United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 08-2584
                                    ___________

David Edward Boyle,                      *
                                         *
             Appellant,                  *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Western District of Missouri.
American Auto Service, Inc.,             *
                                         *
             Appellee.                   *
                                    ___________

                              Submitted: February 13, 2009
                                 Filed: July 2, 2009
                                  ___________

Before RILEY, SMITH, and SHEPHERD, Circuit Judges.
                             ___________

SMITH, Circuit Judge.

        David Boyle appeals from the district court's1 order dismissing with prejudice
for failure to prosecute his complaint against American Auto Service, Inc. ("American
Auto"). On appeal, Boyle raises three points for reversal. First, he asserts that the
district court erred in applying Federal Rule of Civil Procedure 41(b) to dismiss his
case with prejudice for failure to prosecute because Rule 41(b) only applies to conduct
occurring after removal. Second, he argues that the district court erroneously
concluded that his lawsuit was subject to dismissal for failure to prosecute pursuant

      1
        The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
to Missouri Supreme Court Rule 67.032 because state law did not require him to
exercise due diligence in obtaining service on American Auto. Finally, he asserts that
the district court abused its discretion in dismissing his case with prejudice for failure
to prosecute pursuant to Rule 41(b) because he did not willfully disobey a court order
and did not persistently fail to prosecute his case. We affirm.

                                    I. Background
        American Auto hired Boyle in 2001 as a helper/shuttle driver. On January 17,
2003, American Auto terminated Boyle's employment allegedly because of its loss of
a contract and a subsequent shortage of work. Following his termination, Boyle timely
filed a charge of age discrimination with the Missouri Commission on Human Rights
(MCHR) and the Equal Employment Opportunity Commission (EEOC). On January
12, 2004, Boyle received a right-to-sue letter from the MCHR. The letter advised
Boyle that he must file a lawsuit within 90 days from his receipt of the letter. Boyle
timely filed his lawsuit in the Circuit Court of Clay County, Missouri, on April 9,
2004, and, on April 14, 2004, a summons was issued and delivered to Boyle's counsel.
Boyle's counsel never served this summons on American Auto.

       On January 16, 2008, a second summons was issued to Boyle's counsel. This
new summons was served on American Auto on January 24, 2008. Thus, more than
three and a half years (44 months) elapsed from the time that Boyle filed the suit to
the time that he served American Auto. No other summons was requested or issued
between the time that the first unserved summons and the second summons were
issued.

      Following service of summons, American Auto timely removed the suit to
federal court based on diversity jurisdiction and answered Boyle's complaint. The next


      2
       Both the district court and the parties refer to "Missouri Supreme Court Rule
67.03" as "Missouri Rule of Civil Procedure 67.03."

                                           -2-
day, the district court entered an order requiring Boyle and American Auto to file a
proposed scheduling order and to conduct a Federal Rule of Civil Procedure 26(f)
conference. The district court ordered the parties to meet on or before April 1, 2008,
and to file a proposed scheduling order on or before April 11, 2008. Boyle and
American Auto met and thereafter filed a "Joint Report on Discovery and Conference
and Proposed Scheduling Order" on March 26, 2008. The district court then entered
a "Scheduling and Trial Order" that same day. In the order, the district court set
deadlines to amend the pleadings to join additional parties; ordered that all pretrial
discovery must be completed on or before October 24, 2008; and set the matter for a
jury trial on April 6, 2009.

