UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1041
THE ESTATE OF JOSE M. SOLIS-RIVERA, ET AL.
Plaintiffs, Appellants,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gilberto Gierbolini, U.S. District Judge]
Before
Selya, Circuit Judge,
Campbell, Senior Circuit Judge,
and Cyr, Circuit Judge.
Armando Cardona-Estelritz and Isidro Garcia Pesquera Law Offices
on brief for appellants.
Isabel Munoz Acosta, Assistant United States Attorney, and
Daniel F. Lopez-Romo, United States Attorney, on brief for the United
States.
May 11, 1993
Per Curiam. Plaintiffs/appellants are the widow
and children of the late Jose M. Solis Rivera. Plaintiffs
brought this action pursuant to the Federal Tort Claims Act
("FTCA"), 28 U.S.C. 2671 et seq., claiming that the United
States Department of Veterans' Affairs ("VA") negligently
failed to diagnose and treat Solis Rivera's prostate gland
cancer. Plaintiffs appeal from the district court's
dismissal of the case without prejudice for lack of
prosecution.
I.
Plaintiffs filed their complaint on August 19,
1991. On February 13, 1992, the government filed a motion to
dismiss the complaint, arguing that plaintiffs had improperly
filed their administrative claim in the name of Jose Solis
Rivera and his heirs, rather than in the name of Solis
Rivera's estate or in the names of the plaintiffs
individually as his heirs. Plaintiffs did not respond to the
government's motion to dismiss within ten days of service, as
required by Local Rule 311.5 of the District of Puerto Rico.
On March 23, 1992, after more than a month had passed since
service of the motion to dismiss, the district court entered
an order dismissing the complaint with prejudice for failure
to diligently prosecute the action. A judgment dismissing
the case was entered on March 31.
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Plaintiffs thereafter filed a motion to vacate and
set aside the court's order and a motion to reconsider the
judgment. In the motions, plaintiffs' attorney explained
that he thought the district court, during a February 7
status conference, had approved a thirty-day period to answer
the government's proposed motion to dismiss. Plaintiffs'
attorney further explained that he had been busy with another
case for three weeks, and asked the court to impose a less
severe sanction than dismissal with prejudice in light of the
isolated nature of his dilatory action.
On May 29, 1992, the district court granted
plaintiffs' request to vacate and set aside its prior order
dismissing the case. On the same day, the court granted to
the government fifteen days to file a detailed memorandum of
law in support of the motion to dismiss that it had filed on
February 13. Plaintiffs were given ten days to respond.
On June 12, 1992, in compliance with the order, the
government filed the more detailed memorandum of law in
support of its motion to dismiss. On June 23, plaintiffs
requested an additional five days to respond ostensibly
because plaintiffs' attorney was unable to find in his files
a contemporaneous motion to dismiss. The government contends
that it subsequently informed plaintiffs' attorney that a
copy of the motion to dismiss filed on February 13, 1992 was
to accompany its memorandum of law of June 12. The
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government faxed a copy of the motion to dismiss to
plaintiffs' attorney on June 24.
Approximately a month passed with no response from
plaintiffs. On July 29, 1992, the government filed a motion
to adjudicate, asking the court to dismiss the case with
prejudice because plaintiffs had failed to respond to its
motion to dismiss twenty-nine business days after they filed
a request for an extension.
On August 10, 1992, plaintiffs filed a motion
opposing the government's motion to adjudicate. Plaintiffs'
attorney claimed he was not informed until July 16 that he
was not missing any of the government's pleadings, and that
he had been busy with another jury trial, but expected to
complete an opposing memorandum within a day or two. On
August 18, 1992, plaintiffs finally filed a memorandum
opposing the government's motion to dismiss.
By that time, however, the district court had
already entered an order dated August 12 dismissing the case
with prejudice for lack of prosecution. Judgment was entered
on August 19, 1992.
On August 25, plaintiffs filed a motion for
reconsideration. They argued that (1) they had filed their
memorandum on August 18, before receiving the court's order
dated August 12 and before judgment was entered; and (2) the
essentials of plaintiffs' opposition to the government's
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motion to dismiss had been tendered in plaintiffs' March 27
motion to vacate.
On October 22, 1992, the district court issued an
order denying plaintiffs' motion for reconsideration, but
modifying the August 12, 1992 order to dismissal without
prejudice. Plaintiffs appeal from the district court's
October 22, 1992 order dismissing the case without prejudice.
II.
Rule 41(b) of the Federal Rules of Civil Procedure
expressly authorizes a district court to dismiss a case
"[f]or failure of the plaintiff to prosecute or comply with .
