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

> Court of Appeals for the Ninth Circuit · May 23, 2002 · 291 F.3d 639

URL: https://www.frixlaw.com/law-library/cases/9495051

## Case

- **Full name:** David P. PAGTALUNAN, Petitioner-Appellant, v. George GALAZA, Warden; Thomas Maddock, Acting Director, California Department of Corrections, Respondents-Appellees
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** May 23, 2002
- **Citations:** 291 F.3d 639; 2002 Daily Journal DAR 5747; 2002 Cal. Daily Op. Serv. 4451; 2002 U.S. App. LEXIS 9750; 2002 WL 1033735
- **Precedential status:** Published
- **Opinion:** Dissent by Schroeder
- **Judges:** Schroeder, Trott, Rawlinson
- **Cited by:** 4,063 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9495051

## How later opinions describe it (automated extraction)

- holding that district court did not abuse its discretion when dismissing defendant’s 28 U.S.C. § 2254 petition with prejudice because defendant failed to comply with the court’s order giving him leave to amend his petition by submitting it on the court’s approved form and nami…
- holding the district court did not abuse its discretion in 15 dismissing an action for failure to prosecute and failure to comply with a court order when the 16 district court found that plaintiff’s objections to findings and recommendations “offered no 17 reasonable excuse” f…
- finding that 12 defendants were prejudiced by plaintiff’s failure to comply with court order to submit pleadings 13 within designated time period because “[u]nnecessary delay inherently increases the risk that 14 witnesses’ memories will fade and evidence will become stale”
- finding this factor weighed in favor of dismissal where plaintiff offered “no clear 17 explanations” and noting “[u]nnecessary delay inherently increases the risk that witnesses’ 18 memories will fade and evidence will become stale.”
- explaining that “[l]imited delays and the prejudice to a defendant from the pendency of a lawsuit are realities of the system that have to be accepted, provided the prejudice is not compounded by unreasonable delays”

## Opinion text

SCHROEDER, Chief Judge,
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 court did not exercise its discretion within appropriate limits because it failed to consider the relevant factors in imposing dismissal as a sanction. Of course, our courts are very busy. The irony is that this case has now been before a half dozen Article III Judges and languished in the federal courts for nearly four years without anyone taking a peek at its merits. We have already reversed and remanded once before. Pagtalunan v. Galaza, 229 F.3d 1158 (9th Cir.2000) (unpublished). Little of this lost time and energy would have been necessary had the district court followed, in the first instance, our long line of circuit authority insisting that the district court weigh all the relevant factors before deciding to dismiss a plaintiffs case. See, e.g., Yourish, 191 F.3d at 990 ; Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir.1998); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir.1992); Thompson v. Housing Authority, 782 F.2d 829, 831 (9th Cir.1986); Henderson v. Duncan, 779 F.2d 1421, 1423-24 (9th Cir.1986); Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir.1984); Mir, 706 F.2d at 918 .
I therefore respectfully dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9495051. Public record. Not legal advice.