April 5, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-2169
BENJAMIN HERNANDEZ, ET AL.,
Plaintiffs, Appellants,
v.
JOSE HERNANDEZ-COLON, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
Before
Torruella, Chief Judge,
Selya and Boudin, Circuit Judges.
Peter John Porrata on brief for appellants.
Per Curiam. Plaintiffs-appellants Benjamin
Hernandez and Liduvina Silva appeal the district court's
denial of their motion pursuant to Fed. R. Civ. P. 60(b),
seeking relief from the court's sua sponte dismissal of their
complaint for failure to prosecute pursuant to Fed. R. Civ.
P. 41(b). We reverse and remand for proceedings consistent
with this opinion.
As the district court did not provide otherwise,
its dismissal was with prejudice and on the merits. See
LeBeau v. Taco Bell, Inc., 892 F.2d 605, 607 (7th Cir. 1989)
(dismissal for want of prosecution was on the merits and
"with prejudice" where judgment did not "otherwise state");
Nagle v. Lee, 807 F.2d 435, 442-43 (5th Cir. 1987) (where
judgment did not state whether it was without prejudice, Rule
41(b) requires court to treat dismissal as being with
prejudice and on the merits).
We review dismissals pursuant to Rule 41(b) for
abuse of discretion. Pinero Capo v. United States, 7 F.3d
283, 284 (1st Cir. 1993). We normally respect, and
encourage, the efforts of district courts to manage their
dockets decisively. Still, in this instance, the unrebutted
information in the record indicates that the plaintiffs were
prosecuting their case and had not disregarded any rule or
order. Although this may not have been clear at the time
that the district court dismissed the action sua sponte, the
facts were brought out on the Rule 60(b) motion.
Only 91 days passed between the filing of the
complaint and its dismissal by the district court.
Plaintiffs had not disobeyed any court orders or ignored any
warnings, since none had been issued. Compare Pinero Capo, 7
F.3d at 284 (affirming Rule 41(b) dismissal where appellants
had repeatedly violated discovery orders despite clear
warnings that dismissal would result and the court had first
imposed lesser sanctions). Nor had appellants violated any
procedural rules. Although plaintiffs failed to serve
defendants during that 91-day period, Fed. R. Civ. P. 4(m)
and Local Rule 313.1(A) permit service to be made within 120
days of the filing of a complaint. Cf. Jardines Bacata, Ltd.
v. Diaz-Marquez, 878 F.2d 1555, 1560 (1st Cir. 1989) (holding
that it was an abuse of discretion to dismiss case against
certain defendants for lack of prosecution where plaintiffs
had complied with D.P.R.L.R. 313.1(B)).
This case is not before us on direct appeal of the
dismissal order, however. It is an appeal from the district
court's denial of plaintiffs' Rule 60(b) motion. Rule 60(b)
provides, in relevant part, as follows:
On motion and upon such terms as are
just, the court may relieve a party or
party's legal representative from a final
judgment, order or proceeding for the
following reasons: (1) mistake,
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inadvertence, surprise, or excusable
neglect . . . .
We review denials of Rule 60(b) motions for abuse of
discretion. de la Torre v. Continental Ins. Co., 15 F.3d 12,
14 (1st Cir. 1994). "[T]he trial court's exercise of
discretion must be colored by a recognition that, because
Rule 60(b) is a vehicle for 'extraordinary relief,' motions
invoking the rule should be granted 'only under exceptional
circumstances.'" Id. (citations omitted).
Although plaintiffs failed to specify the section
of Rule 60(b) upon which they relied, it is apparent that
they sought relief for the reason of their "excusable
neglect" of their case. The Rule 60 motion referred to
"personal problems" between appellants (who are married) that
had hampered their ability to communicate with their
attorney, leading to their attorney's withdrawal and,
ultimately, to the dismissal of the complaint for failure to
prosecute. Plaintiffs also stated in their Rule 60(b)
motion, which was filed by the same attorney who had
previously withdrawn, that they had begun discovery and that
the delay in serving the summonses resulted from a tactical
decision to take depositions before completing service.
Ordinarily, we do not look with favor on the use of
a Rule 60(b) motion to perform the office of a motion under
Rule 59(e), which is subject to a 10-day limitation. On the
other hand, the dismissal in this case was without prior
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warning and followed immediately upon the heels of the
withdrawal by plaintiffs' attorney. Nor is there any
evidence of prejudice from the delay. Under all of these
circumstances, we conclude that the Rule 60(b) motion should
have been granted. See Carter v. United States, 780 F.2d 925
(11th Cir. 1986) (reversing denial of Rule 60(b) motion
seeking relief from Rule 41(b) dismissal under similar
circumstances); see also Link v. Wabash Railroad Co., 370
U.S. 626, 632 (1962) (noting that the lack of prior notice of
Rule 41(b) dismissal for lack of prosecution is "of less
consequence" given "the escape hatch provided by Rule
60(b).")
We intend no criticism of the able district judge
who, at the time of the dismissal, could easily have believed
that the case was not being seriously pursued by the
plaintiffs. But in light of the subsequent information
provided, we do not think that the dismissal can stand.
Plaintiffs are now on notice that they must pursue their case
seriously and without further delay.
For the foregoing reasons, the district court's
denial of the Rule 60(b) motion is reversed and the case is
remanded to the district court for proceedings consistent
with this opinion.
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