KOUDIS v. REAL ESTATE HEAVEN INTERNATIONAL INC (2020)

MEMORANDUM **

Nick Koudis appeals the dismissal of this copyright infringement action for failure to prosecute. We have jurisdiction under 28 U.S.C. § 1291, we review for an abuse of discretion, In re Eisen, 31 F.3d 1447, 1451 (9th Cir. 1994), and we vacate and remand.

“We require the district court to weigh five factors to determine whether to dismiss a case for lack of prosecution: (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 the disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Id. When, as here, the district court does not make explicit findings, “we may review the record independently to determine if the district court has abused its discretion.” Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (quoting Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992) (as amended)). “Because ‘[d]ismissal is a harsh penalty,’ ․ it is appropriate ‘only in extreme circumstances’ of ‘unreasonable delay.’ ” Hernandez v. City of El Monte, 138 F.3d 393, 400 (9th Cir. 1998) (first alteration in original) (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)).

Here, the third, fourth, and fifth factors weigh strongly against dismissal. Koudis diligently prosecuted this action, his single request for an extension of time was reasonable and nonprejudicial, and the district court dismissed the case only eighty-one days after it was filed and just thirty-six days after entry of default. The harsh penalty of dismissal was therefore unwarranted. We also have no indication from the record that the district court considered less drastic alternatives, as our case law requires. See In re Phenylpropanolamine (PPA) Prod. Liab. Litig., 460 F.3d 1217, 1228-29 (9th Cir. 2006).

VACATED AND REMANDED.