United States Court of Appeals
For the First Circuit
No. 02-1958
DAVID A. YOUNG,
Plaintiff, Appellant,
v.
KENNETH GORDON ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, Senior U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, and Porfilio,* Senior Circuit Judges.
William E. Conner on brief for appellant.
Kenneth I. Gordon, pro se ipso, on brief for appellee Gordon.
James Romeyn Davis, pro se ipso, and Sheldon, Davis & Wells,
PC on brief for appellee Davis.
June 3, 2003
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*Of the Tenth Circuit, sitting by designation.
SELYA, Circuit Judge. On January 29, 2001, plaintiff-
appellant David A. Young brought suit against two fellow attorneys,
Kenneth Gordon and J.R. Davis, for breach of contract and tortious
interference with business relationships. After nearly sixteen
months of acrimonious pretrial skirmishing, the district court
dismissed the action, citing Young's repeated failures to comply
with court orders. The court subsequently denied his motion for
reconsideration. Young appeals. We affirm.
The relevant background facts largely relate to matters
of procedure and timing. On May 22, 2001 (about eleven weeks after
Young filed suit), the district court convened a scheduling
conference. See Fed. R. Civ. P. 16. The court ordered the parties
to submit a joint statement within thirty days. See D. Mass. R.
16.1(d) (requiring "a joint statement containing a proposed
pretrial schedule," including, inter alia, a discovery plan and a
schedule for the filing of motions). Despite two letters from the
defendants seeking his participation in preparing the requested
statement, Young did nothing. The court eventually accepted the
defendants' unilateral version of the statement and set June 30,
2002, as the cut-off date for pretrial discovery.
In addition to answering Young's amended complaint, the
defendants counterclaimed. Although Young did not respond to these
counterclaims, the district court twice rebuffed defense motions
for entry of default. Finally, the court, acting sua sponte,
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ordered Young to answer the counterclaims within twenty days or
face the dismissal of his action. Young complied.
Over time, Young filed five motions to compel discovery,
all of which were denied. Gordon filed three motions to compel,
all of which were granted. Despite the court's serial orders,
Young's discovery responses remained anemic. On April 1, 2002,
Gordon moved to dismiss under Fed. R. Civ. P. 37(b)(2)(C). The
district court denied the motion.
The Nation was girding for war and, on May 3, Young's
counsel told the defendants that Young, an officer in the Army
Reserve, might be "called up at any time." On Young's initiative,
the parties agreed to take Gordon's deposition on June 10 and
Young's on June 12. In early June, however, Young reneged; he
declared that he would not appear, even if ordered by the court,
unless Gordon's deposition could be completed in one day (an
unlikely prospect). This volte-face led the defendants to file an
emergency motion to compel adherence to the previously agreed
deposition schedule. On June 10, the court granted the motion and
ordered Young to appear for his deposition within seven days or
face summary dismissal of his action.
Young chose not to appear. Instead, he filed a motion to
reconsider on June 13, in which he informed the court that his
counsel's mother had died during the preceding week. The court was
unimpressed; although the death had occurred and Young's attorney
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had traveled out of state for the funeral, he had returned to
Massachusetts by June 11 (prior to the filing of the motion to
reconsider), and, despite offers from the defendants to reschedule
his deposition for dates after the expiration of the seven-day
period, Young had declared himself unavailable. Not surprisingly,
the district court denied the motion to reconsider.
On June 18, the defendants again moved to dismiss
pursuant to Rule 37(b)(2)(C).1 Young opposed the motion but did
not offer any date on which he would agree to sit for his
deposition. On June 25, the district court dismissed the case
based on Young's failure to comply with the June 10 order. The
court characterized Young's defiance as his "third such violation
of a Court Order."
Coincidentally, Young began his deposition on June 26 (a
day after the court had dismissed his action, but before the
parties had received notice of the dismissal order). The
deposition was not completed on that date and, in view of the
court's order, was never resumed. On July 8, Young moved to
reconsider the dismissal, pointing out that he had finally made
himself available to be deposed. On July 9, the district court
denied the motion. This appeal ensued.
