Pomales v. Celulares Telefónica, Inc.

United States Court of Appeals
For the First Circuit

No. 03-1468

MAGDALENA POMALES,

Plaintiff, Appellant,

v.

CELULARES TELEFÓNICA, INC; VERIZON WIRELESS PUERTO RICO, INC.,

Defendants, Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jaime Pieras, Jr., U.S. Senior District Judge]

Before

Lynch, Lipez, and Howard, Circuit Judges.

Maricarmen Almodóvar Díaz and Lilliam Mendoza were on brief
for appellant.

Mariela Rexach-Rexach, José Dávila-Caballero, and Schuster
Usera & Aguiló LLP were on brief for appellees.

August 26, 2003
 LYNCH, Circuit Judge. Magdalena Pomales brought this

action against her employer for sexual harassment, discrimination

and retaliation. Shortly after discovery began, however, Pomales

fired her lawyer. The district court, having earlier warned that

it would not modify or extend its scheduling order, refused to

permit Pomales's counsel to withdraw until substitute counsel could

file an appearance. For four months, the litigation stalled; no

new counsel appeared, and Pomales failed to proceed with discovery

pro se. On January 13, 2003, the district court -- acting sua

sponte and without warning to Pomales -- dismissed her complaint

with prejudice for failure to prosecute. Pomales appeals.

While the question is admittedly a close one, we conclude

that it was not within the discretion of the district court to

dismiss with prejudice under the unique circumstances of this case.

Accordingly, we reverse.

I.

The facts of Pomales's sexual harassment and sex

discrimination claims are not pertinent to the issue on appeal and

need not be recited here. But because the district court's

dismissal for failure to prosecute requires us to decide whether

Pomales's conduct indicated a "lack of interest in vindicating

whatever rights [she] might have had," Zavala-Santiago v. Gonzalez-

Rivera, 553 F.2d 710, 713 (1st Cir. 1977), we recount the

procedural history of this litigation in some detail.

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 On December 27, 2000, less than a month after she was

fired from her job as a sales consultant for Celulares Telefónica,

Inc. (CTI), Pomales filed a charge of employment discrimination

with the government of Puerto Rico. She also initiated a labor

grievance under the terms of her collective bargaining contract.

One day later, she filed a charge of discrimination (predicated on

sexual harassment, sexual discrimination and retaliation) with the

Equal Employment Opportunity Commission (EEOC). After processing

her charge, the EEOC issued a right-to-sue letter to Pomales on

November 29, 2001.

On February 20, 2002, within the allotted ninety days of

receiving her right-to-sue letter, Pomales filed the instant action

against CTI. The complaint alleged sexual harassment, sex

discrimination, and retaliation in violation of Title VII, 42

U.S.C. §§ 2000e et seq.; the Civil Rights Act of 1991; 42 U.S.C.

§ 1981; and several Puerto Rico statutes. Pomales later amended

her complaint to include an action under § 606 of the Employment

Retirement Income Security Act (ERISA), 29 U.S.C. § 1166.

In the early phases of the case, Pomales prosecuted her

lawsuit. She sent her first set of interrogatories and her first

request for production of documents on April 25, 2002. On July 15,

she submitted her Initial Scheduling Conference Memorandum. She

also produced numerous documents to CTI. The Initial Scheduling

Conference was held on July 19, 2002, and Pomales's counsel duly

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attended. On August 7, 2002, the district court issued the

scheduling order for discovery and trial: depositions were to be

held in September and October; dispositive motions were due by

February 17, 2003; the pretrial conference was set for April 14;

and trial was scheduled for April 28. The court warned: "These

dates shall not be changed."

With the schedule thus set, Pomales continued actively to

prosecute her case. On August 8, 2002, she sent CTI her second

request for production of documents and her second set of

interrogatories. On August 19, she amended her complaint yet again

to add Verizon Wireless Puerto Rico, Inc., the successor company of

CTI, as a co-defendant. And on September 3, Pomales sat for the

first session of her scheduled deposition.

On September 18, however, Pomales requested that her

lawyer, Manuel Durán-Rodríguez, withdraw from the case.1 The next

day, Durán filed a motion requesting leave to withdraw and, if

leave were granted, that the court allow Pomales a reasonable

period to find a new lawyer. On October 8, the district court

denied the motion to withdraw. It ordered Durán to remain the

attorney of record until substitute counsel could enter an

appearance on Pomales's behalf. The court's order contained no

deadline for Pomales to find new counsel, nor did it caution

1
In her appellate brief, Pomales explains only that "[i]t had
become apparent . . . that the trust upon which the attorney-client
relationship is founded[] had been irreparably severed."

