United States Court of Appeals
For the First Circuit
No. 05-1302
JOSÉ A. TORRES-VARGAS ET AL.,
Plaintiffs, Appellants,
v.
MIGUEL PEREIRA ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Selya, Circuit Judges.
Marie Elsie López-Adames on brief for appellants.
Salvador J. Antonetti Stutts, Solicitor General, Mariana D.
Negrón Vargas and Maite D. Oronoz Rodríguez, Deputy Solicitors
General, and Rosa E. Pérez Agosto, Assistant Solicitor General, on
brief for appellees.
December 19, 2005
SELYA, Circuit Judge. On February 12, 2003, plaintiff-
appellant José Torres-Vargas sued his employer, the Puerto Rico
Police Department, and several ranking police officers in federal
district court.1 He sought compensatory and punitive damages, as
well as equitable relief, for persecution and a hostile work
environment, allegedly motivated by political discrimination. The
complaint raised a salmagundi of claims under the First and
Fourteenth Amendments to the United States Constitution, 42 U.S.C.
§§ 1983, 1985, 1986, and 1988, and Puerto Rico law. The defendants
vigorously denied the plaintiff's allegations.
The case traveled along a bumpy road from the beginning.
The plaintiff (who claimed that he never received the initial
summons) requested and received numerous extensions of time for
service of process; he did not actually serve the defendants until
September 16, 2003 (more than seven months after the commencement
of the action). One defendant, Rivera (the police superintendent),
moved to dismiss the complaint based on Eleventh Amendment grounds.
After obtaining another extension of time, the plaintiff opposed the
motion.
On March 12, 2004, the police department also moved to
dismiss on Eleventh Amendment grounds. The plaintiff again obtained
1
Torres-Vargas's wife and their conjugal partnership were
named as co-plaintiffs. Because their claims are wholly
derivative, we refer for simplicity's sake to Torres-Vargas as if
he were the sole plaintiff. Our decision is, of course, binding
on all parties.
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an extension of time and eventually opposed that motion. The
district court ultimately granted the police superintendent's and
police department's motions to dismiss in part (as to the
plaintiff's claims for pecuniary damages) and denied them in part
(as to the plaintiff's claim for prospective injunctive relief).
All claims remained intact as to the remaining defendants.2
On August 4, 2004, the district court held a scheduling
conference (the second in the case). At that session, it set a
December 13, 2004 trial date. That date was later pushed back to
June 6, 2005 at the plaintiff's request.
On August 4 — the day of the aforementioned scheduling
conference — the defendants served their first discovery requests.
Over the following eighty-one days, the plaintiff neither answered
the defendants' interrogatories nor produced the designated
documents. The defendants faxed a reminder to the plaintiff's
attorney, noting that the Civil Rules allowed only thirty days for
responding to such discovery requests. See Fed. R. Civ. P.
33(b)(3), 34(b).
At that juncture, the plaintiff asked for, and received,
an extension of the due date until October 27, 2004. When no
discovery was forthcoming from the plaintiff's camp, the defendants,
2
On August 6, 2004, two more defendants moved to dismiss the
suit, this time for failure to state an actionable claim. See Fed.
R. Civ. P. 12(b)(6). After the court granted myriad extensions,
the plaintiff filed an opposition, to which the defendants replied.
The court never ruled on this motion.
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at the plaintiff's beseechment, granted yet another extension to
November 8, 2004. That deadline also passed without service of
either the answers to interrogatories or the designated documents.
On December 9, 2004, the defendants moved to dismiss the
action for both want of prosecution, see Fed. R. Civ. P. 41(b), and
failure to comply with discovery deadlines, see Fed. R. Civ. P.
37(b)(2)(C). Shortly thereafter, the plaintiff transmitted answers
to interrogatories by facsimile. He simultaneously informed the
court that he had fully satisfied his outstanding discovery
obligations.
The defendants disputed this claim of compliance, pointing
out that the plaintiff, inter alia, had yet to provide them with
certified copies of his income tax returns as previously requested.
In light of this apparent omission, the district court, on December
28, 2004, ordered the plaintiff to satisfy all outstanding discovery
requests by January 10, 2005. The court warned the plaintiff that
failure to comply with its order would result in the dismissal with
prejudice of his action.
Despite this explicit admonition, the plaintiff failed
either to produce the designated documents by the appointed date or
to seek an extension of the deadline. The district court, true to
its word, entered an order dismissing the case with prejudice
pursuant to Rule 37(b)(2)(C) "because of [the plaintiff's] ongoing
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failure to prosecute this case and [his] failure to obey this
Court's Order."
The following day, the plaintiff again asserted that he
had fully complied with the defendants' demand for document
production. He made this assertion despite the fact that certain
of the documents (most notably, the tax returns) were still missing.
Based on the same assertion, he filed successive motions for
reconsideration of the dismissal order. The district court denied
both motions. This timely appeal followed.
Our analysis begins with bedrock: a federal district
court's venerable power to sanction a party who repeatedly fails to
comply with court-imposed deadlines cannot be doubted. See, e.g.,
Nat'l Hockey League v. Metro. Hockey Club, 427 U.S. 639, 643 (1976);
Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962). Because the
appropriateness of sanctions depends on the facts of the particular
case, we review the use of dismissal as a sanction for abuse of
discretion. See Nat'l Hockey League, 427 U.S. at 642; Tower
Ventures, Inc. v. City of Westfield, 296 F.3d 43, 46 (1st Cir.
