United States Court of Appeals
For the First Circuit
No. 06-1026
ISRAEL BENITEZ-GARCIA; DAMARIS DIAZ; ISRAEL BENITEZ-DIAZ;
SONIA LAGUER-MORALES; SONIA I. DIAZ-LAGUER; NEFTALY CARRASQUILLO-
CARRASQUILLO; CARMEN MILAGROS AMARAL-LOPEZ; GIANNA M.
CARRASQUILLO-AMARAL; ESTHER HERNANDEZ-GARCIA; DRASKA MACHELLY
CASILLAS-HERNANDEZ; NELSON GONZALEZ; MILAGROS LABOY; MARIE ANN
GONZALEZ-LABOY; LUIS JAVIER ROSA-DAVILA; NATALIA ALISHA ROSA-
NIEVES; SONIA CRUZ-GONZALEZ; ELVIS ALEXIS MALDONADO-CRUZ; LUIS H.
MENDOZA-RODRIGUEZ; MARY LUZ MONTANEZ-SERRAN; LESLY ANN MENDOZA-
MONTANEZ; VICTOR MANUEL MARTINEZ-TORRES; BETTY VEGA-RIVERA;
VICTOR RAFAEL MARTINEZ-VEGA; BERNARD SANTIAGO; IVETTE S. DUCLERE;
BERNARD A. SANTIAGO-DUCLERE; LUIS R. SANTIAGO-TORRES; ARLENE J.
RUIZ-DIAZ; CELESTE CORAL SANTIAGO-RUIZ; ELIUDES CAMPS-MARCANO;
MARISOL HERNANDEZ-MILLAN; LEISHLA M. CAMPS-HERNANDEZ; JORGE M.
JIMENEZ-MARTINEZ; FRANCES L. CARRERO-ROMAN;
KRYST M. JIMENEZ-CARRERO,
Plaintiffs, Appellants,
v.
ADALBERTO GONZALEZ-VEGA; JANE DOE; CONJUGAL PARTNERSHIP GONZALEZ-
DOE; COMMONWEALTH OF PUERTO RICO, Represented by Hon. Sila Maria
Calderon, Governess of Puerto Rico; DEPARTMENT OF EDUCATION OF
THE COMMONWEALTH OF PUERTO RICO, Represented by Hon. Cesar Rey;
JOHN DOE; RICHARD ROE; A-Z INSURANCE CO.,
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,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.
Carlos Rodríguez-García and Maza & Green on brief for
appellants.
Susana I. Peñagarícano-Brown, Assistant Solicitor General,
Salvador J. Antonetti-Stutts, Solicitor General, Mariana Negrón-
Vargas, Deputy Solicitor General, and Maite D. Oronoz-Rodríguez,
Deputy Solicitor General, on brief for appellees Commonwealth of
Puerto Rico and the Department of Education of the Commonwealth of
Puerto Rico.
November 3, 2006
LYNCH, Circuit Judge. By order dated November 16, 2005,
the district court dismissed plaintiffs' civil rights action as a
sanction for violations of three deadlines set in an oral Initial
Scheduling Conference (ISC) discovery order. The order of
dismissal was entered despite the fact that under the district
court's local rules, plaintiffs had at least until November 18,
2005 to respond to the defendants' motion requesting this drastic
sanction. The court then did not accept plaintiffs' motion for
reconsideration in this very active case, as it denied plaintiffs
permission to file a motion that exceeded the page limit in the
local rules. As best one can tell, the court never considered
plaintiffs' explanation for their failure to meet the ISC
deadlines. On these and other facts presented, we reverse.
I.
