Opinion
This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Appeal from the United States District Court for the Northern District of California, Marilyn H. Patel, District Judge, Presiding.
Coy Ray Phelps, pro se, Butner, NC, for Plaintiff-Appellant.
Before KOZINSKI, SILVERMAN and TALLMAN, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Federal prisoner Coy R. Phelps appeals pro se the district court's judgment dismissing his action with prejudice for failure to prosecute and failure to timely serve his complaint pursuant to Fed.R.Civ.P. 4(m). We construe the district court's dismissal for failure to prosecute as one under Fed.R.Civ.P. 41(b). See Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir.1986) (so construing similar dismissal). We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of
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discretion, De Tie v. Orange County, 152 F.3d 1109, 1112 (9th Cir.1998) (Rule 4(m)); Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir.1987) (Rule 41(b)), and we reverse and remand.
The district court abused its discretion by dismissing sua sponte Phelps' action pursuant to Rule 4(m) because it did not give Phelps notice and opportunity to show good cause why service was not made. See Oyama v. Sheehan (In re Sheehan), 253 F.3d 507, 512 (9th Cir.2001); De Tie, 152 F.3d at 1111-12.
The district court also abused its discretion by dismissing Phelps' action sua sponte pursuant to Rule 41(b) because the balance of applicable factors may weigh against dismissal. See Dahl v. City of Huntington Beach, 84 F.3d 363, 366 (9th Cir.1996); see also Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th Cir.1976) (explaining that plaintiff has ability to rebut presumed prejudice to defendant as a result of unreasonable delay).
We have not considered factual information presented for the first time on appeal. See Partridge v. Reich, 141 F.3d 920, 926 n. 4 (9th Cir.1998).
We therefore reverse and remand for further proceedings consistent with this decision.
REVERSED and REMANDED.