                                                                           FILED
                           NOT FOR PUBLICATION                             AUG 17 2015

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



                            FOR THE NINTH CIRCUIT


RHONDA ESPY,                                     No. 13-56295

              Plaintiff - Appellant,             D.C. No. 3:12-cv-00952-LAB-WMC

  v.
                                                 MEMORANDUM*
INDEPENDENCE BLUE CROSS,

              Defendant - Appellee.


                    Appeal from the United States District Court
                      for the Southern District of California
                     Larry A. Burns, District Judge, Presiding

                             Submitted July 10, 2015**
                               Pasadena, California

Before: REINHARDT and CLIFTON, Circuit Judges and DU,*** District Judge.

       Plaintiff Rhonda Espy appeals the dismissal with prejudice of her action

against Defendant Independence Blue Cross. The district court dismissed the case

        *
             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 Miranda M. Du, District Judge for the U.S. District
Court for the District of Nevada, sitting by designation.
based on her failure to file a memo in opposition to Defendant’s motion to dismiss,

treating that failure as consent to the granting of the motion, pursuant to Southern

District of California Civil Local Rule 7.1(f)(3)(C). We vacate the dismissal and

remand for further proceedings.

      Pro se litigants are required to follow rules, including local rules. It is

established under our precedents, however, that dismissal of an action cannot be

based solely on a plaintiff’s failure to file an opposition memo. When a district

court considers dismissal of a case pursuant to a rule like Civil Local Rule

7.1(f)(3)(c), it is required to weigh: “(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.” Ghazali v. Moran,

46 F.3d 52, 53 (9th Cir. 1995) (per curiam) (quoting Henderson v. Duncan, 779

F.2d 1421, 1423 (9th Cir. 1986)). If the district court did not consider these factors

explicitly, as it did not here, we may review the record ourselves to determine

whether the district court abused its discretion in dismissing the action. Ghazali, 46

F.3d at 53–54 (citing Henderson, 779 F.2d at 1424).

       The district court did advise Espy specifically of Civil Local Rule

7.1(f)(3)(C)’s requirement to file a timely opposition to a motion to dismiss in an


                                            2
order entered eleven months earlier, on July 6, 2012. That fact weighs in favor of

the dismissal. The balance of the factors appears to us to point in the other

direction, however. Espy met other deadlines and had not shown herself to be

prone to delay. Nothing in the record established that Defendant would have

suffered prejudice if Espy had been permitted to present her opposition orally at

the scheduled hearing or if she had been reminded of the requirement and given

another opportunity to file a written response prior to that hearing. Other sanctions

less drastic than dismissal with prejudice could have been imposed.

       Most importantly, the public policy of disposing the case on the merits

strongly disfavored dismissal for failure to file a timely written opposition. We are

not in a position to assess the merits of Espy’s action, but it seems likely that her

complaint could have survived at the motion to dismiss stage if the motion had

been considered on the merits. Most of Defendant’s arguments, both in its motion

to dismiss filed with the district court and in its briefing to this court, particularly

with regard to claims 1 and 3 (the ERISA benefit and collateral estoppel claims),

appear to rest mainly on factual contentions. Such factual arguments might be

appropriate for summary judgment, but they are not often successful on a motion

to dismiss, given that at the motion to dismiss stage a court should treat plausible

factual allegations in the complaint as true. See Knievel v. ESPN, 393 F.3d 1068,


                                             3
1072 (9th Cir. 2005) (construing factual allegations as true in favor of the non-

moving party); Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006) (generally

saying that review of a motion to dismiss is limited to the facts alleged in the

complaint). Espy’s allegations do not appear implausible on their face.

      The dismissal based on Civil Rule 7.1(f)(3)(C) is vacated and the matter is

remanded to the district court for further proceedings.

      Costs are awarded to plaintiff-appellant Espy.

      VACATED AND REMANDED.




                                           4