       On April 4, 2008, American Auto filed a motion to dismiss for lack of
prosecution, contending that Boyle's suit should be involuntarily dismissed pursuant
to Federal Rule of Civil Procedure 41(b) or Missouri Supreme Court Rule 67.03
because of Boyle's 44-month delay in serving American Auto. American Auto made
two arguments in support of its motion. First, it argued that Boyle's failure to serve
process within 90 days of filing required dismissal of the action. According to
American Auto, Missouri law mandates that process must be served upon a party
within 30 days after a summons is issued. See Mo. Sup. Ct. R. 54.01; 54.21. Boyle
neither served the summons nor returned it to the state court with an explanation of
the reason for failing to serve the summons within 30 days. Instead, 44 months later,
he requested another summons and served it upon American Auto. American Auto
maintained that Missouri courts typically dismiss a case from the state trial court's
docket when the plaintiff does not effect service within 90 days of filing. American
Auto thus argued that Boyle's failure to comply with the service requirement
warranted dismissal for want of prosecution, absent justifiable cause that outweighed
the prejudices that such delay caused American Auto.

      Second, American Auto asserted that Boyle's lack of prosecution caused it
prejudice because it could have reasonably believed that no lawsuit was forthcoming

                                         -3-
after the 90-day period ran in which Boyle had to serve the summons. American Auto
alleged that, during the three-and-a-half-year delay, some of its witnesses, including
Boyle's coworkers and managers, left its employment; records may not have been
preserved in the regular course of business; and memories of relevant facts have likely
faded.

       In response, Boyle argued that he "timely filed his petition in Missouri circuit
court prior to the removal" and that "[u]nder Missouri law, all that is required to
timely 'commence' a lawsuit is filing of the petition with the circuit court." Boyle
asserted that "Missouri abrogated the inconsistently applied requirement that also
required that a plaintiff exercise due diligence in the service of process to properly
commence a lawsuit where the statute of limitation has expired." According to Boyle,
American Auto ignored the fact that the case was "properly commenced in the state
court and that plaintiff fully complied with applicable Missouri law on
commencement of this lawsuit." Boyle also averred that he had "fully complied with
all of [the federal district court's] orders and federal procedure since this case was
removed and has been properly prosecuting this action." In addition, Boyle argued that
American Auto waived any claim of insufficiency of service of process by failing to
plead this defense in either a pre-answer motion or in its answer.

      The district court granted American Auto's motion to dismiss, finding as
follows:

      In this case, Plaintiff waited over three and one-half years from the time
      he filed his suit to serve Defendant. Though he argues he complied with
      all applicable rules, Plaintiff offers no reason for his delay. As Defendant
      states, Plaintiff knew his former employer's location and was aware
      Defendant needed to be served. Defendant avers it had a registered agent
      for service and Plaintiff presents no evidence to show Defendant was
      attempting to avoid service. Further, Defendant correctly asserts such a
      long delay has great potential for prejudice to its defense as witnesses,
      documents, and other evidence may no longer be readily available.

                                          -4-
      In the Court's opinion, the wording of the cited rules alone is sufficient
      to warrant dismissal here as Plaintiff apparently took no initiative to
      prosecute his claim and offers no excuse for his lengthy delay.
      Nevertheless, State ex rel. Hayden v. Carr, 

, 713–14
      (Mo. Ct. App. 1980) and State ex rel. State Highway Comm'n of
      Missouri v. Miles, 

(Mo. Ct. App. 1978), among other
      cases, provide analogous support for the Court's decision. Defendant's
      Motion to Dismiss is therefore GRANTED with prejudice. Defendant's
      request for fees and costs is DENIED.

      In a footnote, the district court observed that "[m]ore than enough grounds for
dismissal are apparent in this case under either Rule 41(b) or Mo. R. Civ. P. 67.03."

                                       II. Discussion
       Boyle makes three arguments in support of reversal of the district court's grant
of American Auto's motion to dismiss for failure to prosecute. First, Boyle alleges that
the district court erred as a matter of law in dismissing his case with prejudice because
the district court erroneously applied Federal Rule of Civil Procedure 41(b)
retroactively to actions that occurred prior to removal to federal court. In addition, he
asserts that American Auto failed to timely file its motion to dismiss under Federal
Rule of Civil Procedure 81(c).