. . any order of court." Dismissal with prejudice is a
"harsh sanction," Richman v. General Motors Corp., 437 F.2d
196, 199 (1st Cir. 1971), which "should be employed only when
a plaintiff's misconduct has been extreme," Figueroa Ruiz v.
Alegria, 896 F.2d 645, 647 (1st Cir. 1990), and "only after
the district court has determined 'that none of the lesser
sanctions available to it would truly be appropriate,'"
Enlace Mercantil Int'l, Inc. v. Senior Indus., Inc., 848 F.2d
315, 317 (1st Cir. 1988). A finding of extreme misconduct is
justified if there is extremely protracted inaction,
disobedience of court orders, ignorance of warnings,
contumacious conduct, Cosme Nieves v. Deshler, 826 F.2d 1, 2
(1st Cir. 1987), or "some other aggravating circumstance such
as 'prejudice to the defendant, glaring weaknesses in the
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plaintiff's case, and the wasteful expenditure of a
significant amount of the district court's time.'" Figueroa
Ruiz, 896 F.2d at 648 (quoting Enlace Mercantil, 848 F.2d at
317). We review a district court's dismissal for lack of
prosecution only for an abuse of discretion. E.g., Figueroa
Ruiz, 896 F.2d at 647.
Plaintiffs contend that the district court's
dismissal without prejudice is the functional equivalent of a
dismissal with prejudice since the six-month statute of
limitations authorized in the FTCA, 28 U.S.C. 2401(b),
(providing in substance that, in an FTCA case, suit must be
"begun within six months after the date of mailing . . . of
notice of final [administrative] denial of the claim") had
long since passed and there appears to be no likelihood of
equitable tolling. See de Casenave v. United States, No. 92-
2102, slip op. at 6 (1st Cir. April 20, 1993) (where
plaintiffs' initial lawsuit was dismissed for failure to
abide by discovery orders, and record contains no evidence of
misconduct on part of government, court "discern[s] no basis
under which the district court could have applied equitable
principles" to toll FTCA's six-month statute of limitations);
Pipkin v. United States Postal Service, 951 F.2d 272, 274
(10th Cir. 1991) (refusing to toll FTCA six-month limitations
period during filing of previous FTCA lawsuit which was
dismissed without prejudice for failure to prosecute).
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Plaintiffs argue that their dilatory conduct was not so
egregious as to justify what is, in effect, the ultimate
sanction of dismissal with prejudice.
The district court may, indeed, have been unaware
that the applicable statute of limitations had expired. The
court's October 22 modification of its August 12 order
dismissing the case from "with prejudice" to "without
prejudice" suggests that the court may have felt that
plaintiffs were in a position to refile their case. Such a
belief on the court's part would be understandable given
plaintiffs' counsel's neglect, either before or after October
22, 1992, to point out to the court their limitations
problem.
Resolution of this appeal is not altogether simple.
Plaintiffs' attorney's failure on two occasions to respond to
plain deadlines was egregious. If the district court had
dismissed with prejudice in these circumstances, we could not
say it had abused its discretion. However, by finally
dismissing without prejudice, the district court seems to
have indicated a merciful wish not to visit counsel's
dereliction upon the heads of plaintiffs by barring the
action altogether. A district court, which has direct and
continuous contact with attorneys, is best able to judge in
the first instance whether an attorney's misconduct is
sufficiently egregious to warrant the "death knell" of a
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lawsuit, see Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118
(1st Cir. 1989), or whether some lesser sanction would be
more appropriate.
Given the district court's action in changing the
dismissal from "with" to "without" prejudice, we are
persuaded to remand to the same district judge to allow him
to decide whether, given the surfacing of the statute of
limitations problem, he wishes to give plaintiffs a further
chance by allowing the present action to proceed. In so
remanding, we may be criticized for overlooking plaintiffs'
failure to have raised the limitations problem below. This
court will not ordinarily consider a matter not first
presented to the district court. E.g., Boston Celtics Ltd.
Partnership v. Shaw, 908 F.2d 1041, 1045 (1st Cir. 1990).
Still, we think the district court is better positioned than
ourselves to determine the course of justice here. We,
therefore, vacate and remand, but emphasize that we leave the
choice entirely in the hands of the district court, which may
either choose to confirm the "death knell" of this action by
reentry of its previous or some other dismissal order, or
else allow the case to proceed. If the district court allows
the case to proceed, the court may wish to assure itself
either that present counsel will in the future act
responsibly or that new counsel will be substituted by
plaintiffs. The court may also consider whether to impose,
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as a condition to allowing the case to go forward, pecuniary
sanctions, to be paid by present counsel personally, and to
see that present counsel does not bill its own clients for
time related to its ineffective and annoying conduct to date.
Vacated and remanded for further proceedings in
accordance herewith. Costs to appellee, to be paid
personally by appellant's counsel.
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