                                                                            FILED
                           NOT FOR PUBLICATION
                                                                               OCT 17 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT

ST VENTURES, LLC, a Utah corporation,            No.   15-16739

              Plaintiff-Appellant,               D.C. No.
                                                 1:12-cv-01058-LJO-SMS
 v.

KBA ASSETS AND ACQUISITIONS,                     MEMORANDUM*
LLC, a Nevada corporation; et al.,

              Defendants-Appellees.


                    Appeal from the United States District Court
                       for the Eastern District of California
                    Lawrence J. O’Neill, Chief Judge, Presiding

                           Submitted October 13, 2017**
                             San Francisco, California

Before: THOMAS, Chief Judge, and REINHARDT and TROTT, Circuit Judges.

      ST Ventures, LLC, appeals the district court’s dismissal of its action

pursuant to Federal Rule of Civil Procedure 41(b) for failing to comply with court


      *
             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).
orders and the subsequent denial of its motion for reconsideration under Federal

Rule of Civil Procedure 59(e). Because the parties are familiar with the facts, we

need not recount them here. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

      The district court did not abuse its discretion in dismissing the action.1 The

district court properly applied the five factor test applicable to involuntary

dismissals. This test considers “(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.” In re Phenylpropanolamine

(PPA) Products Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting Malone

v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987)). The district court

concluded that all factors except the fourth favored dismissal.

      We agree. Appellant’s multiple missed deadlines and requests for

extensions made it impossible for the district court to issue a scheduling order in

over three years. The resulting delay and disorganization lead the first factor



      1
        We review both the dismissal and the denial of the motion for
reconsideration for abuse of discretion. Yourish v. Cal. Amplifier, 191 F.3d 983,
986 (9th Cir. 1999) (Rule 41(b) review standard); Kona Enters. v. Estate of Bishop,
229 F.3d 877, 883 (9th Cir. 2000) (Rule 59(e) review standard).
                                            2
(expeditious resolution of litigation) and second factor (docket management) to

favor dismissal.

      The duration of the delay is also unreasonable, which leads to a presumption

of prejudice. In re PPA, 460 F.3d at 1227 (citations omitted). Appellant is unable

to rebut this presumption of prejudice because it does not present a legitimate (i.e.,

non-frivolous) excuse for its failure to abide by the multiple orders requiring the

amended complaint to be identical to the version previously reviewed by the

district court. In re Eisen, 31 F.3d 1447, 1453 (9th Cir. 1994). Therefore, the third

factor (risk of prejudice to the defendants) weighs in favor of dismissal.

      Finally, before dismissal, the district court advised Appellant that future

failure to comply with orders could result in “any and all sanctions” and granted

Appellant leave to amend again to remedy the filing error. This warning and

attempt at alternative remedies demonstrate that the fifth factor (the availability of

less drastic sanctions) weighs in favor of dismissal. In re PPA, 460 F.3d at 1229

(citations omitted).

      With four of five factors weighing in favor of dismissal, the district court did

not abuse its discretion in dismissing the action or in denying the motion for

reconsideration. Hernandez v. City of Elmonte, 138 F.3d 393, 399 (9th Cir. 1998)

(citing Malone, 833 F.2d at 133 & n.3).


                                           3
AFFIRMED.




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