On September 13, 2004, plaintiffs filed an action against
the Commonwealth of Puerto Rico, its Department of Education, a
particular high school teacher, and various officials and other
parties, alleging that plaintiffs had been victims of gender
discrimination, sexual harassment, and quid pro quo exchange of
higher grades for sexual favors. In the early months of the
litigation, the district court granted a number of extensions to
various defendants to file their answers, and then allowed
supplemental answers asserting new defenses as late as July 19,
-3-
2005. Even so, two of the defendants did not timely file their
answers and default judgment was initially entered against them.1
The case proceeded to discovery. By order dated March
18, 2005, the district court notified the parties that they should
prepare for the ISC. The order informed the parties that all
orders issued during the ISC would be effective immediately, even
if the ISC order were not formally entered until a later date. The
March 18, 2005 order also notified the parties that failure to
comply with that order would "result in stiff penalties, including
but not limited to the entry of default, the dismissal of one or
more claims or defenses, barring of witnesses or evidence, or
monetary sanctions."
The ISC order was not formally entered until August 24,
2005, though it was apparently orally communicated to the parties
at the ISC on June 16, 2005. The written ISC order also provided
that non-compliance might "result in the imposition of sanctions
. . . includ[ing] the imposition of a fine, or the elimination of
any of the allegations of the complaint, the answer, or any
pleading." In the middle of discovery, on November 3, 2005, two of
1
The default judgment was never formally lifted against
defendant Department of Education, although it subsequently
participated in the case throughout the litigation and even
successfully moved to dismiss some of the claims against it.
Defendant Adalberto Gonzalez-Vega also appears to have been
participating in the litigation despite being in default; his
motion to set aside the default was pending at the time the
district court dismissed plaintiffs' claims.
-4-
the defendants filed a motion requesting that plaintiffs' case be
dismissed with prejudice as a sanction for plaintiffs' failure to
comply with the ISC order.
The court order dismissing the case, signed by the
district judge on November 16, 2005, was entered before plaintiffs
had filed a response to the defendants' motion. The district court
stated it was dismissing the action with prejudice because
plaintiffs had failed to meet three of four discovery deadlines in
July and August of 2005. The three deadlines, listed under the
heading "Preliminary Orders" in the ISC order, were: (1) that
plaintiffs were to provide, by July 8, 2005, either the name of the
person in charge of a previous investigation against the teacher
co-defendant or copies of complaints previously filed against that
co-defendant; (2) that plaintiffs' expert was to tender his report
by July 26, 2005; and (3) that plaintiffs were to provide their
medical records and Health Insurance Portability and Accountability
Act (HIPAA) consent forms by August 17, 2005.2 All three of these
deadlines predated the written ISC order's formal date of entry.
The district court, citing Damiani v. Rhode Island
Hospital, 704 F.2d 12, 17 (1st Cir. 1983), found that this was "a
case of extreme misconduct that warrants the sanction of dismissal
2
The ISC order also set out a number of other deadlines. It
set March 21, 2006 as the deadline for filing dispositive motions,
June 21, 2006 as the date for the pre-trial conference, and June
28, 2006 as the trial date.
-5-
with prejudice" because the plaintiffs had: (1) violated discovery
orders; (2) failed to seek consent; and (3) failed to seek approval
for non-compliance based on a truly valid reason. The court did
not order plaintiffs to show cause, and it noted that plaintiffs
had not opposed the motion. The court order was entered on
November 17, 2005 -- one day after the date it was signed by the
district judge.
Plaintiffs filed a motion for reconsideration on November
28, 2005. Because the motion exceeded 25 pages in length, the
limit set by the local rules, it was accompanied by a motion for
leave to file an overlength document. Both motions were denied the
next day, November 29, 2005. There is no indication that the
district court ever reviewed the merits of the motion or gave the
plaintiffs a later opportunity to file a conforming motion.
At the time the court dismissed the case for plaintiffs'
failure to comply with the ISC deadlines there was a pending motion
from the plaintiffs to amend the ISC order. This motion was filed
on October 9, 2005 and was raised again in a filing on November 3,
2005. There was also activity by a previously defaulted defendant
seeking to enter the case. And throughout discovery the plaintiffs
had filed numerous motions to compel defendants to comply with
discovery, arguing that the defendants were stalling and foot-
dragging. At least some of plaintiffs' allegations apparently had
merit: on August 9, 2005 the court granted the plaintiffs' motion
-6-
to compel defendants to produce certain documents, and it also
partially granted plaintiffs' motion to quash several of the
deposition notices on the grounds that the defendants had not
provided notice to all parties.
