holding that “only unreasonable delay will support a dismissal for lack of prosecution” and concluding the record did not support a finding of prejudice because defendant suffered no loss of evidence or memories
How later courts described this case
- holding that “only unreasonable delay will support a dismissal for lack of prosecution” and concluding the record did not support a finding of prejudice because defendant suffered no loss of evidence or memories
- holding that "the burden of production shifts to the defendant to show at least some actual prejudice" only after the plaintiff has given a non-frivolous excuse for delay
- indicating that 24 the purpose of Rule 41(b) is to further “the federal goal of ‘secur[ing] the just, speedy, and 25 inexpensive determination of every action’”
- “[Tjime for service thereof may be extended up to ninety days from the date of issue by order of the court.”
Written by the judges who cited it.
The opinion
SNEED, Circuit Judge
(concurring in the result only):
I agree that the order of dismissal should be vacated and the case remanded because the district court’s order provides no reliable clue as to how it weighed the conflicting policies set forth in Citizens Utilities Co. v. AT&T, 595 F.2d 1171, 1174 (9th Cir.), cert. denied, 444 U.S. 931 , 100 S.Ct. 273 , 62 L.Ed.2d 188 (1979). The majority opinion may be read as permitting a dismissal for failure to prosecute under Rule 41(b), F.R. Civ.P., only when the delay was unreasonable and the plaintiff has failed to rebut the defendant’s evidence of prejudice consisting either of a loss of evidence or a loss of memory by a witness. Even if other forms of prejudice will suffice, a matter left in some doubt by the majority, such an interpretation of Rule 41(b) would ignore the policies of promoting sound docket management and the public’s interest in expeditious resolution of litigation.
The majority justify disregarding these policies on the ground that upon removal to *1285 federal court diligent prosecution commenced. In their view no “federal housekeeping interest” is involved under these circumstances. I am not prepared summarily to banish these policies even under the facts of this case. The federal courts have some interest in not having brought to their door through removal claims not prosecuted vigorously before the state courts. To say, as the majority appear to do, that removal by a defendant eliminates the policies pertaining to docket management and prompt resolution of litigation not only improperly burdens the right of removal but also deprives the federal court of a portion of its power to promote those policies.
The result of disregarding these policies in this case is to enhance substantially the policy favoring disposition of cases on their merits. No one would contend that this is an unimportant policy. My concern is that it has been given undue influence by the majority. Perhaps my anxiety is misplaced and that the appearance of overemphasis has its origin in the somewhat unusual facts of this case. I should hope so. Nonetheless, it is necessary that my apprehensions be expressed.