1
The rule states in pertinent part that if a party fails to
obey an order to provide or permit discovery, the court may impose
sanctions (including an order "dismissing the action or proceeding
or any part thereof, or rendering a judgment by default against the
disobedient party . . . ."). Fed. R. Civ. P. 37(b)(2)(C).
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Before we reach the merits, we pause to consider the
defendants' attempt to shelve the appeal on procedural grounds.
This endeavor has two aspects. First, the defendants strive to
persuade us that Young's notice of appeal was untimely. We are not
convinced.
In a civil case in which the United States is not a
party, a notice of appeal ordinarily must be filed within thirty
days following the entry of final judgment. See Fed. R. App. P.
4(a)(1); see also Air Line Pilots Ass'n v. Precision Valley
Aviation, Inc., 26 F.3d 220, 223 (1st Cir. 1994). As the
defendants correctly note, Young's notice of appeal was not
docketed until July 29, 2002 — more than thirty days after the
entry of the June 25 judgment. The defendants view the passage of
time as fatal, but they are reading the record through rose-colored
glasses.
In particular, the defendants fail to appreciate the
significance of Young's timely motion for reconsideration. Under
our precedents, we may treat that motion as filed under Fed. R.
Civ. P. 59(e) (which allows the filing of a post-trial motion to
alter or amend a judgment). See, e.g., Cintrón-Lorenzo v.
Departamento De Asuntos Del Consumidor, 312 F.3d 522, 525 n.3 (1st
Cir. 2002); Batiz Chamorro v. P.R. Cars, Inc., 304 F.3d 1, 3-4 (1st
Cir. 2002). Such a motion tolls the running of the appeal period
as long as it is filed no later than ten days after entry of the
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judgment.2 See Fed. R. App. P. 4(a)(4); Fed. R. Civ. P. 59(e).
Thereafter, an order disposing of the motion restarts the appeal
period. Air Line Pilots Ass'n, 26 F.3d at 223. Because the appeal
period began anew upon the district court's denial of his Rule
59(e) motion, Young's notice of appeal was filed within the
allotted thirty-day interval.
The defendants' second procedural ground is equally
unavailing. They argue that Young's notice of appeal, which only
references the denial of the motion for reconsideration, does not
suffice to bring the dismissal order before us. See Fed. R. App.
P. 3(c) (requiring, inter alia, that a notice of appeal "designate
the judgment, order, or part thereof appealed from"). Under the
case law, this boils down to a question of whether, notwithstanding
the opaque language of the notice, the appellant's intent to appeal
the underlying judgment was clear. E.g., Smith v. Barry, 502 U.S.
244, 248 (1992); Mariani-Giron v. Acevedo-Ruiz, 945 F.2d 1, 3 (1st
Cir. 1991). There is no need to belabor the point. It suffices to
say that, upon whole-record review, Young's desire to appeal from
the underlying judgment is sufficiently plain and that, in any
event, the defendants were not misled by the inartfully drafted
notice of appeal. We therefore reject the argument that the scope
2
The ten-day period is computed without counting weekends and
holidays. See Fed. R. Civ. P. 6(a); see also Roque-Rodriguez v.
Lema Moya, 926 F.2d 103, 107 (1st Cir. 1991). On this basis, Young
had until July 10 to file his Rule 59(e) motion. The motion was,
therefore, timely.
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of this proceeding should be limited to the denial of the motion
for reconsideration. See, e.g., Foman v. Davis, 371 U.S. 178, 181-
82 (1962); Batiz Chamorro, 304 F.3d at 4; Town of Norwood v. New
Engl. Power Co., 202 F.3d 408, 415 (1st Cir. 2000).
We now proceed to the heart of the matter: the propriety
of the dismissal. We begin our analysis with the unarguable
proposition that courts cannot effectively administer justice
unless they are accorded the right to establish orderly processes
and manage their own affairs. Chambers v. NASCO, Inc., 501 U.S.
32, 43 (1991). The authority to order sanctions in appropriate
cases is a necessary component of that capability. HMG Prop.
Investors, Inc. v. Parque Indus. Rio Canas, Inc., 847 F.2d 908, 916
(1st Cir. 1988) (remarking that "[c]ourts cannot function if
litigants may, with impunity, disobey lawful orders"). The
sanction of dismissal is an important part of the armamentarium
that the law makes available to trial courts. See Link v. Wabash
R.R. Co., 370 U.S. 626, 630-31 (1962). Moreover, in the federal
system the Civil Rules reinforce and augment the inherent power of
district courts to dismiss cases for disregard of judicial orders.
