                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                            MAY 24 2011

                                                                        MOLLY C. DWYER, CLERK
                                                                          U .S. C O U R T OF APPE ALS

FIRST MAGNUS FINANCIAL                           No. 09-17845
CORPORATION,
                                                 D.C. No. 2:07-cv-00132
              Plaintiff - Appellant,

  v.                                             MEMORANDUM *

TYSON RONDEAU, et al.,

              Defendants - Appellees.



                    Appeal from the United States District Court
                              for Nevada, Las Vegas
                     James C. Mahan, District Judge, Presiding

                        Argued and Submitted May 10, 2011
                             San Francisco, California

Before: GOULD and M. SMITH, Circuit Judges, and MARBLEY, District Judge.**


       Because the parties are familiar with the factual and procedural history of

this case, we do not recount additional facts except as necessary to explain the



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
            The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.
decision. We have jurisdiction under 28 U.S.C. § 1291. We remand to the district

court to conduct a Henderson factor-based analysis to determine whether the

Appellant’s case should be dismissed pursuant to Rule 41(b). See Henderson v.

Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986).

      By not applying the Henderson factors, the district court abused its

discretion in granting the Appellees’ motion to dismiss the Appellant’s complaint

pursuant to Rule 41(b). Because the Appellant in this case was managing parallel

bankruptcy proceedings in Arizona, some delay in filing a Second Amended

Complaint is reasonable. Further, the district court did not include a date by which

it expected the Second Amended Complaint to be filed when it granted the

Appellant leave to amend. With these considerations in mind, the district court

should have properly weighed all of the Henderson factors before exercising its

discretion to dismiss the Appellant’s action. These factors include: “(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, 779 F.2d at 1423. Upon remand, therefore, the district

court should analyze whether the five Henderson factors weigh in favor of




                                            2
dismissal when deciding whether to grant the Appellees’ motion to dismiss brought

pursuant to Rule 41(b).

      REVERSED AND REMANDED.




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