Columbia Falls Aluminum Co. v. Wausau Underwriters Insurance

concurring.

TEILBORG, District Judge.

I agree with the majority that the case should be remanded for further consideration. In applying the third prong of the Henderson test, which is risk of prejudice to the defendant, the district court considered the entire period of time that had elapsed since the underlying facts giving rise to the case. See Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir.1986). I agree with the majority that this was error and that in considering potential prejudice to the defendants, the court should only consider the period of the unreasonable delay. (Conversely, the district court may consider the entire length of the case in considering the burden the case has been on the court’s docket. Id. at 1424 .)

Nonetheless, I agree with the district court that a period of unreasonable delay *287 occurred from when the underlying case settled until the court set a hearing on the matter, a period of 22 months. Under Henderson , this unreasonable delay entitles the defendants to a presumption of prejudice. I believe the district court properly gave the defendants the benefit of the presumption. However, the plaintiffs should have had the opportunity to rebut…

MEMORANDUM **

Columbia Falls Aluminum Company, Brack Duker, and Jerome Broussard (collectively “CFAC”) appeal the district court’s dismissal with prejudice for failure to prosecute their insurance coverage action for failure to indemnify and defend. On appeal, CFAC argues the district court erred: (1) in finding that there had been unreasonable delay; (2) in concluding that dismissal with prejudice was appropriate; (3) in not permitting discovery to allow CFAC to demonstrate lack of prejudice; and (4) in dismissing prior to the preliminary pretrial conference. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we reverse and remand. As the parties are familiar with the factual and procedural history of this case, we need not recite it in full here.

We address first CFAC’s argument that the district court erred in dismissing the case with prejudice for failure to prosecute, as resolution of this issue makes it unnecessary to reach the other issues raised. A dismissal pursuant to Rule 41(b) is reviewed for abuse of discretion. AL- *286 Torki v. Kaempen, 78 F.3d 1381 , 1384 (9th Cir.1996).

The district court concluded that dismissal was appropriate based on two of the five…