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Pomales that she was obligated to proceed with discovery regardless

of her ability to obtain new representation.

At this point, the litigation effectively stalled. The

scheduled depositions were postponed and the exchange of discovery

ceased. On November 15, over a month after Pomales dismissed her

lawyer, CTI filed a motion complaining of the delay in discovery

and asking that the court order Pomales "to announce new legal

representation within a reasonable time limit." CTI served this

motion both on Durán and on Pomales at her home address. Pomales

did not respond, however, and the district court did not act on the

motion. On November 27, Durán filed a second motion requesting

leave to withdraw. Durán explained that he could not continue to

represent Pomales, notwithstanding the court's order that he

continue as counsel of record, because Pomales had specifically

withdrawn authorization for him to act on her behalf and insisted

that her legal file be returned to her. A copy of this motion was

mailed to Pomales's home. The district court, however, did not

rule on the renewed plea for permission to withdraw.

On December 18, CTI filed a second motion requesting that

Pomales be ordered to announce new counsel, again serving the

motion on Pomales individually.2 By failing to retain new counsel,

CTI argued, Pomales had "singlehandedly stopped the discovery

2
In addition, CTI requested an extension of the deadline for
dispositive motions and the arrangement of a status conference
immediately upon the appointment of new counsel for Pomales.

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process and the proceedings in the captioned case." The district

court did not respond. On January 9, 2003, CTI filed an "urgent"

motion seeking an order that Pomales appear for the conclusion of

her deposition and respond to CTI's outstanding interrogatories and

requests for production of documents. CTI argued that Pomales's

conduct jeopardized its ability to comply with the court's February

17 deadline for dispositive motions. Like the others, this motion

was served on Pomales at her home address. CTI did not ask for

dismissal of the action.

On January 13, 2003, the district court acted, but

without ruling on any of the outstanding motions. Instead, the

court dismissed Pomales's complaint with prejudice, reasoning that

nearly four months had elapsed since the initial request for

withdrawal without any indication that Pomales could or would

secure new counsel:

Due to Plaintiff's failure to announce new counsel [or to
allow] her current counsel to represent her, Plaintiff
has stymied the entire discovery schedule this Court set
forth in its Initial Scheduling Conference Order. It is
for Plaintiff's complete disregard of this Court and its
orders and for her lack of prosecution that, pursuant to
Rule 41(b) of the Federal Rules of Civil Procedure, the
Court hereby DISMISSES the above captioned complaint WITH
PREJUDICE.

On January 24, Pomales, representing herself, moved to amend the

judgment to allow her six days to obtain new counsel. The court

did not act on this motion. On February 4, Pomales, now

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represented by new counsel, filed a motion to set aside the

judgment.

Attached to Pomales's February 4 motion was a sworn

statement in which she explained her failure to obtain new counsel.

According to the statement, Pomales had approached another attorney

about taking over her case in October 2002. The new attorney

indicated that he had another trial scheduled for April 2003, but

that he would contact the district court and attempt to postpone

Pomales's trial. In November 2002, the attorney contacted Pomales

and asked her to obtain certain documents related to her case.

Based on the new attorney's professed interest and his request for

documents, Pomales explained, she assumed that he had taken her

case and that he had filed, or soon would file, an appearance on

her behalf. On January 22, Pomales said, she called the attorney

to check on the status of her case, but he told her he had

forgotten about it and could not represent her. Pomales retrieved

her legal file from the attorney's office on January 23. On

January 24, she was "astonished" to receive by mail a copy of the

district court's order dismissing her case. She immediately went

to the federal courthouse and filed her pro se motion to amend the

judgment.

On February 25, 2003, the district court denied Pomales's

motion to set aside the judgment. The court did not comment on

Pomales's proffered explanations, resting instead on its original

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interpretation of Pomales's conduct: "Plaintiff's disregard for

this Court's rules and orders was apparent and was the basis for

the Court's dismissal of Plaintiff's claims. The Court stands by

its original analysis . . . ."

Pomales appeals both the dismissal of her complaint and

the denial of her motion to set aside the judgment.

II.

"The authority of a federal trial court to dismiss a

plaintiff's action with prejudice because of his failure to

prosecute cannot seriously be doubted." Link v. Wabash R.R., 370

U.S. 626, 629 (1962). This power, which is of "ancient origin,"

id. at 630, is a necessary component of the authority and

responsibility of the district courts to establish orderly

processes and manage their calendars. Young v. Gordon, 330 F.3d

76, 81 (1st Cir. 2003). Dismissal is but one of many sanctions

available for these purposes. See Zavala-Santiago, 553 F.2d at 712

n.1 (listing a variety of lesser sanctions including warnings,

fines, and imposition of costs and fees). Because the choice among

available sanctions "is a fact-specific matter within the ken of

the district court," Robson v. Hallenbeck, 81 F.3d 1, 2-3 (1st Cir.

