                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                            FEB 17 2017
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
AMY PRIEN,                                       No. 15-55919

              Plaintiff-Appellant,               D.C. No.
                                                 2:05-cv-06977-RSWL-E
 v.

GROVER TRASK, et al.,                            MEMORANDUM*

              Defendants-Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                    Ronald S.W. Lew, District Judge, Presiding

                           Submitted February 15, 2017**
                              Pasadena, California

Before: TALLMAN and N.R. SMITH, Circuit Judges; and MURPHY III,***
District Judge.




      *
             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).
      ***    The Honorable Stephen Joseph Murphy, III, United States District
Judge for the Eastern District of Michigan, sitting by designation.
      Amy Prien appeals the district court’s order dismissing her case with prejudice

for failure to prosecute. We have jurisdiction under 28 U.S.C. § 1291. We review a

dismissal under Rule 41(b) for abuse of discretion. Hearns v. San Bernardino Police

Dep’t, 530 F.3d 1124, 1129 (9th Cir. 2008). “[W]e will overturn a dismissal sanction

only if we have a definite and firm conviction that it was clearly outside the acceptable

range of sanctions.” Allen v. Bayer Corp. (In re Phenylpropanolamine (PPA) Prods.

Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting Malone v. USPS, 833 F.2d

128, 130 (9th Cir. 1987)). And, “we consider only the district court record on appeal.”

Lowry v. Barnhart, 329 F.3d 1019, 1024 (9th Cir. 2003).

      In its dismissal order, the district court properly applied our circuit’s five-factor

test for determining whether dismissal is appropriate. See Pagtalunan v. Galaza, 291

F.3d 639, 642–43 (9th Cir. 2002). Because we give deference to the district court’s

determination that a delay interferes with docket management and undermines the

public’s interest in expeditious resolution, we conclude that Prien’s seven-year delay

and repeated violations of court orders supported the court’s determination on those

factors. See Moneymaker v. CoBen (In re Eisen), 31 F.3d 1447, 1451–52 (9th Cir.

1994). “Unreasonable delay creates a presumption of injury to the defense.”

Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986). It was reasonable for the

district court to determine that faded memories and stale evidence resulting from the

                                            2
delay would prejudice the defendants. The district court considered less drastic

alternatives when it warned Prien of the possibility of dismissal and gave her two

opportunities to respond. See Phenylpropanolamine, 460 F.3d at 1229. But Prien

failed to move the case forward, in repeated violation of a court order. The district

court reasonably determined that the public interest in judicial economy outweighed

the interest in resolving the case on its merits. Cf. Eisen, 31 F.3d at 1454 (concluding

that delay and prejudice outweighed interest in resolution on the merits).

      The district court did not abuse its discretion in dismissing the case with

prejudice.

      Appellant shall bear all costs of appeal. See Fed. R. App. P. 39(a)(2).

      AFFIRMED.




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