NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 24 2011
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
FIRST MAGNUS FINANCIAL No. 09-17845
CORPORATION,
D.C. No. 2:07-cv-00132
Plaintiff - Appellant,
v. MEMORANDUM *
TYSON RONDEAU, et al.,
Defendants - Appellees.
Appeal from the United States District Court
for Nevada, Las Vegas
James C. Mahan, District Judge, Presiding
Argued and Submitted May 10, 2011
San Francisco, California
Before: GOULD and M. SMITH, Circuit Judges, and MARBLEY, District Judge.**
Because the parties are familiar with the factual and procedural history of
this case, we do not recount additional facts except as necessary to explain the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.
decision. We have jurisdiction under 28 U.S.C. § 1291. We remand to the district
court to conduct a Henderson factor-based analysis to determine whether the
Appellant’s case should be dismissed pursuant to Rule 41(b). See Henderson v.
Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986).
By not applying the Henderson factors, the district court abused its
discretion in granting the Appellees’ motion to dismiss the Appellant’s complaint
pursuant to Rule 41(b). Because the Appellant in this case was managing parallel
bankruptcy proceedings in Arizona, some delay in filing a Second Amended
Complaint is reasonable. Further, the district court did not include a date by which
it expected the Second Amended Complaint to be filed when it granted the
Appellant leave to amend. With these considerations in mind, the district court
should have properly weighed all of the Henderson factors before exercising its
discretion to dismiss the Appellant’s action. These factors include: “(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 disposition of cases on their merits; and (5) the availability of less drastic
sanctions.” Henderson, 779 F.2d at 1423. Upon remand, therefore, the district
court should analyze whether the five Henderson factors weigh in favor of
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dismissal when deciding whether to grant the Appellees’ motion to dismiss brought
pursuant to Rule 41(b).
REVERSED AND REMANDED.
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