       Second, Boyle asserts that the district court erred as a matter of law in
concluding that he failed to comply with Missouri law prior to removal and that his
case was subject to dismissal for lack of prosecution under Missouri Supreme Court
Rule 67.03. Boyle maintains that Missouri law abolished the requirement that a
plaintiff exercise due diligence in obtaining service of process. Further, he avers that
the district court ignored Missouri case law stating that failure to exercise due
diligence in the service of process is not a basis to dismiss a case for lack of
prosecution under Rule 67.03. Additionally, he argues that the district court's
application of Rule 67.03 denied him the right to ten days' notice prior to dismissal,
as mandated by Clay County Circuit Court Rule 37.01.

                                          -5-
       Finally, Boyle argues that the district court abused its discretion in dismissing
his case under Rule 41(b) because he did not willfully violate any order of the district
court or any other court, as he complied with Missouri law in filing his case and
obtaining service of process. Therefore, he maintains that any delay in service of
process in this case did not warrant the extreme sanction of dismissal with prejudice.

      The merit of Boyle's arguments depends, in large part, on whether Federal Rule
of Civil Procedure 41(b), rather than Missouri Supreme Court Rule 67.03, governs
dismissal of this diversity suit for failure to prosecute. Rule 41(b) provides:

      (b) Involuntary Dismissal; Effect. If the plaintiff fails to prosecute or to
      comply with these rules or a court order, a defendant may move to
      dismiss the action or any claim against it. Unless the dismissal order
      states otherwise, a dismissal under this subdivision (b) and any dismissal
      not under this rule—except one for lack of jurisdiction, improper venue,
      or failure to join a party under Rule 19—operates as an adjudication on
      the merits.

      Rule 67.03 of the Missouri Supreme Court Rules provides:

      A defendant may move for an involuntary dismissal of the civil action
      for lack of jurisdiction, for prematurity of action, for failure to substitute
      a party for a decedent and for such other dismissals as are allowed by
      these Rules 41 through 101. Defendant may also move for an involuntary
      dismissal of the civil action for failure of the plaintiff to prosecute or to
      comply with these Rules 41 through 101 or any order of the court. Any
      involuntary dismissal shall be without prejudice unless the court in its
      order for dismissal shall otherwise specify.

      Our circuit has no controlling precedent precisely addressing whether state or
federal law applies when the delay in question occurs in state court before removal to
federal court. But the Ninth Circuit has addressed this very issue. See Nealey v.
Transportacion Maritima Mexicana, S.A., 

(9th Cir. 1980); Olympic

                                           -6-
Sports Prod., Inc. v. Universal Athletic Sales Co., 

(9th Cir. 1985);
Harvey's Wagon Wheel, Inc. v. Van Blitter, 

(9th Cir. 1992).

       In Nealey, the plaintiff filed his complaint on May 29, 1975, in state court
within the state's statute-of-limitations 

–78. But the
defendants were not served with the complaint and summons until April
1977—almost two years after commencement of the action. 

The
defendants answered the complaint on April 27, 1977, and filed a notice of removal
to federal district court based on diversity jurisdiction on May 5, 1977. 

then promptly commenced discovery proceedings, with both sides
propounding and answering interrogatories and document production demands. [The
defendants] also noticed various depositions." 

18, 1977, the defendants
filed a motion to dismiss the action for failure to prosecute, which the district court
granted, dismissing the action with prejudice. 

the court acknowledged that, "[w]ithout question, a plaintiff's failure
to serve process in a timely manner may in some cases amount to a failure to
prosecute, and a district court may dismiss an action on this ground" under Rule 41(b).

omitted). In a corresponding footnote, the court noted that the
plaintiff's brief "repeatedly insisted on the nonapplicability of rule 41(b) to removed
actions and stressed that his conduct ought to be tested under state law." 

n.5. But at oral argument the plaintiff conceded the applicability of federal law,
although he relied on state cases while doing so. 

then gave its answer to
the question of which procedural rule applied—state or federal—stating:

      We believe that under the doctrine of Erie R.R. Co. v. Tompkins, 

, 

, 

(1938), and its progeny, rule 41(b)
      is applicable to a removed action and may form the basis for dismissal
      of such an action. See Grivas v. Parmalee Transportation Co., 

, 337 (7th Cir. 1953), cert. denied, 

, 

, 98 L.
      Ed. 1069 (1954). However, in deciding whether a delay on the plaintiff's

                                          -7-
      part prior to removal constitutes a failure to prosecute as a matter of
      federal law, see, pp. 1281–1282 infra, the district court should consider
      whether the plaintiff was within his rights under the relevant state law.