See, e.g., Fed. R. Civ. P. 37(b), 41(b).
To be sure, dismissal ordinarily should be employed as a
sanction only when a plaintiff's misconduct is extreme. See Enlace
Mercantil Internacional, Inc. v. Senior Indus., Inc., 848 F.2d 315,
317 (1st Cir. 1988). We have recognized, however, that
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disobedience of court orders is inimical to the orderly
administration of justice and, in and of itself, can constitute
extreme misconduct. Tower Ventures, Inc. v. City of Westfield, 296
F.3d 43, 46 (1st Cir. 2002); Cosme Nieves v. Deshler, 826 F.2d 1,
2 (1st Cir. 1987). Still, dismissal should not be viewed either as
a sanction of first resort or as an automatic penalty for every
failure to abide by a court order. When noncompliance occurs, the
ordering court should consider the totality of events and then
choose from the broad universe of available sanctions in an effort
to fit the punishment to the severity and circumstances of the
violation. See Tower Ventures, 296 F.3d at 46.
In the last analysis, the choice of an appropriate
sanction must be handled on a case-by-case basis. See id.; see
also Robson v. Hallenbeck, 81 F.3d 1, 2 (1st Cir. 1996) (explaining
that this exercise "def[ies] mechanical rules"). For that reason,
appellate panels traditionally give district courts considerable
leeway in the exercise of the latter's admitted authority to punish
noncompliant litigants. E.g., Batiz Chamorro, 304 F.3d at 4. It
follows that "the trier's determination to dismiss a case for such
a reason should be reviewed only for abuse of discretion." Aoude
v. Mobil Oil Corp., 892 F.2d 1115, 1117 (1st Cir. 1989). In
undertaking that review, we consider all the pertinent
circumstances and balance a myriad of factors, including the trial
court's need to maintain order and prevent undue delay, the
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prejudice (if any) to the offender's adversary, and the salutary
policy favoring the disposition of cases on the merits. See HMG
Prop., 847 F.2d at 917; Richman v. Gen. Motors Corp., 437 F.2d 196,
199 (1st Cir. 1971). This standard of review is not appellant-
friendly — and a sanctioned litigant bears a weighty burden in
attempting to show that an abuse occurred. See Tower Ventures, 296
F.3d at 46; Spiller v. U.S.V. Labs., Inc., 842 F.2d 535, 537 (1st
Cir. 1988).
In this instance, the court dismissed the case because
Young, having been forewarned of the likely consequences of
noncompliance, failed to abide by a court order to appear for a
deposition within seven days. Young admits the infraction but
argues that it was beyond his control. In this regard, he points
to his status as an officer in the United States Army Reserve and
contends that he could not commit to a deposition because he was on
the verge of being "shipped out at any time." This contention will
not wash. The fact of the matter is that Young received no such
marching orders at any time during the spring of 2002. We fail to
see how the possibility of impending military service prevented him
from complying with the court's ukase.
Next, Young asseverates that his attorney was compelled
to travel out of state due to a death in the family. That is true
as far as it goes, but it does not go very far. This asseveration
overlooks the undeniable fact that the attorney returned to
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Massachusetts on June 11, 2002. As of that date, Young still had
ample time to comply with the court's order. He did not do so.
Young also maintains that the sanction was too harsh
because he was acting in good faith. This is at best a debatable
question — and one on which the district court had the better coign
of vantage. At any rate, a finding of bad faith is not a condition
precedent to imposing a sanction of dismissal. See, e.g., Reg'l
Refuse Sys., Inc. v. Inland Reclam. Co., 842 F.2d 150, 156 (6th
Cir. 1988); Farm Constr. Servs., Inc. v. Fudge, 831 F.2d 18, 21
(1st Cir. 1987). Certainly, the mere fact that a litigant or a
lawyer may have had other priorities does not constitute a
bulletproof excuse for noncompliance with a court order. See,
e.g., Batiz Chamorro, 304 F.3d at 5; Tower Ventures, 296 F.3d at 47
n.3; Pinero Schroeder v. FNMA, 574 F.2d 1117, 1118 (1st Cir. 1978)
(per curiam).
