NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 30 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

EDITH MENBRENO; LUIS SORIANO, Nos. 18-55239, 18-55315

Plaintiffs-Appellants/Cross-Appellees, D.C. No. 2:16-cv-00687-MRW

v.

MEMORANDUM*

JONATHAN STRINGER,

Defendant-Appellee/Cross-Appellant.

Appeal from the United States District Court for the Central District of California Michael R. Wilner, Magistrate Judge, Presiding

Argued and Submitted August 16, 2019 Pasadena, California

Before: SCHROEDER and R. NELSON, Circuit Judges, and LEFKOW,** District Judge.

Edith Menbreno and Luis Soriano appeal from the district court’s final

judgment dismissing their case for failure to prosecute. We have jurisdiction under

28 U.S.C. § 1291, and we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Joan H. Lefkow, United States District Judge for the Northern District of Illinois, sitting by designation. Menbreno and Soriano, citizens and residents of El Salvador, sued Officer

Stringer for fatally shooting their son. Because of logistical difficulties and to spare

them the discomfort of discussing their son’s death unless necessary, the parties

stipulated in September 2017 to deferring the plaintiffs’ depositions in Los Angeles

until after the district court ruled on Stringer’s motion for summary judgment.

Unbeknownst to Stringer, however, Menbreno was denied a visa to travel to the

United States, and there is no evidence in the record that Soriano ever applied for

one.

The district court denied summary judgment, and Stringer tried to schedule

the plaintiffs’ depositions. Plaintiffs’ counsel then told Stringer’s counsel for the

first time, about three weeks before trial, that the plaintiffs could not travel to the

United States. Plaintiffs did not notify the court until the final pretrial conference,

ten days before trial. The court granted plaintiffs’ motion for leave to testify

remotely, finding that they had “(barely) shown good cause and compelling

circumstances due to immigration complications.” The court warned that if counsel

could not “secure the appearance of either or both of the parents for deposition and

trial testimony, the parties must be prepared to explain whether trial can proceed.”

Neither plaintiff was deposed. At the appointed hour for the plaintiffs’

remote testimony, Soriano did not appear, and Menbreno’s video feed could not

connect to the courthouse. After over twenty minutes of futile attempts to connect

2 18-55239 the feed, the court excluded the plaintiffs’ testimony and granted Stringer’s motion

to dismiss the action for the plaintiffs’ failure to prosecute.

We review a dismissal for failure to prosecute for an abuse of discretion. Al-

Torki v. Kaempen, 78 F.3d 1381, 1384 (9th Cir. 1996). “The district 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 conclusion it reached upon

a weighing of relevant factors.’” Pagtalunan v. Galaza, 291 F.3d 639, 640–41 (9th

Cir. 2002) (quoting Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992)). We

consider five factors in review of dismissals for failure to prosecute: “(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.” Pagtalunan, 291 F.3d at 642 (citing Ferdik,

963 F.2d at 1260–61). This court “may affirm a dismissal where at least four

factors support dismissal, or where at least three factors ‘strongly’ support

dismissal.” Yourish v. Calif. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (quoting

Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998)).

The district court expressly considered the required five factors, and we find

no abuse of discretion. The public interest in expeditious resolution and the court’s

docket management favored dismissal. Yourish, 191 F.3d at 990; In re Eisen, 31

3 18-55239 F.3d 1447, 1452 (9th Cir. 1994).

Stringer was prejudiced. He deferred and eventually lost the chance to

depose his opponents, relying on their promise to be present for depositions in the

United States after the close of discovery. He was then put to the burden and

expense of a trial for which the plaintiffs were not prepared to proceed. “Whether

prejudice is sufficient to support an order of dismissal is in part judged with

reference to the strength of the plaintiff’s excuse for the default.” Malone v. U.S.

Postal Serv., 833 F.2d 128, 131 (9th Cir. 1987) (citing Nealey v. Transportacion

Maritima Mexicana, S.A., 662 F.2d 1275, 1280 (9th Cir. 1980)). Soriano had no

excuse; he made no attempt to be present. Menbreno’s excuse was better but not so

strong that this factor flips in her favor. Although she at least applied for a visa and

attempted to testify, her counsel’s tardy disclosure forced her to rely on foreseeably

unreliable technology without a contingency plan. The district court gave her

ample opportunity to proceed but she could not. That the last of several failures

was not her fault does not alleviate the prejudice to Stringer.

Nor were lesser alternatives available. Plaintiffs argue that the court should

have permitted them to testify by audio only. The court found that audio-only

testimony would lack adequate safeguards. The parties and court staff had

repeatedly told the court that they had difficulty connecting to El Salvador. What

audio the court heard from the attempted video link contained audible feedback

4 18-55239 and cut in and out. Because plaintiffs’ proposed alternative was not viable, the

fourth factor weighed in favor of dismissal.

Finally, the public policy in favor of disposing cases on the merits ordinarily

weighs against dismissal. Yourish, 191 F.3d at 992. But it was not clear that the

case could have been resolved on the merits with two absentee plaintiffs claiming

to succeed to the rights of a decedent but unable to testify to their relationship to

him. This factor weighed at most slightly against dismissal.

Because four factors weighed in favor of dismissal and one only slightly

against, we affirm. Id. at 990. Having affirmed the dismissal for failure to

prosecute, we need not address the remaining issues on appeal and cross-appeal.

See Al-Torki, 78 F.3d at 1385–86 (holding interlocutory issues not reviewable

where this court affirms dismissal for failure to prosecute).

AFFIRMED.

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