Homer Crockett v. The Walt Disney Company , 142 F.3d 442 ( 1998 )

142 F.3d 442

1998 Copr.L.Dec. P 27,811

Homer CROCKETT, Plaintiff-Appellant,
v.
THE WALT DISNEY COMPANY, Defendant-Appellee.

No. 97-56492.
D.C. No. CV-97-03730-R.

United States Court of Appeals,
Ninth Circuit.

Submitted April 20, 1998**.
Decided April 22, 1998.

Appeal from the United States District Court for the Central District of California Manuel L. Real, District Judge, Presiding.

Before BRUNETTI, RYMER, and T.G. NELSON, Circuit Judges.

1

MEMORANDUM*

2

Homer Crockett appeals pro se the district court's dismissal of his copyright infringement action against the Walt Disney Company ("Disney") for failure to prosecute. We have jurisdiction under 28 U.S.C. § 1291. We review the Fed.R.Civ.P. 41(b) dismissal for abuse of discretion, see McKeever v. Block, 932 F.2d 795, 797 (9th Cir.1991), and we vacate and remand.

3

Disney filed a motion to dismiss Crockett's complaint pursuant to Fed.R.Civ.P. 12(b)(6) and 8(a). The district court granted the motion without prejudice, and gave Crockett ten days to amend the complaint. After Crockett failed to file an amended complaint, the district dismissed under Fed.R.Civ.P. 41(b).

4

Because the district court failed to state its reasons for the initial dismissal, we are unable to determine why the district court ordered Crockett to file an amended complaint. Based on the record, we are unable to conclude what the district court had in mind in dismissing the complaint pursuant to Fed.R.Civ.P. 12(b)(6) and 8(a). We cannot say the complaint wholly fails to state a claim for relief.

5

Therefore, we conclude that the district court abused its discretion by dismissing Crockett's complaint for failure to prosecute. See McKeever, 932 F.2d at 797 (failure to file an amended complaint is not an unreasonable failure to prosecute if district court erroneously dismissed prior complaint).

6

Accordingly, we vacate the district court's dismissal of Crockett's action, and remand for proceedings consistent with this disposition.1

7

VACATED and REMANDED.

**

The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a); 9th Cir. R. 34-4

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3

1

We reject the parties' remaining contentions because they lack merit