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 2020-06

Nick Koudis v. Real Estate Heaven Int'l, Inc. ( 2020 )


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  •                            NOT FOR PUBLICATION                           FILED
UNITED STATES COURT OF APPEALS                        JUN 9 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NICK KOUDIS,                                    No.    19-56016
Plaintiff-Appellant,            D.C. No.
2:19-cv-04080-R-GJS
v.
REAL ESTATE HEAVEN                              MEMORANDUM*
INTERNATIONAL, INC., DBA The
College of Real Estate,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Submitted June 5, 2020**
Anchorage, Alaska
Before: CHRISTEN, WATFORD, and BADE, Circuit Judges.
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
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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
2
case law requires. See In re Phenylpropanolamine (PPA) Prod. Liab. Litig.,
    460 F.3d 1217
    , 1228-29 (9th Cir. 2006).
VACATED AND REMANDED.
3