OpenJurist

91 F3d 151 Garry v. Portland Futon Company Incorporated

91 F.3d 151

Patrick J. GARRY, Plaintiff-Appellant,
v.
PORTLAND FUTON COMPANY INCORPORATED, an Oregon corporation,
Defendant-Appellee.

No. 95-35769.

United States Court of Appeals, Ninth Circuit.

Submitted June 25, 1996.*
Decided June 28, 1996.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Before: NOONAN, LEAVY, and TASHIMA, Circuit Judges.

1

MEMORANDUM**

2

Patrick J. Garry appeals the district court's dismissal of his Title VII, 42 U.S.C. § 2000e-2, action under Fed.R.Civ.P. 41(b) for failure to file a timely amended complaint. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

3

We review for abuse of discretion the district court's dismissal under Rule 41(b). See Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir.1987).

4

The district court may dismiss an action under Rule 41(b) if the plaintiff fails to prosecute his case, fails to comply with the applicable rules of procedure, or fails to abide by a court order. Fed.R.Civ.P. 41(b); see Malone v. United States Postal Serv., 833 F.2d 128, 130 (9th Cir.1987), cert. denied, 488 U.S. 819 (1988).

5

A dismissal under Rule 41(b) will not be disturbed unless there is a "definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors." Eldridge, 832 F.2d at 1136 (quotation omitted). The district court need not make specific findings to show that it considered the relevant factors. Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir.1986). If no such findings are present, however, we will review the record independently to determine whether the court abused its discretion. Id.

6

Our review of the record supports the district court's dismissal of the action. Garry was given two opportunities to amend his complaint and on both occasions failed to comply with the district court's orders in a timely fashion. Accordingly, the district court did not abuse its discretion in dismissing Garry's action.

7

AFFIRMED.

*

The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3