Michael MADDOX, Plaintiff-Appellant, v. G & G PRODUCE CO., INC.; et al., Defendants-Appellees, 42 F. App'x 994

MEMORANDUM Michael Maddox appeals the district court’s dismissal of his employment discrimination action for lack of prosecution and its denial of his Fed.R.Civ.P. 60(

b) motion to reconsider. We have jurisdiction under 28 U.S.C. § 1291. We review for abuse of discretion, Oliva v. Sullivan, 958 F.2d 272, 273 (9th Cir.1992), and we vacate and remand. The district court abused its discretion when it sua sponte dismissed Maddox’s action for failure to appear at a pre-trial conference. See Oliva, 958 F.2d at 274. The district court did not warn Maddox of imminent dismissal, and there is no indication the court considered less drastic sanctions. See id. Further, we note that Maddox filed a timely opposition to a defendant’s motion for

summary judgment on the same day the district court dismissed for failure to prosecute. Accordingly, we vacate the dismissal and remand for further proceedings. VACATED AND REMANDED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.