NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 9 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

NICK KOUDIS, No. 19-56016

Plaintiff-Appellant, D.C. No. 2:19-cv-04080-R-GJS v.

REAL ESTATE HEAVEN MEMORANDUM*

INTERNATIONAL, INC., DBA The College of Real Estate,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding

Submitted June 5, 2020** Anchorage, Alaska

Before: CHRISTEN, WATFORD, and BADE, Circuit Judges.

Nick Koudis appeals the dismissal of this copyright infringement action for

failure to prosecute. We have jurisdiction under 28 U.S.C. § 1291, we review for

an abuse of discretion, In re Eisen, 31 F.3d 1447, 1451 (9th Cir. 1994), and we

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). vacate and remand.

“We require the district court to weigh five factors to determine whether to

dismiss a case for lack of prosecution: (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 the disposition of cases

on their merits; and (5) the availability of less drastic sanctions.” Id. When, as

here, the district court does not make explicit findings, “we may review the record

independently to determine if the district court has abused its discretion.” Yourish

v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (quoting Ferdik v. Bonzelet,

963 F.2d 1258, 1261 (9th Cir. 1992) (as amended)). “Because ‘[d]ismissal is a

harsh penalty,’ . . . it is appropriate ‘only in extreme circumstances’ of

‘unreasonable delay.’” Hernandez v. City of El Monte, 138 F.3d 393, 400 (9th Cir.

1998) (first alteration in original) (quoting Henderson v. Duncan, 779 F.2d 1421,

1423 (9th Cir. 1986)).

Here, the third, fourth, and fifth factors weigh strongly against dismissal.

Koudis diligently prosecuted this action, his single request for an extension of time

was reasonable and nonprejudicial, and the district court dismissed the case only

eighty-one days after it was filed and just thirty-six days after entry of default. The

harsh penalty of dismissal was therefore unwarranted. We also have no indication

from the record that the district court considered less drastic alternatives, as our

2 case law requires. See In re Phenylpropanolamine (PPA) Prod. Liab. Litig., 460

F.3d 1217, 1228-29 (9th Cir. 2006).

VACATED AND REMANDED.

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