–79 n.5.

        The court then observed that a district court, in exercising its discretion, must
weigh "conflicting policies" in determining whether to grant a motion to dismiss for
failure to prosecute: "on the one hand, the court's need to manage its docket, the public
interest in expeditious resolution of litigation, and the risk of prejudice to defendants
from delay; on the other hand, the policy favoring disposition of cases on their
merits." 

(internal quotations and citation omitted). According to the court,
"[t]he first two of these four policy considerations suggest that rule 41(b) is in large
part a housekeeping measure related to the efficient administration of judicial business
for the benefit of all litigants with cases pending." 

court noted that the
federal and state judicial systems are not "identic" in this respect, as "inaction that
crowds a state court docket does not, upon removal, necessarily translate to delay in
the federal judicial system." 

defendants could not invoke Rule 41(b) "to
assist the state judiciary in managing its business; if that was [the defendants'] goal,
they should have sought dismissal in the [state court]." 

to the case at
issue, the court noted that "even before removal was accomplished," "all parties began
diligently to press this matter toward resolution." 

removal there was no
inactivity, no failure to prosecute, that interfered with the federal goal of 'secur[ing]
the just, speedy, and inexpensive determination of every action.'" 

R.
Civ. P. 1). As a result, the court concluded that "administrative concerns should not
have figured in the district court's calculus when it exercised its discretion in this
case." 

then addressed the "two remaining policy considerations" supporting
Rule 41(b): the risk of prejudice to the defendants caused by the delay versus the


                                          -8-
policy favoring disposition of cases on their merits. 

the court, the
primary factors to focus on are "prejudice and delay." 

recognized that
a failure to diligently prosecute an action "is sufficient by itself to justify a dismissal"
and that an unreasonable delay in prosecuting an action "creates a presumption of
injury to appellees' defenses." 

(internal quotations and citations omitted).
Furthermore, a determination as to whether actual prejudice is present "may be an
important factor in deciding whether a given delay is 'unreasonable.'" 

and citation omitted). But the court also recognized a "competing concern":
"the interest in disposing of cases on their merits." 

relevant question is
"whether there has been sufficient delay or prejudice to justify a dismissal of the
plaintiff's case." 

the court, "[t]he longer the delay, the more likely
prejudice becomes." 

and citation omitted).

       The court also found that because a motion to dismiss under Rule 41(b) is
similar to an affirmative defense under Federal Rule of Civil Procedure 8(c), "it
should be incumbent upon the movant to come forth with some facts indicating delay
on the part of the plaintiff." 

acknowledged that this burden "will rarely
be difficult" because such facts will likely "appear on the face of the motion papers."

unreasonable delay will support a dismissal for lack of prosecution, and
unreasonableness is not inherent in every lapse of time." 

omitted).
According to the court, the plaintiff "may have an explanation that excuses or justifies
his failure." 

at this point that the extent of prejudice to the defendant, if any,
becomes important." 

alone should not be deemed to create a
'presumption of prejudice,' save in the sense that if the plaintiff proffers no pleading
or presents no proof on the issue of reasonableness, the defendant wins." 

, alteration, and citation omitted). The court placed the ultimate burden of
persuasion on the plaintiff "as to the excuse for his own delay and as to lack of
prejudice to the defendant." 

and citation omitted). According
to the court, prejudice takes two forms: "loss of evidence and loss of memory by a
witness." 

