970), we said: “Whether the judge misused or abused his discretion, of necessity, depends upon the facts of each case.
- Helen M. Bautista, on Her Own Behalf & on Behalf of All Filipinos Similarly Situated v. Concentrated Emp. Prog. of the Dep't of Labor, 459 F.2d 1019 (9th Cir. 1972).published“committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors”
- Novalk, LLC v. Kinsale Ins., No. 3:21-cv-01014 (S.D. Cal. Sept. 10, 2021).(affirming “[t]hat a court has power to dismiss an action for want of prosecution on 3 its own motion, both under Rule 41 (b), F.R. Civ. P., or under its local rule, or even in the 4 absence of such rules, is settled in…)
- Novalk, LLC v. Sedgwick, No. 3:21-cv-00973 (S.D. Cal. May 28, 2021).(affirming “[t]hat a court has power to dismiss 25 an action for want of prosecution on its own motion, both under Rule 41 (b), Fed. R. Civ. P., or under its local rule, or even in the absence of such rules, is settled i…)
- Sewell v. Wilson, 641 P.2d 1070 (N.M. Ct. App. 1982).published
At page 805 riving at his decision, he weighed all of the relevant factors, including: (1) the appellant's right to a hearing on its claim, (2) the impairment of…2 citing cases
- Becky v. Norwest Bank Dillon, N.A., 798 P.2d 1011 (Mont. 1990).published In Shackelton, 207 Mont. at 102 , 672 P.2d at 1115 , we adopted the following factors from State Steamship Co. v. Philippine Air Lines, 426 F.2d 803, 805 (9th Cir.1970), to be used in considering whether the district court abused its discr…
- Ace Novelty Co., Inc. v. Gooding Amusement Co., Inc., 664 F.2d 761 (9th Cir. 1981).publishedThe trial court must consider several factors, including the plaintiff’s diligence, States Steamship Co. v. Philippine Air Lines, 426 F.2d 803, 805 (9th Cir. 1970), “the court’s need to manage its docket, the public interest in expeditious…
At page 803 KILKENNY, Circuit Judge. Presented for review is the single issue of whether the district judge abused his discretion in dismissing the complaint for lack of…1 citing case
- Kerwin v. Remittance Assistance Corp., 559 F. Supp. 2d 1117 (D. Nev. 2008).publishedCo. v. Philippine Air Lines, 426 F.2d 803, 803 (9th Cir.1970).
v.
PHILIPPINE AIR LINES, a Corporation, and Qantas Airways, a Corporation, Appellees
Presented for review is the single issue of whether the district judge abused his discretion in dismissing the complaint for lack of prosecution.
The complaint was filed on November 14, 1966, and was served on appellees November 30th. Philippine filed its answer on March 1, 1967, and Qantas answered on March 6th. Philippine served requests for admissions on March 17th, the responses to which were filed on April 20th. Qantas, on April 19th, served separate requests for admissions, to which responses were filed on May 26th. Qantas, on April 19th, served a group of interrogatories on appellant. On March 28, 1968, the court, sua sponte, entered an order to show cause why the action sould not be dismissed for lack of prosecution, or otherwise disposed of[*804] in conformity with Rule 11 [1] of the court’s local rules of practice. Seemingly, the order to show cause did not overly excite the appellant. It remained inactive until May 24, 1968, on which date it served interrogatories on Philippine. It did not respond to Qantas’ interrogatories until May 27th, over thirteen months after they had been served. The following day, appellant, in attempted compliance with Rule 11, filed a certificate of counsel. The document outlined a brief history of the litigation, but gave no excuse for the delay other than that pre-trial discovery was still in progress and that counsel were unfamiliar with the degree of activity required of them in the prosecution of the case.
The judge, after a hearing on June 6, 1968, dismissed the action. On June 11th, appellant filed a motion to vacate the order of dismissal. To the motion was attached a certificate of counsel which set forth in full detail the prelitigation history of appellant’s claim against appellees. The certificate acknowledged the lack of activity as reflected by the record and then set forth discovery proceedings which were planned for the future. On June 25th, the judge considered the facts disclosed by the motion and certificate and denied the motion to vacate. Later, on July 2nd, appellant filed its second motion to vacate and attached to the motion another certificate of counsel. Again, the judge considered the material set forth in the motion and certificate and on July 19, 1968, again denied the motion to vacate. This appeal is prosecuted from the order of dismissal. We affirm.
That a court has power to dismiss an action for want of prosecution on its own motion, both under Rule 41 (b), F.R.Civ.P., or under its local rule, or even in the absence of such rules, is settled in this circuit. Pearson v. Dennison, 358 F.2d 24, 28 (9th Cir. 1965); Hicks v. Bekins Moving & Storage Co., 115 F.2d 406, 408-409 (9th Cir. 1940). Also in point is Link v. Wabash Ry. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). The exercise of the power to dismiss is discretionary and will be reversed only for an abuse. Fitzsimmons v. Gilpin, 368 F.2d 561 (9th Cir. 1966). To justify the dismissal, it was not necessary for the court to find that there was a specific impairment of appellees’ defenses, because the law presumes injury from unreasonable delay. Pearson v. Dennison, supra, 353 F.2d p. 28.
Whether the judge misused or abused his discretion, of necessity, depends upon the facts of each case. This court has never attempted to fix guidelines, although a good rule of thumb might be to follow Judge Magruder’s oft-quoted phrase in In Re Josephson, 218 F.2d 174, 182 (1st Cir. 1954), that the exercise of discretion of the trial judge should not be disturbed unless there is “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.” Here, the record discloses that the judge below carefully considered the appellant’s contentions on three separate and distinct occasions. No doubt, in ar[*805] riving at his decision, he weighed all of the relevant factors, including: (1) the appellant's right to a hearing on its claim, (2) the impairment of appellees’ defenses presumed from the unreasonable delay, (3) the wholesome policy of the law in favor of the prompt disposition of law suits, and (4) the duty of the appellant to proceed with due diligence.
Flaksa v. Little River Marine Construction Co., 389 F.2d 885 (5th Cir. 1968), cert. denied 392 U.S. 928, 88 S.Ct. 2287, 20 L.Ed.2d 1387, on which appel lant relies, is readily distinguishable. There, the complaint was less than a year old when it was dismissed. Other cases cited by appellant have received our attention. It is sufficient to say that they are based on records bearing little resemblance to the one before us. On the record before us, we cannot say that the judge below abused his discretion.
Affirmed.
. Rule 11 provides:
Quarterly, the Calendar Judge shall call a convenient number of cases from the General Civil File wherein no Memorandum to Set has been filed, being the oldest cases in chronological order according to the filing date thereof, upon an order to show cause, by affidavit or certificate of counsel filed with the Calendar Judge, why such cases should not be dismissed for lack of prosecution.
The Calendar Judge may (1) dismiss such cases for lack of prosecution;
(2) remand them to their chronological place on the General Civil File (subject to further call on the next quarterly calling of that File) ; or, (3) if the facts warrant, order a day certain for the filing of a Memorandum to Set under Rule 2, whereupon the case shall be re-calendared automatically before the Calendar Judge for dismissal or transfer to the Civil Active Calendar. Rules of Practice, United States District Court, Northern District of California, effective July 16, 1962.