NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 9 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ULIVARDO AVALOS, No. 21-55656

Plaintiff-Appellant, D.C. No. 2:20-cv-06602-SHK

v.

MEMORANDUM*

KILOLO KIJAKAZI, Acting Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Shashi H. Kewalramani, Magistrate Judge, Presiding

Submitted June 7, 2022** Pasadena, California

Before: M. SMITH, BADE, and VANDYKE, Circuit Judges.

Plaintiff-Appellant Ulivardo Avalos appeals from a district court decision

dismissing his complaint “for failure to prosecute or to comply with court orders”

under Federal Rule of Civil Procedure (“FRCP”) 41(b). We have jurisdiction under

* 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). 28 U.S.C. § 1291, and we affirm the district court’s decision.

We review a district court’s decision to dismiss a case under FRCP 41(b) for

abuse of discretion. See Lal v. California, 610 F.3d 518, 523 (9th Cir. 2010).

“Abuse-of-discretion review is highly deferential to the district court.” Microsoft

Corp. v. Motorola, Inc., 696 F.3d 872, 881 (9th Cir. 2012). We reverse a district

court’s decision “only when [we are] convinced firmly that the reviewed decision

lies beyond the pale of reasonable justification under the circumstances.” Harman

v. Apfel, 211 F.3d 1172, 1175 (9th Cir. 2000).

In determining whether to dismiss a complaint under FRCP 41(b), courts 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.” Pagtalunan v. Galaza,

291 F.3d 639, 642 (9th Cir. 2002). The district court considered each factor and

determined that dismissal without prejudice was appropriate.

As to the first factor, “the public’s interest in expeditious resolution of

litigation always favors dismissal.” Yourish v. California Amplifier, 191 F.3d 983,

990 (9th Cir. 1999). As to the second factor, the delays by Avalos’s attorney—

totaling more than two months at the time of dismissal—significantly hampered

resolution of the case and imposed on the district court’s need to manage its docket.

2 And while Avalos is correct that “Ms. Leidner requested one single extension,” she

effectively granted herself a first extension of more than seven weeks by missing the

district court’s initial deadline. Moreover, the district court is “best situated to decide

when delay in a particular case interferes with docket management and the public

interest.” Id. (quoting Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984)). The

second factor also favors dismissal.

As to the third factor, “[u]nreasonable delay creates a presumption of injury

to the defense.” Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986). “In

this area we give deference to the district court because it is in the best position to

determine what period of delay can be endured before its docket becomes

unmanageable.” Id. Nothing in the record demands a conclusion contrary to that of

the district court. The fact that appellate counsel “was in the process of entering her

appearance and taking over this case” when it was dismissed is irrelevant as no one

notified the district court, and she only entered an appearance sixteen days after the

case was dismissed. The third factor favors dismissal.

The fourth factor—the availability of lesser sanctions—typically cuts against

dismissal. But here, the district court warned Avalos at least twice that failure to

comply with its deadlines would result in sanctions, including dismissal. First, the

parties were warned in the district court’s Case Management Order that if Avalos

failed to provide his portion of the joint submission “in a timely manner,” the district

3 court would “consider a full range of remedial actions for violative conduct,” which

presumably included dismissal. Then, after missing the initial deadline, the district

court granted Avalos an extension but warned that “no further extensions of time

will be granted in this matter” and “failure to timely” comply with the schedule

would “result in dismissal of this action with or without prejudice.” In short, Avalos

was “provid[ed] … with a second … chance following a procedural default,” but

then “further default[ed],” so dismissal was justified. Malone v. U.S. Postal Serv.,

833 F.2d 128, 132 n.1 (9th Cir. 1987) (citation omitted). Moreover, the district court

stopped short of imposing “the ultimate sanction of dismissal with prejudice” in

response to these failures, id. (citation omitted), instead imposing the lesser sanction

of dismissal without prejudice. The district court was not required to pursue an even

lesser sanction. At best, the fourth factor only mildly favors Avalos and does not

outweigh the other factors.

Finally, as to the fifth factor, “[a]lthough there is indeed a policy favoring

disposition on the merits, it is the responsibility of the moving party to move towards

that disposition at a reasonable pace.” Morris v. Morgan Stanley & Co., 942 F.2d

648, 652 (9th Cir. 1991). Not only did Avalos’s attorney fail to meet numerous

deadlines, but she also neglected to inform the district court that she would be unable

to do so in advance; instead, that task fell to the government. Thus, even though the

fifth factor generally favors disposition on the merits, it does so only slightly—if at

4 all—in this case.

Because most of the factors favor dismissal, and those that favor Avalos do

so only slightly, the district court did not abuse its discretion in dismissing his

complaint. See Pagtalunan, 291 F.3d at 643.

The district court is AFFIRMED.

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