II.
A district court may dismiss an action for noncompliance
with a discovery order. Fed. R. Civ. P. 37(b)(2)(C).3 When a
district court invokes this power, our review is for abuse of
discretion. See Nat'l Hockey League v. Metro. Hockey Club, Inc.,
427 U.S. 639, 642 (1976) (per curiam); Bachier-Ortiz v. Colon-
Mendoza, 331 F.3d 193, 194 (1st Cir. 2003) (per curiam).
The sanction imposed here was dismissal with prejudice,
the harshest sanction, other than contempt, which may be visited on
a party. It has been used where the plaintiff has failed to
prosecute his case. See Link v. Wabash R.R. Co., 370 U.S. 626, 629
(1962); see also Pomales v. Celulares Telefonica, Inc., 342 F.3d
44, 48-49 (1st Cir. 2003) (reversing a dismissal with prejudice for
lack of prosecution); Ortiz-Anglada v. Ortiz-Perez, 183 F.3d 65,
66-67 (1st Cir. 1999) (same). In that context, the sanction is
reserved for cases of "extremely protracted inaction (measured in
3
In addition to citing this rule, the district court also
claimed authority under Fed. R. Civ. P. 41(b), which allows the
court to dismiss an action "[f]or failure of the plaintiff to
prosecute or to comply with . . . any order of court." For
purposes of this appeal, we need not examine which of these rules
provides proper authority for dismissal of an action for failure to
comply with an ISC order.
-7-
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). This case
does not involve a failure to prosecute. Indeed, the plaintiffs
zealously prosecuted the action. The docket sheet shows over 100
entries at the time of entry of dismissal.
Still, zealous prosecution is no shield against sanctions
for violations of court discovery orders. Dismissal with prejudice
for violation of such orders is well within the arsenal of the
trial judge. See Tower Ventures, Inc. v. City of Westfield, 296
F.3d 43, 46 (1st Cir. 2002) (noting that disobedience of a court
order can constitute extreme misconduct warranting dismissal);
Robson v. Hallenbeck, 81 F.3d 1, 4 (1st Cir. 1996) (explaining that
successive violations of court scheduling orders can justify
dismissal with prejudice, and admonishing parties who "treat
scheduling orders as optional and [who] conduct trial preparations
at their own convenience"); see also Young v. Gordon, 330 F.3d 76,
81 (1st Cir. 2003).
Where dismissal with prejudice is involved, it has long
been our rule that a case should not be dismissed with prejudice
except "when a plaintiff's misconduct is particularly egregious or
extreme." Benjamin v. Aroostook Med. Ctr., Inc., 57 F.3d 101, 107
(1st Cir. 1995); see also Tower Ventures, 296 F.3d at 46
(explaining that not "every breach of a scheduling order warrants"
-8-
dismissal with prejudice, and noting that we will not "rubber-stamp
the use of dismissal as a sanction"). In addition, "fairness
requires that some limits be placed on [the] use" of a sanction of
this severity. Velazquez-Rivera v. Sea-Land Serv., Inc., 920 F.2d
1072, 1075-76 (1st Cir. 1990). These fairness concerns encompass
both the law's preference that cases be disposed of on the merits,
see Pomales, 342 F.3d at 48, and procedural aspects such as notice
and an opportunity to be heard, see Ortiz-Anglada, 183 F.3d at 67.
Thus, our inquiry is into both the substance of the court's order
and the procedure by which the sanction was imposed.
Our inquiry into sanctions orders is not a mechanical
one, and our cases set forth a variety of important considerations:
Among those commonly mentioned (this list is
not complete) are the severity of the
violation, the legitimacy of the party's
excuse, repetition of violations, the
deliberateness vel non of the misconduct,
mitigating excuses, prejudice to the other
side and to the operations of the court, and
the adequacy of lesser sanctions. . . . There
is also a procedural dimension.