In all events, it is axiomatic that "a litigant who
ignores a case-management deadline does so at his peril." Rosario-
Diaz v. Gonzalez, 140 F.3d 312, 315 (1st Cir. 1998). The
circumstances here do not suggest that this case is a viable
candidate for a relaxation of this principle. For one thing, Young
had a documented history of disregarding the court's orders and/or
applicable rules. Among other errors, he refused to participate in
the framing of the joint statement; he did not respond to the
defendants' counterclaims until the court threatened to dismiss his
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case; and he did not provide adequate discovery responses despite
a series of orders compelling him to do so. For another thing, it
was Young who originally suggested a stipulation scheduling the
parties' depositions for June 10 and June 12 — and who then
reneged. Young's failure to achieve the time line that he himself
had recommended weighs heavily against him. Cf. Tower Ventures,
296 F.3d at 47 (explaining that "when a litigant seeks an extension
of time and proposes a compliance date, the court is entitled to
expect that the litigant will meet [his] self-imposed deadline");
Mendez v. Banco Popular de P.R., 900 F.2d 4, 6 (1st Cir. 1990)
(similar).
Young next calls our attention to the acrimony that
permeated the litigation. Because the matter was so contentious,
he asserts, every attempt to schedule depositions became a pitched
battle in a seemingly endless war. This may be true but it is
hardly exonerative. Since Young himself contributed significantly
to the bellicose nature of the proceedings, he scarcely can be
heard to advance fractiousness as a reason for disregarding the
judge's directives. Cf. Hosea 8:7 (warning that those who "have
sown the wind . . . shall reap the whirlwind").
Young's last two arguments are interrelated. First, he
protests that he ultimately did comply with the court's order when
he began to give his deposition on June 26 (nine days after the
expiration of the court-imposed deadline for his appearance). This
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importuning misses the mark. Young's violation of a time-specific
order was not cured by subsequent compliance at his leisure. See
Serra-Lugo v. Mayaguez Consortium-Las Marias, 271 F.3d 5, 6 (1st
Cir. 2001) (per curiam) (affirming dismissal notwithstanding
appellant's belated compliance with the court's order in "a
somewhat relaxed manner"). At the very least, such violations
undermine the court's efforts to manage its docket efficiently and
effectively. See Tower Ventures, 296 F.3d at 46 (explaining the
centrality of scheduling orders in the case-management process and
noting that "a party's disregard of such orders robs them of their
utility"); Rosario-Diaz, 140 F.3d at 315 (discussing a party's
"unflagging duty to comply with clearly communicated case-
management orders").
Relatedly, Young makes a "no harm, no foul" argument:
because the parties began to take the deposition before they knew
of the dismissal, he posits, the sanction was unnecessary. But
this narrow assessment overlooks that the court has an
institutional interest in ensuring compliance with its orders.
Given that interest, a court is not obliged to tolerate a party's
disdain for court-imposed deadlines. As we wrote two decades ago,
"[i]f such conduct were condoned by a slap on the wrist . . . the
district court . . . might well find the lawyers calling the tune
on discovery schedules." Damiani v. R.I. Hosp., 704 F.2d 12, 16
(1st Cir. 1983) (footnote omitted).
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Then, too, there is another integer in this equation.
Sanctions often are intended to do more than calibrate the scales
between a particular plaintiff and a particular defendant. One
principal purpose is to deter others from similar misconduct. See
Nat'l Hockey League v. Metro. Hockey Club, 427 U.S. 639, 643
(1976); Barreto v. Citibank, N.A., 907 F.2d 15, 16 (1st Cir. 1990).
When a party flouts a time-specific order, that purpose is
frustrated unless the court sends a strong signal. Imposing a
meaningful sanction delivers just such a message.
We need go no further. In view of the history, travel,
and circumstances of the case, there is no principled way that we
can upbraid the district court for following through on its
explicit warning to dismiss the action if Young did not adhere to
the deposition order. And because the court acted well within its
discretion in dismissing the case, it necessarily follows that it
did not err in refusing reconsideration. See Batiz Chamorro, 304
F.3d at 7.
Affirmed.
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