UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1432
JOSE ANTONIO PI ERO CAPO, etc., et al.,
Plaintiffs, Appellants,
v.
UNITED STATES OF AMERICA,
Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, U.S. District Judge]
Before
Cyr, Circuit Judge,
Bownes, Senior Circuit Judge,
and Boudin, Circuit Judge.
Rafael A. Oliveras Lopez for appellants.
Maria Hortensia Rios Gandara, Assistant United States Attorney,
with whom Charles E. Fitzwilliam, United States Attorney, was on brief
for appellee.
October 20, 1993
Cyr, Circuit Judge. Appellants brought this medical
Cyr, Circuit Judge.
malpractice action in the United States District Court for the
District of Puerto Rico on April 15, 1991. Thereafter, appel-
lants repeatedly violated various discovery-related orders duly
entered by the district court. On November 10, 1992, following
numerous requests and three unsuccessful motions to compel
discovery, the appellee moved for sanctions against appellants,
including the dismissal of all their claims, with prejudice. See
Fed. R. Civ. P. 41(b). On March 15, 1993, almost two years after
its commencement, the district court dismissed the action, with
prejudice, due to appellants' "consistent failure to diligently
prosecute their claims despite the specific deadlines set by the
Court to respond to interrogatories and furnish discovery related
to expert witnesses." Appellants did not move for reconsidera-
tion, but chose to seek appellate relief. We affirm.
We review Rule 41(b) dismissals for abuse of discre-
tion. Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1117 (1st Cir.
1989). After careful consideration of all relevant circumstanc-
es, under the "open-ended balancing test" appropriate in these
matters, Figueroa Ruiz v. Alegria, 896 F.2d 645, 648 (1st Cir.
1990), we conclude that the district court did not abuse its
discretion. We do so in light of appellants' repeated failures
to comply with reasonable discovery requests and with discovery
orders, notwithstanding the district court's clear warnings that
dismissal could
result; the unsuccessful efforts by the district court to assure
compliance by imposing, in the first instance, the lesser sanc-
tion of a $300 fine against appellants' counsel; the months of
delay, and the many motions and conferences before the district
court, occasioned by their dilatory conduct; their counsel's
failure either to take appropriate action in a timely manner or
to present to the district court many of the belated justifica-
tions urged on appeal. In addition, the justifications belatedly
proffered on appeal, credited at face value, provide no explana-
tion for the final two-month delay (January to March 15, 1993)
during which counsel concededly was able to function as counsel
yet failed to comply with the district court's longstanding
discovery orders. Finally, even now counsel offers no explana-
tion for failing to request reconsideration of the district court
dismissal order entered March 15, 1993.
The crux of appellants' argument on appeal is that
their counsel's medical problems prevented him from functioning
as a lawyer. Unfortunately for appellants, this claim presents
too little, too late, to the wrong court. The dilatory behavior
extended at least from February through November, 1992, not-
withstanding that the district court warned of possible dismissal
in March and May, 1992, after having ordered a $300 fine as a
sanction against appellants' counsel.1 Nevertheless, not until
1At a status conference in August 1992, the court also
warned of the possible dismissal of the claims of appellants
Maria de los Angeles and Jose Ivan Pi ero Rivera. The dismissal
of their claims is no longer challenged.
3
December 3, 1992, did appellants' counsel explain to the district
court in an "informational motion" that he had been incapacitated
from October 15 to November 24, 1992. At best, this would excuse
five and one-half weeks of a sustained ten-month delay, and no
sufficient reason is suggested for the failure to prosecute
during other periods. The failure to take any further action in
the district court after the filing of the December, 1992 infor-
mational motion is particularly egregious. Yet even crediting
all representations made by appellants' counsel at oral argument
on appeal, no explanation has been suggested for the final two-
month delay between January and March 15, 1993, or for the
failure to request reconsideration of the dismissal order.
Although we are not unsympathetic to appellants' plight in this
case, we cannot conclude that the district court abused its
discretion by dismissing their claims by reason of their coun-
sel's abject failure to prosecute.2
Affirmed.3
Affirmed.
2In these egregious circumstances, we must heed our own
admonition and "the teaching of the Court in Link v. Wabash
Railroad Co., 370 U.S. 626 (1962), that the acts or omissions of
counsel are visited upon the client[,]" United States v. One Lot
of $25,721.00 in Currency, 938 F.2d 1417, 1422 (1st Cir. 1991);
see also Corchado v. Puerto Rico Marine Management, Inc., 665
F.2d 410, 413 (1st Cir. 1981), cert. denied, 459 U.S. 826 (1982).
Of course, this means that appellants will be left to their
remedies against counsel.
3We direct the Clerk to provide the clerk of the district
court with a copy of this opinion, in order that copies (and
Spanish translations) may be mailed directly to each appellant by
the district court.
4