                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             NOV 26 2013

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

VICTORIA MOLINA, an individual,                  No. 12-55599
AKA Vicky Molina; et al.,
                                                 D.C. No. 2:10-cv-09963-ODW-
              Plaintiffs,                        CW

  And
                                                 MEMORANDUM*
BENJAMIN ANDREZ LOMELI, an
individual,

              Plaintiff - Appellant,

  v.

COUNTY OF LOS ANGELES, a public
entity; et al.,

              Defendants - Appellees.


                    Appeal from the United States District Court
                        for the Central District of California
                    Otis D. Wright, II, District Judge, Presiding

                     Argued and Submitted November 7, 2013
                              Pasadena, California

Before: O’SCANNLAIN, GRABER, and BEA, Circuit Judges.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Plaintiff-Appellant, Benjamin Andrez Lomeli, appeals the district court’s

dismissal of his suit for failure to prosecute. We reverse and remand.

      Lomeli brought suit under 42 U.S.C. § 1983 and demanded a jury trial. The

court ordered the parties to file certain pretrial documents, including both parties’

proposed jury instructions and a set of joint jury instructions, by March 5, 2012.

As of March 12, 2012, Lomeli had not filed his proposed jury instructions or the

proposed pretrial order, and joint jury instructions had not been filed. Lomeli also

failed timely to respond to the district court’s order to show cause.

      At a hearing on March 12, 2012, Lomeli’s counsel informed the district

court that Lomeli would be willing to waive jury trial in light of his failure to file

jury instructions. Rather than accepting this waiver, the district court dismissed the

action for failure to prosecute under Federal Rule of Civil Procedure 41(b). In

dismissing the action, the district court abused its discretion.

      The district court did not consider any of the five factors that must be

weighed before using dismissal as a sanction: 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). In view of the availability of less drastic


                                           2
sanctions that would have allowed the trial court to proceed as scheduled, we

conclude that none of the five factors supported the dismissal.

      Less punitive measures included a refusal to allow Lomeli to file proposed

jury instructions and a consideration of only the defendants’ proposed jury

instructions, while allowing Lomeli leave to object to the defendants’ proposed

jury instructions.

      Accordingly, we remand with instructions to reinstate the action.

      REVERSED and REMANDED.




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