"[A] district court in the exercise of its discretion should

                                            -9-
consider whether such losses have occurred and if so, whether they are significant."

then summarized the burden of proof as follows:

      [W]here a plaintiff has come forth with an excuse for his delay that is
      anything but frivolous, the burden of production shifts to the defendant
      to show at least some actual prejudice. If he does so, the plaintiff must
      then persuade the court that such claims of prejudice are either illusory
      or relatively insignificant when compared to the force of his excuse. At
      that point, the court must exercise its discretion by weighing the relevant
      factors—time, excuse, and prejudice.

principles to the case before it, the court found itself
"hampered" by the district court's failure to make findings of fact, as the record
provided no support for concluding that the plaintiff's delay was unreasonable. 

the defendants argued that the plaintiff failed to serve them "promptly
upon the filing of the complaint," the court rejected this argument, stating:

      Nevertheless, during the hiatus between commencement and service
      when this action was pending in the Superior Court, the applicable rules
      for service of process were those found in the California Civil Procedure
      Code. Cal. Civ. Proc. Code § 581a(a) provides for up to "three years
      after the commencement of [an] action" within which to serve process.
      (Emphasis added). Hence, at the time of service appellant fell well within
      the bounds of the applicable law.

      Appellees' removal of the action to a federal court does not alter that fact.
      The Federal Rules "apply to civil actions removed to the United States
      district courts from the state courts and govern procedure after removal."
      Fed. R. Civ. P. 81(c) (emphasis added). If process was properly issued
      and timely served under state law prior to removal, such service remains
      sufficient afterwards, as common sense dictates, 28 U.S.C. § 1448
      assumes, and Beecher v. Wallace, 

, 373 (9th Cir. 1967),

                                          -10-
      implies. There is no justification for holding appellant's delay to have
      been unreasonable, since service was accomplished within the period
      allowed by California law.

And, although the court found that this fact alone should have been
sufficient to defeat the motion to dismiss, it also pointed out that the plaintiff
"nonetheless came forward in the district court and offered an explanation for failing
to serve [the defendants] promptly." 

"This excuse, weak though it may
have been, was sufficient to trigger [the defendants'] obligation to come forth with
some evidence of actual prejudice." 

court noted that the defendants "never
suggested that actual prejudice had occurred; they relied solely on [the plaintiff's]
alleged failure to exercise due diligence and on the presumption of prejudice they
claimed to result therefrom." Id As a result, the court found that

      [w]here a delay has not been unreasonable, where the defendant has
      suffered no actual prejudice, or where the plaintiff has cured his lapse in
      state court and been diligent in prosecuting his action following removal,
      the policy in favor of deciding cases on their merits should prevail over
      those which would favor dismissal.

Accordingly, the court held that the district court abused its discretion in
dismissing the case. 

the Ninth Circuit reaffirmed its analysis in Nealey that Rule 41(b),
instead of a state rule of procedure, "govern[ed] dismissal of diversity suits for lack




                                          -11-
of 

.3 According to the court, the proper analysis for
determining whether a state rule or federal rule applies is as follows:

      First, we must determine if the federal rule and state rule are actually
      coextensive. If the federal rule does not address the situation, there
      would be no conflict between state and federal rules. We would then
      apply the Erie analysis to determine if the federal court should enforce
      the state rule. If the federal rule does address the situation, there would
      be an unavoidable conflict between the state and federal rules. We would
      then apply the Hanna [v. Plumer, 

(1965)] analysis: if the
      federal rule is within the scope of constitutional power and the Rules
      Enabling Act, it applies unless the Erie considerations are so strong that
      they can justify interrupting the normal function of the federal court
      processes.

see also Van 

–58 (holding that Rule 41(b) was
sufficiently coextensive with Nevada rule mandating prejudicial or nonprejudicial
dismissal for failure to prosecute after five years and was applicable; federal rule
raised no forum shopping concerns because no rational plaintiff would file in federal
court based on expectation that dismissal would be discretionary, rather than




      3
        In Olympic, the plaintiff filed a diversity action in federal court against the
defendants on March 1, 1978, and the defendants filed a counterclaim. 

