Russell Regalado v. County of Riverside, a municipality;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RUSSELL REGALADO,
Plaintiff-Appellant,
v.
COUNTY OF RIVERSIDE, a
municipality; et al.,
Defendants-Appellees.
No. 22-55235
D.C. No.
5:20-cv-01578-JGB-KK
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Jesus G. Bernal, District Judge, Presiding
Submitted December 5, 2022**
Pasadena, California
Before: KELLY,*** IKUTA, and CHRISTEN, Circuit Judges.
FILED
DEC 8 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).
*** The Honorable Paul J. Kelly, Jr., United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.

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Russell Regalado appeals the district court’s sua sponte dismissal of his federal
civil rights action for failure to comply with the court’s order to serve certain Doe
defendants (Service Order). We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
Because the parties are familiar with the facts, we do not recite them here. We
review a dismissal pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for
abuse of discretion. Applied Underwriters, Inc. v. Lichtenegger, 913 F.3d 884, 890
(9th Cir. 2019). Five factors guide the district court’s discretion and our review of it:
“(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 v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986). Of these, the
fifth factor “merit[s] special focus” when a judge dismisses sua sponte. Hernandez
v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998). We have emphasized that “it
is not required that the district court make explicit findings in order to show that it has
considered these factors and 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)).
Accordingly, “the fact that the district court . . . dismissed the complaint without any
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explicit analysis of these five factors d[oes] not constitute an abuse of discretion.”
Applied Underwriters, 913 F.3d at 890 n.2.
Here, although the district court did not explicitly analyze the Henderson
factors, we conclude that the record provides ample support for the district court’s
exercise of discretion.
As to the expeditious resolution and docket management factors, the district
court reasonably found that Regalado failed to diligently prosecute his action, such
that the dismissal would serve to expeditiously resolve the litigation and promote
efficient docket management. The district court did not abuse its discretion in finding
that Regalado did not explain his failure to serve the Doe Defendants by the extended
March 4, 2021 deadline. Regalado’s primary justification for noncompliance with the
Service Order is that it “became moot the same day it was filed” because his motion
for extended time was filed before his Second Amended Complaint (SAC) and thus
applied only to his First Amended Complaint (FAC). This argument fails, because
even though technically the Service Order granted a motion that requested an
extension of time to serve the FAC, in context it is clear that the Service Order was
intended to grant an extension of time to serve the SAC, because it was issued five
days after Regalado lodged the SAC. The Service Order provides, “Plaintiff must
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complete service of the summons and complaint by March 4, 2021,” and at the time
the order issued, the SAC had been lodged.
The prejudice factor also weighs in favor of dismissal because “unreasonable
delay creates a presumption of injury to appellees’ defenses.” Alexander v. Pac. Mar.
Ass’n, 434 F.2d 281, 283 (9th Cir. 1970). Prejudice was properly presumed
and Regalado did not explain to the district court—and does not explain here—why
the presumption of prejudice is rebutted.
Although public policy favoring disposition on the merits generally weighs
against dismissal, “a case that is stalled or unreasonably delayed by a party’s failure
to comply with deadlines and discovery obligations cannot move forward toward
resolution on the merits,” and in such circumstances, this factor “‘lends little support’
to a party whose responsibility it is to move a case toward disposition on the merits
but whose conduct impedes progress in that direction.” In re Phenylpropanolamine
(PPA) Prods. Liab. Litig., 460 F.3d 1217, 1228 (9th Cir. 2006) (quoting In re Exxon
Valdez, 102 F.3d 429, 433 (9th Cir. 1996)). We observe that the record shows
numerous motions and discovery requests that were either struck as improper or
denied.
The final Henderson factor, less drastic alternatives, was plainly satisfied
because the district court specifically warned Regalado of the possibility of dismissal
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in its order to show cause, and we have repeatedly held that such warnings meet the
“less drastic” requirement. See, e.g., Conn. Gen. Life Ins. Co. v. New Images of
Beverly Hills, 482 F.3d 1091, 1096 (9th Cir. 2007).
Because the Henderson factors weigh in favor of dismissal, the district court
did not abuse its discretion by dismissing Regalado’s lawsuit.
AFFIRMED.
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