1996), our review is only for abuse of discretion. See Chamorro v.

P.R. Cars, Inc., 304 F.3d 1, 4 (1st Cir. 2002).

Even so, as this court has often recognized, the sanction

of dismissal with prejudice for want of prosecution is a unique and

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awesome one, foreclosing forever the plaintiff's opportunity to

obtain judicial redress.3 See Ortiz-Anglada v. Ortiz-Perez, 183

F.3d 65, 67 (1st Cir. 1999) (describing dismissal with prejudice

for failure to prosecute as "drastic"); Velazquez-Rivera v. Sea-

Land Serv., Inc., 920 F.2d 1072, 1075-76 (1st Cir. 1990) ("the most

severe sanction"); Richman v. Gen. Motors Corp., 437 F.2d 196, 199

(1st Cir. 1971) ("a harsh sanction"). Disposition on the merits is

favored. Ortiz-Anglada, 183 F.3d at 66. Accordingly, while we do

not doubt that district courts possess the power to order dismissal

with prejudice in appropriate cases, "fairness requires that some

limits be placed on its use." Velazquez-Rivera, 920 F.2d at 1076.

Dismissal with prejudice for failure to prosecute is appropriate in

the face of "extremely protracted inaction (measured in years),

disobedience of court orders, ignorance of warnings, contumacious

conduct, or some other aggravating circumstance." Cosme-Nieves v.

Deshler, 826 F.2d 1, 2 (1st Cir. 1987); see 9 C. Wright & A.

Miller, Federal Practice & Procedure § 2369 (2d ed. 1995). And

where the case is close, courts should prefer less severe sanctions

that preserve the possibility of disposition on the merits. See

Velazquez-Rivera, 920 F.2d at 1079.

This is one such close case. Pomales knew that the

district court had announced a firm schedule for discovery and

3
Rule 41(b) makes clear that dismissals for want of
prosecution are with prejudice, unless the district court otherwise
specifies.

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dispositive motions. By firing her first lawyer, refusing to allow

him to act on her behalf while she searched for new counsel,

failing to respond to CTI's interim requests for discovery, and

failing to announce new counsel even as the deadline for

dispositive motions approached, Pomales essentially ensured that

neither party would meet the district court's deadlines --

deadlines the court had originally warned would not be altered.

Cf. Robson, 81 F.3d at 4 (repeated disobedience of a scheduling

order is inherently prejudicial and may warrant dismissal).

Certainly the district court's frustration at this conduct is

understandable, and sanctions of some form were plainly

appropriate.

Nevertheless, dismissal with prejudice was not

appropriate in this case. Three considerations underlie this

conclusion: (1) Pomales prosecuted her claims diligently until she

fired her attorney; (2) the district court did not give Pomales

fair warning of its inclination to employ so severe a sanction; and

(3) the four-month delay she caused did not alone constitute

misconduct sufficiently extreme to justify dismissal with

prejudice.

Pomales had diligently prosecuted her claims, first

before the EEOC and then before the district court, for more than

a year and a half before she discharged her attorney and caused the

case to stall for four months. There is no suggestion in the

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record, and CTI does not contend, that Pomales dismissed her lawyer

for the purpose of stalling the proceedings. Moreover, if

Pomales's sworn statement explaining the delay is credited (and the

district court's February 25, 2003 order gives no reason not to

credit it), Pomales was diligent in searching for new counsel in

the interim. Certainly she reacted quickly and diligently to the

court's dismissal of her claims, filing a pro se motion to alter

the judgment on the very day she received notice of the court's

action and later filing a counseled motion to set aside the

judgment. See Ortiz-Anglada, 183 F.3d at 67 (holding dismissal

with prejudice improper and emphasizing that the plaintiff, who

had no reason to suspect her case was at risk, "responded promptly

to the unexpected dismissal with a motion to reconsider it");

Cosme-Nieves, 826 F.2d at 2 (holding dismissal with prejudice

improper and noting that the plaintiffs "responded immediately to

the only warning they received -- the sua sponte dismissal -- with

a motion to the court"). Nor is there any hint of deliberate

efforts by Pomales to delay the case or prejudice the defendants.