March 1, 1983, the complaint had been pending for five years. 

moved
for a pretrial conference on May 5, 1983, but one of the defendants filed a motion in
opposition, as well as a motion to dismiss under California Code of Civil Procedure
§ 583(b) and Rule 41(b). 

court granted the motion to dismiss for
failure to prosecute. 

the plaintiff argued that Rule 41(b), instead of the
California procedural rule, applied to the case and that the district court erred by
applying the state rule. 

district court dismissed the plaintiff's
complaint under the California procedural rule when Rule 41(b) should have been
applied, the court reversed the district court and remanded for further consideration.

                                          -12-
mandatory, after five years; under both rules courts possess some discretion to account
for reasonable diligence; and Nevada's rule was not integral to statute of limitations).

      We are persuaded by the Ninth Circuit's rationale, as expressed in Nealey and
Olympic, as it is well-reasoned and in line with our prior precedent. See Winkels v.
George Hormel & Co., 

, 568 (8th Cir. 1989) ("[W]e will follow the
general rule that state procedural rules govern cases originating in state court until
removed to federal court.") (emphasis added).

       Therefore, we must first engage in an Erie/Hanna analysis to determine whether
Federal Rule of Civil Procedure 41(b) or Missouri Supreme Court Rule 67.03 applies
to the instant case. After deciding which rule applies, we will then apply the Nealey
analysis to determine whether the district court, in exercising its discretion, properly
weighed "the court's need to manage its docket, the public interest in expeditious
resolution of litigation, and the risk of prejudice to defendants from delay" against
"the policy favoring disposition of cases on their merits." 

(internal quotations and citation omitted).

        To determine which procedural rule applies, "we must [first]determine if [Rule
41(b)] and [Rule 67.03] are actually coextensive." 

. The
"'federal law and state law [need not] be perfectly coextensive and equally applicable
to the issue at hand; rather . . . the federal statute [must] be sufficiently broad to cover
the point in dispute.'" Van 

(quoting 

).
Here, both Rule 41(b) and Rule 67.03 are discretionary dismissal statutes permitting
a defendant to move for dismissal for a plaintiff's failure to prosecute an action. And,
because Rule 41(b) is "sufficiently broad to cover the point in dispute," it matters not
that Rule 41(b) operates as an adjudication on the merits, while Rule 67.03 dismisses
the action "without prejudice unless the court in its order of dismissal shall otherwise
specify."



                                           -13-
       Having determined that Rule 41(b) does address the present situation, we must
now apply the Hanna analysis. We will assume that Rule 41(b) is "within the limits
of Congress' constitutional power and the Rules Enabling Act" because neither party
has "attempted to argue that the rule is invalid for either reason." 

. "We therefore proceed to consider whether, despite the federal rule's validity
and applicability, Erie considerations require us to enforce the state rule in its place."

as did the court in Olympic, that "[f]orum-shopping concerns" are
"inapplicable here," as it is difficult to imagine "that a plaintiff, before filing a lawsuit,
might choose a federal forum rather than a state forum in the expectation that rule
41(b) would lead to a different outcome." 

that Rule 41(b) is the applicable rule, and because the district
court justified dismissal of the action based on both Rule 41(b) and Rule 67.03, we
next consider whether the district court abused its discretion in dismissing with
prejudice Boyle's case for failure to prosecute. See Smith v. Gold Dust Casino, 

, 404 (8th Cir. 2008) ("This court reviews the district court's decision to
dismiss an action pursuant to Rule 41(b) for abuse of discretion."). In undertaking this
review, we look to the policy considerations enunciated in Nealey.

