dissenting:

I dissent because the majority incorrectly interprets the California law as to the scope of Cal.Civ.Proc.Code § 583(b) (West 1976), which was superseded by Cal.Civ. Proc.Code §§ 583.310-.360 (West Supp. 1985) subsequent to the district court’s decision.

The majority reaches its result by concluding that Fed.R.Civ.P. 41(b) and section 583(b) directly conflict. Rule 41(b) is clearly discretionary regarding dismissal for failure to prosecute. The majority advises us that while the language of section 583(b) requires mandatory dismissal after five years’ failure to prosecute, California courts have interpreted this section to be discretionary. See at 915. Moreover, the majority finds that California courts have never equated section 583(b) with statutes of limitations. I disagree with these conclusions.

Under Hanna v. Plumer, 380 U.S. 460 , 85 S.Ct. 1136 , 14 L.Ed.2d 8 (1965), a federal procedural rule only preempts a state rule if the two rules directly conflict. See Walker v. Armco Steel Corp., 446 U.S. 740, 749 , 100 S.Ct. 1978, 1984 , 64 L.Ed.2d 659 (1980) (Walker); Alonzo v. ACF Property Management, Inc., 643 F.2d 578, 580 (9th Cir.1981). The question is whether the federal rule is broad enough to control; if so, Hanna’s preemption applies. See Walker, 446 U.S. at 749 -50 & n. 9, 100 S.Ct. at 1984 -85 & n. 9. Rule 41(b), permitting discretionary dismissals, certainly conflicted with former Cal.Civ.Proc.Code § 583 (a) (West 1976), which permitted discretionary dismissals only after two years from filing. There is no federal rule, however, corresponding to section 583(b). Moreover, section 583(b) did not act to limit the availability of rule 41(b) dismissals. The sole difference is that after five years, section 583(b) deprives a plaintiff of his cause of action. Thus, there is no direct conflict requiring Hanna analysis.

When there is no direct conflict, the proper analysis is to examine the importance of the policies behind the state rule. See Walker, 446 U.S. at 752-53 , 100 S.Ct. at 1986 . Here, California has expressed strong state policies supporting section 583(b), reflected by both precedent and legislative history. At the same time, there are no substantial federal interests at stake which dictate the majority’s result.

I disagree with the majority’s suggestion that section 583(b) is discretionary. The cases cited by the majority fail to support this construction of the statute. Those cases instead hold that there is a limited implied exception to the applicability of section 583(b) when it would be “impossible, impracticable or futile” for plaintiff to go to trial, despite the exercise of “reasonable diligence in prosecuting his or her case.” Moran v. Superior Court, 35 Cal.3d 229, 238 , 197 Cal.Rptr. 546, 551-52 , 673 P.2d 216, 222 (1983) (Moran). Thus, the standard is not mere “reasonable diligence,” as suggested by the majority, see at 915, but rather impossibility in conjunction with reasonable diligence. If any discretion exists, therefore, it is confined within these narrow limits. The majority’s reliance on Hocharian v. Superior Court, 28 Cal.3d 714 , 170 Cal.Rptr. 790 , 621 P.2d 829 (1981), which construed only Cal.Civ. Proc.Code § 581 (West 1976 & Supp.1985), *918 is particularly troublesome in light of the fact that Hocharian was explicitly repealed by statute. See Moran, 35 Cal.3d at 243 , 197 Cal.Rptr. at 555 , 673 P.2d at 225 (Kaus, J., concurring) (observing that the legislation repudiated Hocharian); Cal. Civ.Proc.Code § 583.240 law revision commission comment (West Supp.1985).

My analysis of the California law is bolstered by the California legislature’s recognition of the limited nature of these implied exceptions. Their codification in the new statute emphasizes — in harmony with precedent interpreting section 583(b) — that dismissal after five years is “mandatory and ... not subject to extension, excuse, or exception except as expressly provided by statute.” Cal.Civ.Proc.Code § 583.360(b) (West Supp.1985) (emphasis added). The only exceptions are if plaintiff shows that going to trial would have been “impossible, impracticable, or futile,” id. § 583.340(c), or unless the court’s jurisdiction was suspended or the trial was stayed or enjoined. Id. § 583.340(a), (b). One cannot read any discretion into this language. My analysis is also supported by the consistent statutory scheme of separating discretionary dismissals, see former section 583(a) and new sections 583.410-.420, from mandatory dismissals, see former section 583(b) and new sections 583.340-.360.

Moreover, California courts have consistently analogized section 583(b) to statutes of limitations, contrary to the majority’s conclusions. See, e.g., Crown Coach Corp. v. Superior Court, 8 Cal.3d 540, 546 , 105 Cal.Rptr. 339, 342 , 503 P.2d 1347, 1350 (1972) (“The dismissal statutes, like statutes of limitation,” provide protections for defendants.) (emphasis added); General Motors Corp. v. Superior Court, 65 Cal.2d 88, 91 , 52 Cal.Rptr. 460, 462 , 416 P.2d 492, 494 (1966) (“The purposes served by [section 583(b)] are somewhat analogous to those underlying statutes of limitation.”); Lockhart-Mummery v. Kaiser Foundation Hospitals, 103 Cal.App.3d 891, 896 , 163 Cal.Rptr. 325, 328 (1980) (treating section 583(b) as a statute of limitations).

A statute of limitations requires a plaintiff to present his claim within a reasonable period of time. This section extends that policy by further requiring a plaintiff to remain diligent in prosecuting his claim. Both limitations therefore act as qualifications on a plaintiff’s ultimate right of redress, terminating that right at different stages. In both instances, the interests of defendants are protected. Absent a showing of impracticability, a defendant has a substantive right to have an action dismissed after five years. This can hardly be labeled merely a “procedural” right. Indeed, unless section 583(b) is enforced, the policies behind statutes of limitations could be defeated by merely filing suit and then failing to prosecute for extended periods of time. Where is the protection for the defendant? California explicitly ensured it by section 583(b).

A plaintiff’s cause of action is created by state law, and must therefore be measured by that same state law, see Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 533 , 69 S.Ct. 1233, 1235 , 93 L.Ed. 1520 (1949), and “[i]t accrues and comes to an end when local law so declares.” Id. As the majority already states, “[sjtatutes of limitations, which dictate the life of state causes of action, are too intimately connected with the substance of the state-created right to be disregarded by the federal courts.” At 913 (emphasis added). Here, a plaintiff’s cause of action remains alive only for five years following its filing, absent a showing that it was impossible to bring the case to trial. Enforcement of section 583(b) would result in no major disruption in the proceedings of the federal courts. Therefore, it should be enforced.