David P. Pagtalunan v. George Galaza, Warden Thomas Maddock, Acting Director, California Department of Corrections

291 F.3d 639 David P. PAGTALUNAN, Petitioner-Appellant, v. George GALAZA, Warden; Thomas Maddock, Acting Director, California Department of Corrections, Respondents-Appellees. No. 00-56697. United States Court of Appeals, Ninth Circuit. Argued and Submitted November 9, 2001. Filed May 23, 2002. Verna Wefald, Pasadena, CA, for the petitioner-appellant. Ana R. Duarte, Deputy Attorney General, Los Angeles, CA, for the respondents-appellees. Appeal from the United States District Court for the Central District of California; Ronald S.W. Lew, District Judge, Presiding. D.C. No. CV-98-10445-RSW. Before SCHROEDER, Chief Judge, TROTT and RAWLINSON, Circuit Judges. OPINION RAWLINSON, Circuit Judge. 1 Petitioner, David Pagtalunan ("Pagtalunan") appeals from the district court's second dismissal with prejudice of his habeas corpus petition. Pagtalunan asserts that the court abused its discretion on remand when it found that his objections to the magistrate judge's Report and Recommendation offered no reasonable excuse for Pagtalunan's delay. Based on its finding of inexcusable delay, the court dismissed Pagtalunan's petition for failure to prosecute and for failure to comply with a court…

Petitioner, David Pagtalunan (“Pagtalu-nan”) appeals from the district court’s second dismissal with prejudice of his habeas corpus petition. Pagtalunan asserts that the court abused its discretion on remand when it found that his objections to the magistrate judge’s Report and Recommendation offered no reasonable excuse for Pagtalunan’s delay. Based on its finding of inexcusable delay, the court dismissed Pagtalunan’s petition for failure to prosecute and for failure to comply with a court order. After balancing the relevant factors, we hold that the'district court did not abuse its discretion when it dismissed Pag-talunan’s habeas petition with prejudice.

STANDARD OF REVIEW

We review for an abuse of discretion a district court’s dismissal for failure to comply with an order requiring submission of pleadings within a designated time. Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.1992). The trial 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 *641 conclusion it reached upon a weighing of the relevant factors.” Id. (citations omitted). If the magistrate judge did not…

Concurring:

I write separately only to assure our Chief Judge that we in the majority are not “preoccupied” with the standard of *644 review that governs the outcome of this appeal. Additionally, we have not “lost sight” of anything, much less our responsibility as judges. We simply see this case differently at a time when the need of the district court in the Central District of California to manage its huge caseload has never been greater. With as many as six vacancies gone unattended by the political branches of our government for far too long, our trial courts do not have time to waste on multiple failures by aspiring litigants to follow the rales and requirements of our courts. Here, Pagtalunan is responsible for inexcusable delay, failure to comply with a court order, and failure to prosecute. In my view, the weight of the docket-managing factor depends upon the size and load of the docket, and those in the best position to know what that is are our beleaguered trial judges. That factor weighs heavily in this case. Accordingly, and with all respect to our esteemed Chief Judge, I cannot conclude that the district court abused its discretion; and I concur in Judge Rawlinson’s…

Dissenting:

There are times when our preoccupation with a standard of review, abuse of discretion, causes us to lose sight of our responsibility to ensure that the district courts exercise discretion within the proper limits. As the majority recognizes, the dis-positive factors to be considered in determining whether to dismiss a plaintiffs case as a sanction for violating a court-imposed deadline are usually prejudice and the availability of less drastic alternatives. See Yourish v. California Amplifier, 191 F.3d 983, 991-92 (9th Cir.1999).

Prejudice means prejudice to the defendant, Mir v. Fosburg, 706 F.2d 916, 918 (9th Cir.1983), and since this defendant has not yet been served, it is difficult to see how the plaintiffs delay in this case could have prejudiced this defendant. The district court did not even discuss prejudice or the absence of it. In my view, the district court erred in this regard. The majority’s discussion of prejudice does not consider the effect of the delay on the defendant. The majority does recognize that the district court erred (additionally, in my view) in not considering less drastic alternatives to dismissal.

I thus conclude that the district…