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 Pagtalunan v. Galaza, 229 F.3d 1158 (9th Cir.2000) (unpublished).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.