Robson, 81 F.3d at 2-3.
We look at the substance first. There is no pattern of
the plaintiffs repeatedly flouting court orders. Cf., e.g.,
Crossman v. Raytheon Long Term Disability Plan, 316 F.3d 36, 39 &
n.2 (1st Cir. 2002) (noting the importance generally of finding a
pattern or series of disobedience and reversing an order of
dismissal where all of the alleged infractions stemmed from
-9-
noncompliance with a single order). Defendants do not cite to us,
and we have been unable to find, a case from this circuit
sustaining a dismissal with prejudice imposed solely for a single
allegation of noncompliance with a single (albeit multi-part)
discovery order -- at least where that noncompliance was never
brought to the plaintiffs' attention by the court prior to
dismissing the case. Robson comes closest, but it involved the
more serious violations of a variety of pre-trial deadlines on the
eve of trial, which were brought to the court's attention on the
morning of trial itself. See Robson, 81 F.3d at 2. Context makes
those much more serious infractions than what is involved here.
Also, in Robson we vacated the dismissal; the district court had
not considered the validity of several proffered excuses and thus
there was an insufficient basis to uphold the dismissal on appeal.
See id. at 2-5.
At the time the defendants brought the motion for
sanctions, the three deadlines had been violated by approximately
four months, three months, and two and a half months, respectively.
In Ortiz-Anglada, a delay of seven months was insufficient to
warrant dismissal with prejudice. 183 F.3d at 66-67. In Pomales,
a four-month delay "did not alone constitute misconduct
sufficiently extreme to justify dismissal with prejudice." 342
F.3d at 49. The plaintiffs' delay here, albeit one that came
without seeking prior consent, is not a case of extreme misconduct
-10-
warranting dismissal -- particularly in light of the pending
motions from plaintiffs4 and from the defaulted defendant seeking
to reenter the case. Further, there had been no motion to compel
compliance.
Moreover, the district court does not appear to have
considered whether a sanction as severe as dismissal with prejudice
was needed or whether other sanctions might well have sufficed.
Cf. Crossman, 316 F.3d at 39-40 (finding that the district court's
failure to consider the adequacy of lesser sanctions contributed to
a finding of abuse of discretion); cf. also Asociacion de Empleados
del Instituto de Cultura Puertorriquena v. Rodgriguez-Morales, 538
F.2d 915, 917 (1st Cir. 1976).
Nor is it clear that the defendants suffered much, if
any, prejudice from plaintiffs' delay; while defendants suggest
that the documents not produced were "pertinent to the key issues
of liability and damages," they have not explained how the delay
has affected their ability to litigate these issues in the context
of the broader schedule for the case. In their motion for
4
The portions of the ISC order that plaintiffs sought to
amend in their pending motion do not appear to be the portions that
the district court found they had disobeyed. Nevertheless, the
plaintiffs' motion did allege that the defendants were hampering
discovery in this case, and in addition to asking for specific
modifications, the plaintiffs also asked for "any order [the court]
might see fit." Cf. Enlace Mercantil Int'l, Inc. v. Senior Indus.,
Inc., 848 F.2d 315, 318 (1st Cir. 1988) (reversing a district
court's dismissal when the record left open the possibility that
plaintiff's delay resulted from waiting for the district court to
rule on a pending and relevant motion).
-11-
sanctions, defendants made no allegations that they ever even
requested the missing information from plaintiffs in the time
between the deadline dates and the filing of their motion. Indeed,
at the time the defendants moved for sanctions it was still nearly
eight months before the trial date, and more than four and a half
months before the court's deadline to submit dispositive motions.
