United States Court of Appeals
For the First Circuit
No. 02-1982
IRMA E. BACHIER-ORTIZ, ET AL.,
Plaintiffs, Appellants,
v.
HECTOR L. COLON-MENDOZA, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Selya, Lipez and Howard,
Circuit Judges.
Francisco R. Gonzalez on brief for appellants.
Eileen Landron Guardiola, Eduardo A. Vera Ramirez and Landron
& Vera, Francisco L. Acevedo Nogueras and Acevedo Nogueras & Pagan,
on brief for appellees.
June 12, 2003
Per Curiam. Plaintiff-appellant Irma Bachier-Ortiz brings
this appeal from the summary dismissal of her action pursuant to 42
U.S.C. §1983 against Hector L. Colon-Mendoza, mayor of Guayama,
various other individuals, and the Municipality of Guayama. The
district court summarily dismissed her case after her counsel
failed (a) to meet with opposing counsel to draft a proposed
pretrial order, and (b) to attend the pretrial conference. Counsel
made a timely motion for reconsideration, stating that human error
in calendar-keeping led to his being unaware of the dates for the
meeting and conference, and, as a result, that he had been out of
Puerto Rico for follow-up cancer treatment and for his son's
graduation from college. He requested that the court employ
sanctions against him rather than the remedy of dismissal.
We review the district court's dismissal of a case as a
sanction for abuse of discretion. See Velazquez-Rivera v. Sea-Land
Serv., Inc., 920 F.2d 1072, 1075 (1st Cir. 1990). We do not
lightly disturb a district court's ruling -- but "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."
Young v. Gordon, ___F.3d __, __ (1st Cir. 2003) [No. 02-1958, slip.
op. at 8]. When non-compliance occurs, both the nisi prius court
and the court of appeals must look to the totality of the
circumstances. See id.; see also Tower Ventures, Inc. v. City of
Westfield, 296 F.3d 43, 46 (1st Cir. 2002). In all events, we do
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not merely rubber-stamp a district court's imposition of the
ultimate sanction of dismissal.
In general, the sanction of dismissal for lack of prosecution
is appropriate only when plaintiff's misconduct is serious,
repeated, contumacious, extreme, or otherwise inexcusable. See
Batiz Chamorro v. P. R. Cars, Inc., 304 F.3d 1, 5 (1st Cir. 2002).
When a dismissal is based on a pattern of delay or willful
behavior, this court typically has found no abuse of discretion in
a district court's order of dismissal. See Young, __ F.3d at __
[No. 02-1958 slip op. at 9]; Batiz Chamorro, 304 F.3d at 5; Tower
Ventures, 296 F.3d at 46. But when an isolated incident appears to
have been the sole basis for the dismissal, we have sometimes
vacated the order (as long as some plausible excusatory
circumstances exist). E.g. Crossman v. Raytheon Longterm Disab.
Plan, 316 F.3d 36, 39 (1st Cir. 2002); Velazquez-Rivera, 920 F.2d
at 1076-77.
In this case, the district court gave as its reason for
dismissal only that counsel missed a meeting to draft the proposed
pretrial order and the associated pretrial conference. The court
did not question the sincerity of the explanation advanced by
plaintiff's counsel for the lapse. This case has not, so far as we
can discern, been marred by any persistent disregard of court
orders, deliberate stalling, or repeated nonchalance. This case
has not been unreasonably delayed. By the same token, the opposing
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parties have not been prejudiced; in fact, they had moved twice for
postponement of the pretrial conference. We conclude, therefore,
that Crossman and Velazquez control the result here: counsel's
single, negligent failure to calendar the pretrial order deadline
and the associated pretrial conference does not sink to a level of
behavior warranting the ultimate sanction of dismissal.
We need go no further. In light of the foregoing, we grant
the appellees' motion to submit this case for decision without oral
argument. See 1st Cir. R. 34. We summarily vacate the order of
dismissal and remand to the district court for further proceedings.
We envision that the district court, in its discretion, may impose
some lesser sanction on the plaintiff or on her attorney in lieu of
the vacated dismissal.
Vacated and remanded. No costs.
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