Applying regional circuit law to a procedural question not unique to patent law, the Federal Circuit has held that a district court abused its discretion in sua sponte by dismissing a case with prejudice after the plaintiff failed to serve the complaint or respond to the district court’s show cause order. Bowling v. Hasbro, Inc., Case No. 04-1364 (Fed. Cir. Apr. 11, 2005) (Linn, J.).
In this patent infringement action, after Bowling failed to serve Hasbro within 120 days as required by the Federal Rules of Civil Procedure, the district court issued an order to show cause why Bowling’s lawsuit should not be dismissed. The order to show cause warned of potential dismissal under Rule 4(m)—which allows only for dismissal without prejudice—not under Rule 41(b)—which does allow for dismissal with prejudice. When Bowling failed to respond in the 30 days allowed, however, the district court dismissed the complaint with prejudice.
In exercising their inherent power sua sponte to dismiss a case for lack of prosecution, district courts in the Ninth Circuit must weigh five factors: "(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 defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy favoring disposition of cases on their merits." Though this particular fact pattern presented a case of first impression under this five-factor test, the Federal Circuit noted the strong emphasis placed by the Ninth Circuit on warning and consideration of less drastic alternatives.
Because the district court had warned Bowling that he risked only dismissal without prejudice and because the court clearly had available to it a "less drastic alternative" favored under Ninth Circuit law, the Federal Circuit held that the district court abused its discretion by dismissing the complaint with prejudice. Accordingly, the Federal Circuit reversed and remanded.
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