Danny BARNES, Plaintiff-Appellant, v. SPINCYCLE, LLC, also known as Spin-cycle, Inc., erroneously sued as Spin-Cycle, LLC, Defendant-Appellee, 180 F. App'x 692

MEMORANDUM Danny Barnes appeals pro se from the district court’s judgment dismissing his employment discrimination action pursuant to Federal Rule of Civil Procedure 37(b)(2) for failure to attend a pretrial conference. We have jurisdiction pursuant to 28 U.S.C. § 1291. Reviewing for abuse of discretion, United States ex rel. Wiltec Guam, Inc. v. Kahaluu Constr. Co., Inc., 857 F.2d 600, 603 (9th Cir.1988), we reverse, and remand for further proceedings.

A district court must consider the following five factors in determining whether to dismiss a case as a punitive measure: “(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.” Id. (quoting Malone v. United States Postal Service, 833 F.2d 128, 130 (9th Cir.1987)).

If the district court does not make explicit findings regarding these factors, this court reviews the record independently to determine whether the sanction was an abuse of discretion. Id. Here, the harsh penalty of dismissal was not warranted. Barnes’ failure to appear at the pretrial conference did not cause undue delay or render the case unmanageable. See id. at 605. Moreover, Spincycle suffered no prejudice beyond the expense of preparing for and attending the pretrial conference. See id.

Most important, the district court failed to warn Barnes of the possibility of dismissal and to consider less drastic sanctions. See id. Under these circumstances, the district court abused its discretion in dismissing the action. See id. We do not address Barnes’ contentions regarding the district court’s interlocutory rulings or the merits of his claims because the district court dismissed his action for failure to comply with a court order, and did not reach the merits of his claims. See Al-Torki v. Kaempen, 78 F.3d 1381, 1385 (9th Cir.1996). REVERSED and REMANDED.

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.