Pomales also had little reason to believe she was facing

imminent dismissal of her complaint. As a layperson, she may not

have appreciated the risk inherent in delay.4 She was not given a

4
Of course, Pomales's temporary pro se status did not absolve
her of the need to comply with the Federal Rules of Civil Procedure
or the district court's procedural rules. FDIC v. Anchor Props.,
13 F.3d 27, 31 (1st Cir. 1994). But it does heighten this court's
concern where, as here, the district court did not give warnings or

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deadline for finding new counsel, nor was she told that she was

still obligated to meet established discovery deadlines regardless

of her ability to obtain a new lawyer. Nor did the opposing party

seek dismissal. If the district court had given Pomales fair

warning that it would dismiss her complaint if she did not soon

announce representation or proceed pro se with discovery, our view

of this case would be very different. See, e.g., Cintrón-Lorenzo

v. Departamento de Asuntos del Consumidor, 312 F.3d 522, 526 (1st

Cir. 2002) (protracted noncompliance with court orders, "in the

teeth of explicit warnings," justified dismissal with prejudice);

Chamorro, 304 F.3d at 4-5 (dismissal justified where the plaintiff,

despite being "suitably forewarned," nevertheless disobeyed a court

order). In the absence of any such warning, Pomales's misconduct

was not sufficiently "extreme" to justify dismissal with prejudice.

See Velazquez-Rivera, 920 F.2d at 1078 (emphasizing the lack of

fair warning to the plaintiff in reversing district court's

dismissal for failure to prosecute).5

otherwise make clear its intentions. Cf. Cintrón-Lorenzo v.
Departamento de Asuntos del Consumidor, 312 F.3d 522, 526-27 (1st
Cir. 2002) (acknowledging that leniency for pro se litigants is
sometimes appropriate, but holding that dismissal with prejudice
for failure to prosecute was not an abuse of discretion because,
inter alia, the district court gave the pro se litigant two
explicit warnings before dismissing).
5
This is not to suggest that explicit warnings are always
required before dismissing under Rule 41(b) for failure to
prosecute. Indeed, the Supreme Court has held that "the absence of
notice as to the possibility of dismissal . . . [does not]
necessarily render such a dismissal void." Link, 370 U.S. at 632.

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 It is true, as CTI emphasizes, that Pomales received

copies of CTI's repeated motions to compel announcement of new

counsel, so she cannot protest that she was unaware of the need to

act soon. But Pomales was under the (mis)impression that she did,

or would soon, have a new lawyer acting for her. Moreover, the

district court failed to rule on the earlier motion seeking lesser

sanctions.

Finally, the four-month delay imposed by Pomales's search

for counsel is hardly the kind of "extremely protracted inaction

(measured in years)," Cosme-Nieves, 826 F.2d at 2 (emphasis added),

that ordinarily accompanies dismissals for failure to prosecute.

Anticipating this concern, CTI points us to Figueroa-Ruiz v.

Alegria, 896 F.2d 645 (1st Cir. 1990), in which this court upheld

the dismissal with prejudice of a complaint filed only three months

earlier. See id. at 646-47. But Figueroa-Ruiz only illustrates

the kind of extreme misconduct that is missing in the instant case.

Unlike Pomales, the plaintiffs in Figueroa-Ruiz disobeyed a court

order containing an explicit warning that noncompliance could lead

to dismissal. Id. at 648. Unlike Pomales, they had no explanation

But the Court added that, in the absence of such a warning, the
propriety of dismissal "turns, to a considerable extent, on the
knowledge which the circumstances show such party may be taken to
have of the consequences of his own conduct." Id.; see Velazquez-
Rivera, 920 F.2d at 1078 n.9. Unlike the Court in Link, we do not
think the circumstances here indicate that the plaintiff had
sufficient knowledge of the consequences of her conduct to justify
dismissal without any warning from the district court.

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for their misconduct other than that they were under "stress." Id.

And unlike in this case, the record supported the inference that

the plaintiffs' misconduct was "of a deliberate rather than

inadvertent nature." Id. Not surprisingly, the court in Figueroa-

Ruiz held that in the face of such flagrant misconduct, the fact

that only three months had elapsed was "less pivotal." Id. In

this case, by contrast, the fact that the delay was only four

months in duration, combined with the comparatively limited

culpability of Pomales's conduct, leads us to conclude that

dismissal with prejudice was too harsh a sanction.

III.

The judgment of dismissal with prejudice is vacated and the

dismissal with prejudice is reversed; the case is remanded to the

district court. On remand, the district court is free to consider

lesser remedies for the delay occasioned by Pomales's dismissal of

her attorney.

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