What is the burden of persuasion for a motion to dismiss for failure to prosecute?
federal, United States of America
The following excerpt is from In re Osinga, 91 BR 893 (B.A.P. 9th Cir. 1988):
For purposes of a motion to dismiss for failure to prosecute, the plaintiff has the ultimate burden of persuasion both as to excuse for his own delay and as to lack of prejudice to the defendant. The trial court is to determine whether there has been sufficient unjustified delay to warrant dismissal of the plaintiff's case. Nealey, 662 F.2d 1275, 1279-81; Franklin v. Murphy, 745 F.2d 1221, 1233 (9th Cir.1984).
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