NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 30 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT EDITH MENBRENO; LUIS SORIANO, Nos. 18-55239, 18-55315 Plaintiffs-Appellants/Cross-Appellees, D.C. No. 2:16-cv-00687-MRW v. MEMORANDUM* JONATHAN STRINGER, Defendant-Appellee/Cross-Appellant. Appeal from the United States District Court for the Central District of California Michael R. Wilner, Magistrate Judge, Presiding Argued and Submitted August 16, 2019 Pasadena, California Before: SCHROEDER and R. NELSON, Circuit Judges, and LEFKOW,** District Judge. Edith Menbreno and Luis Soriano appeal from the district court’s final judgment dismissing their case for failure to prosecute. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Joan H. Lefkow, United States District Judge for the Northern District of Illinois, sitting by designation. Menbreno and Soriano, citizens and residents of El Salvador, sued Officer Stringer for fatally shooting their son. Because of logistical difficulties and to spare them the discomfort of discussing their son’s death unless necessary, the parties stipulated in September 2017 to deferring the plaintiffs’ depositions in Los Angeles until after the district court ruled on Stringer’s motion for summary judgment. Unbeknownst to Stringer, however, Menbreno was denied a visa to travel to the United States, and there is no evidence in the record that Soriano ever applied for one. The district court denied summary judgment, and Stringer tried to schedule the plaintiffs’ depositions. Plaintiffs’ counsel then told Stringer’s counsel for the first time, about three weeks before trial, that the plaintiffs could not travel to the United States. Plaintiffs did not notify the court until the final pretrial conference, ten days before trial. The court granted plaintiffs’ motion for leave to testify remotely, finding that they had “(barely) shown good cause and compelling circumstances due to immigration complications.” The court warned that if counsel could not “secure the appearance of either or both of the parents for deposition and trial testimony, the parties must be prepared to explain whether trial can proceed.” Neither plaintiff was deposed. At the appointed hour for the plaintiffs’ remote testimony, Soriano did not appear, and Menbreno’s video feed could not connect to the courthouse. After over twenty minutes of futile attempts to connect 2 18-55239 the feed, the court excluded the plaintiffs’ testimony and granted Stringer’s motion to dismiss the action for the plaintiffs’ failure to prosecute. We review a dismissal for failure to prosecute for an abuse of discretion. Al- Torki v. Kaempen, 78 F.3d 1381, 1384 (9th Cir. 1996). “The district court’s dismissal will only be disturbed if 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 relevant factors.’” Pagtalunan v. Galaza, 291 F.3d 639, 640–41 (9th Cir. 2002) (quoting Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992)). We consider five factors in review of dismissals for ...
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