       First, with regard to "the court's need to manage its docket" and "the public
interest in expeditious resolution of litigation," 

, we note that,
unlike in Nealey where "even before removal was accomplished" both the plaintiff and
the defendant "began diligently to press this matter toward resolution," 

occurred in the present case prior to removal, as Boyle waited 44 months before even
serving American Auto.4




       4
       We do acknowledge that, post-removal, there was activity on Boyle's part, and
the parties agreed to a scheduling order before the district court.

                                            -14-
       Furthermore, in considering whether Boyle was within his rights under
Missouri law, unlike in Nealey where the court found the plaintiff complied with state
law in serving the defendants, as the state law provided the plaintiff with up to three
years after the commencement of the action to serve process, in the present case,
Boyle did not comply with Missouri law. Missouri law required Boyle to serve
process upon American Auto "within 30 days after a summons is issued." Mo. Sup.
Ct. R. 54.21 ("The officer or other person receiving a summons or other process shall
serve the same and make return of service promptly. If the process cannot be served
it shall be returned to the court within thirty days after the date of issue with a
statement of the reason for the failure to serve the same . . . .) (emphasis added). Not
only did Boyle not serve the first summons within the 30-day period or return it to the
court with a statement of reasons for failing to serve American Auto, he never asked
for a 90-day extension to effect service. See 

service thereof may be
extended up to ninety days from the date of issue by order of the court."). Instead,
Boyle procured a second summons.

        Second, we must consider the "conflicting policies" of the risk of prejudice to
the defendants caused by the delay versus the policy favoring disposition of cases on
their merits. 

. American Auto set forth facts indicating a
delay on the part of Boyle: the fact that Boyle waited 44 months before serving
American Auto with the summons. At this point, Boyle should have offered a
justification for the delay. Boyle failed to offer an explanation to the district court as
to why he waited 44 months before serving American Auto. Instead, he simply
maintained that he properly commenced the action in state court and had fully
complied with all of the district court's orders and federal procedural rules since the
case was removed. But this answer does not explain what caused the 44-month delay.

       Because Boyle has failed to come forth with an excuse for the delay, we need
not address whether American Auto suffered actual prejudice. 

("[W]here
a plaintiff has come forth with an excuse for his delay that is anything but frivolous,

                                          -15-
the burden of production shifts to the defendant to show at least some actual
prejudice.").

       As a result, we cannot say that the district court abused its discretion in
dismissing with prejudice Boyle's case, as Rule 41(b) provides that, upon a finding
that a plaintiff failed to prosecute an action, the district court's dismissal (unless the
dismissal order states otherwise) operates as an adjudication on the merits.5

                                    III. Conclusion.


      5
        Boyle argues that because American Auto did not file its motion to dismiss for
failure to prosecute under Rule 41(b) until April 4, 2008, its motion was more than
five days beyond the mandatory deadline set forth in Federal Rule of Civil Procedure
81(c)(2) and should have been denied on this basis. Rule 81(c)(2) provides that a
defendant who did not answer a petition prior to removal

      must answer or present other defenses or objections under these rules
      within the longest of these period:

      (A) 20 days after receiving—through service or otherwise—a copy of the
      initial pleading stating the claim for relief;

      (B) 20 days after being served with the summons for an initial pleading
      on file at the time of service; or

      (C) 5 days after the notice of removal is filed.

Fed. R. Civ. P. 81(c)(2)(A)–(C) (emphasis added). As American Auto points out, it
complied with Rule 81(c)(2) because it chose to answer the complaint within the
requisite time period. Furthermore, while a motion to dismiss for failure to prosecute
is similar to an affirmative defense under Federal Rule of Civil Procedure 8(c),

, it is not an affirmative defense that a party, "[i]n responding
to a pleading," "must affirmatively state." Fed. R. Civ. P. 8(c). Nor is there any
evidence in the record that American Auto failed to comply with an order of the court
setting a time period within which it had to file such a motion.


                                          -16-
Accordingly, we affirm the judgment of the district court.
               ______________________________




                                 -17-