FILED
NOT FOR PUBLICATION DEC 31 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEVIN HAYES, No. 12-35240
Plaintiff - Appellant, D.C. No. 3:09-cv-00047-HA
v.
MEMORANDUM*
WAL-MART STORES, INC., DBA Wal-
Mart D.C. # 6037, AKA Wal-Mart Stores
East L.P.,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Ancer L. Haggerty, District Judge, Presiding
Submitted December 17, 2013**
Before: GOODWIN, WALLACE, and GRABER, Circuit Judges.
Kevin Hayes appeals pro se from the district court’s judgment dismissing his
employment action. We have jurisdiction under 28 U.S.C. § 1291. We review for
an abuse of discretion a dismissal for failure to prosecute, Al-Torki v. Kaempen, 78
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
F.3d 1381, 1384 (9th Cir. 1996), and we affirm.
The district court did not abuse its discretion by dismissing Hayes’s action
with prejudice for failure to prosecute in light of Hayes’s unreadiness for trial after
the court previously granted Hayes three continuances and warned him that his
action would be dismissed with prejudice if he was not ready to go to trial. See id.
at 1384-85 (discussing factors to guide the court’s decision whether to dismiss for
failure to prosecute, and noting that if a trial does not proceed, it likely interferes
with the court’s docket and prejudices an adversary).
The district court did not abuse its discretion by denying Hayes’s motion to
vacate the judgment because Hayes failed to establish grounds for such relief. See
Sch. Dist. No. 1J, Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63
(9th Cir. 1993) (setting forth standard of review and factors for reconsideration
under Fed. R. Civ. P. 59(e) and 60(b)).
Because we affirm the district court’s dismissal for failure to prosecute, we
do not consider Hayes’s challenges to the district court’s interlocutory orders. See
Al-Torki, 78 F.3d at 1386 (after dismissal for failure to prosecute, interlocutory
orders are not appealable regardless of whether the failure to prosecute was
purposeful).
We reject Hayes’s contentions that the district judge was biased and that
2 12-35240
Hayes received inadequate assistance from his former pro bono counsel. See
Taylor v. Regents of Univ. of Cal., 993 F.2d 710, 712 (9th Cir. 1993) (per curiam)
(adverse rulings alone are insufficient to demonstrate bias); Nicholson v. Rushen,
767 F.2d 1426, 1427 (9th Cir. 1985) (per curiam) (plaintiffs in civil cases generally
have no right to effective assistance of counsel).
Hayes’s motions for reconsideration of this court’s order allowing defendant
one additional day to file its answering brief and for affirmative relief, filed on
October 11, 2013, are denied.
Hayes’s motion for reconsideration of this court’s order referring his
motions to the merits panel, filed on November 6, 2013, is denied.
Hayes’s motion to address and correct information, filed on November 6,
2013, is granted.
AFFIRMED.
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