Barnes

MEMORANDUM **

Danny Barnes appeals pro se from the district court’s judgment dismissing his employment discrimination action pursuant to Federal Rule of Civil Procedure 37(b)(2) for failure to attend a pretrial conference. We have jurisdiction pursuant to 28 U.S.C. § 1291 . Reviewing for abuse of discretion, United States ex rel. Wiltec Guam, Inc. v. Kahaluu Constr. Co., Inc., 857 F.2d 600, 603 (9th Cir.1988), we reverse, and remand for further proceedings.

A district court must consider the following five factors in determining whether to dismiss a case as a punitive measure: “(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 disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Id. (quoting Malone v. United States Postal Service, 833 F.2d 128, 130 (9th Cir.1987)). If the district court does not make explicit findings regarding these factors, this court reviews the record independently to determine whether the sanction was an abuse of discretion. Id.

Here, the harsh penalty of dismissal was not warranted.…