2002). This standard is not appellant-friendly. See Tower
Ventures, 296 F.3d at 46. In applying it, a reviewing court must
consider the chronology of the case and the totality of the
attendant circumstances. Young v. Gordon, 330 F.3d 76, 81 (1st Cir.
2003). In that process, the court must construct a balance of the
relevant factors, including (but not limited to) the trial court's
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need to manage its docket, the potential prejudice to the parties,
and the policy of the law favoring disposition on the merits. Id.
In this appeal, the plaintiff makes three basic points.
First, he argues that his failure to comply with discovery
obligations was excusable because the defendants themselves caused
his inability to comply. Second, he asseverates that he responded
to the defendants' initiatives in "due time," thereby evincing an
active interest in the prosecution of the case. Third, he maintains
that dismissal was ill-advised because he answered the
interrogatories and made a good-faith effort to produce the
designated documents. We consider each of these points in turn.
The premise behind the plaintiff's first contention is
sound: noncompliance caused by an opposing party's actions sometimes
can excuse delay in discovery responses. See, e.g., Ortiz-Anglada
v. Ortiz-Perez, 183 F.3d 65, 67 n.4 (1st Cir. 1999). The
plaintiff's attempt to slide his case within this integument is,
however, unavailing.
The gist of the plaintiff's contention is that the
defendants themselves created a stressful work environment that
caused him great anxiety and made it difficult for him to meet
court-imposed discovery. The main problem with this contention is
that it is unsupported; the record is devoid of anything of
evidentiary quality that might give substance to the claim. To
cinch matters, the plaintiff never voiced this plaint in the
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district court. Consequently, he cannot rewardingly surface it for
the first time on appeal. Teamsters, Chauffeurs, Warehousemen &
Helpers Union v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir.
1992) (explaining that "legal theories not raised squarely in the
lower court cannot be broached for the first time on appeal").
Relatedly, the plaintiff tells us that his unwarranted
transfer caused him to lose contact with his counsel. From aught
that appears in the record, however, there is nothing about that
personnel move that cut the plaintiff off from normal channels of
communication. In the absence of extraordinary circumstances — not
present here — it is certainly not a defendant's responsibility to
provide the plaintiff's lawyer with the plaintiff's contact
information when the plaintiff moves. See Spiller v. U.S.V. Labs.,
Inc., 842 F.2d 535, 537 (1st Cir. 1988).
This brings us to the plaintiff's second contention: that
he took an active interest in the case. In this regard, he posits
that "the docket of the case speaks for itself." We agree with this
emphasis on the docket, but we read the docket differently.
The docket reflects that, from the very commencement of
the action, the plaintiff dragged his heels and the district court
generously granted him extensions of divers kinds. The docket also
shows that when the case entered discovery, the plaintiff, for no
apparent reason, failed to comply with deadlines mandated by the
Civil Rules, even after those deadlines were voluntarily extended
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by the defendants. To make matters worse, the plaintiff, on
December 15, 2004, actively misrepresented to the court that he had
fully complied with all outstanding discovery requests. The
district court's response was crystal clear: comply in full by
January 10, 2005, or face dismissal. The plaintiff's previous
display of interest in the case, erratic at best, cannot excuse his
noncompliance with this clear and aposematic mandate.
This leaves the plaintiff's third contention: that the
lower court should not have issued its most draconian sanction
because he complied with the court's order, if not by the stated
deadline, then by the next day. This brief delay, he says, was
neither willful nor in bad faith.
The plaintiff's claim of compliance is little more than
an attempt to rewrite the facts of the case. While the plaintiff
eventually answered the interrogatories (albeit belatedly), he never
fully complied with his responsibilities for document production.
To be sure, dismissal orders typically are measures of
last resort, reserved for extreme cases. But we have held that a
party's disregard of a court order is a paradigmatic example of
extreme misconduct. See Young, 330 F.3d at 81; Tower Ventures, 296
F.3d at 46. Using dismissal as a sanction in such a case recognizes
the court's strong interest in maintaining discipline and husbanding
scarce judicial resources; after all, such a sanction not only
serves to punish the noncompliant litigant but also acts as a
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deterrent to those who might be tempted to emulate a bad example.
See Nat'l Hockey League, 427 U.S. at 643.
It is settled law that a party flouts a court order at his
peril. Rosario-Diaz v. Gonzalez, 140 F.3d 312, 315 (1st Cir. 1998).
Where, as here, the court appropriately forewarns a plaintiff of the
consequences of future noncompliance with an unambiguous order, the
court need not exhaust less toxic sanctions before dismissing a case
with prejudice.3 See, e.g., Young, 330 F.3d at 82; HMG Prop.
Investors, Inc. v. Parque Indus. Rio Canas, Inc., 847 F.2d 908, 918
(1st Cir. 1988).
We need go no further. Given the plaintiff's record of
dilatory responses, his noncompliance with an unambiguous court
order, and his blatant misrepresentation of the status of his
discovery responses, there is no principled way that we can find an
abuse of discretion in the district court's forewarned decision to
dismiss the action with prejudice.
Affirmed.
3
The plaintiff's profession of good faith does not alter this
result. "[A] finding of bad faith is not a condition precedent to
imposing a sanction of dismissal." Young, 330 F.3d at 82.
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