Cf. Figueroa-Ruiz v. Alegria, 896 F.2d 645, 649 (1st Cir. 1990)
(noting that there was little prejudice from plaintiffs' delay when
defendants' tactical position was unaffected).5
Turning to procedure, we think that the district court
simply could not have weighed all of the appropriate factors here
given the alacrity with which it dismissed the action. The
district court noted that defendants' motion for sanctions went
unopposed and that, as a result, the plaintiffs had not
demonstrated good cause for their noncompliance. But under the
district court's local rules the plaintiffs had at least until
November 18, 2005 to file their objection.6 The court did not wait
5
It is true that in Robson we stated that "[r]epeated
disobedience of a scheduling order is inherently prejudicial." 81
F.3d at 4. Robson did not, however, explain how much prejudice
results from such violations. Moreover, the violations in Robson
occurred on the eve of trial and appear not to have been brought to
the court's attention until the morning of trial itself. Id. at 2.
The inherent prejudice in Robson was thus far more obvious from the
record than is the case here.
6
Under D.P.R. R. 7.1(b), an opposing party is deemed to have
waived objection to a motion unless he files a written objection
within ten days. D.P.R. R. 7.1(d) explains that these ten days are
calculated according to Fed. R. Civ. P. 6(a), which in turn
-12-
for the expiration of this deadline.7 When the plaintiffs sought
to present their argument in an oversize motion for
reconsideration, along with a motion for permission to extend the
length, both were denied without comment. It appears the district
court never considered plaintiffs' explanations for why their
excludes Saturdays, Sundays, and legal holidays when a rule's time
period is less than 11 days. Excluding weekends and the Veterans
Day holiday, plaintiffs' response to the motion filed on November
3, 2005 was due at least no earlier than November 18, 2005. In
fact, plaintiffs may even have been entitled to several more days
beyond that. The record indicates that defendants' motion for
sanctions was filed electronically using the CM/ECF system, and
that service was made on opposing counsel through this system.
Under the district court's local rules, it appears that this
mechanism of service entitled plaintiffs to an additional three
days. See D.P.R. R. 5.1(e); see also Fed. R. Civ. P. 6(e).
7
The district court may have been relying on a mistaken
docket entry, made at the bottom of the entry for defendants'
motion for sanctions, indicating that a response was due on
November 16, 2005. Nevertheless, we can find nothing in the record
indicating that this deadline was entered as a formal order of the
court, and in the absence of such the district court's local rules
were controlling.
-13-
failures should be excused8 and why a less drastic remedy would
suffice.
"Ordinarily, the plaintiff is given an opportunity to
explain [his noncompliance] or argue for a lesser penalty . . . ."
Robson, 81 F.3d at 3.9 Cf. Damiani, 704 F.2d at 17 (noting that
prior to dismissing the case, the district court held two hearings
at which it gave plaintiffs' counsel an opportunity to argue
against dismissal). That was not done here.
8
The Supreme Court has held that the term "excusable neglect"
should be interpreted flexibly. See Pioneer Inv. Servs. Co. v.
Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 389 (1993). It
instructed the lower courts to engage in an equitable balancing
test, looking to all relevant circumstances, including the degree
of prejudice to the adverse party, the potential impact on judicial
proceedings, and the reasons for delay. Id. at 395. This court
has held that Pioneer was meant to apply more broadly, in other
circumstances in which the party who missed a deadline argues
excusable neglect. See Pratt v. Philbrook, 109 F.3d 18, 19-20 (1st
Cir. 1997); see also Graphic Commc'ns Int'l Union, Local 12-N v.
Quebecor Printing Providence, Inc., 270 F.3d 1, 5 (1st Cir. 2001)
(applying Pioneer to Fed. R. App. P. 4(a)); Hospital del Maestro v.
NLRB, 263 F.3d 173, 174-75 & n.1 (1st Cir. 2001) (applying Pioneer
to NLRB rules).
9
To the extent the Supreme Court upheld dismissal in Link
without notice, that case is distinguishable. There, at the time
of the dismissal the district court had already been appraised of
the party's reason for noncompliance. See Link, 376 U.S. at 628.
Also, there is no indication in Link that the district court was
acting contrary to local rules. See id. at 633 n.8. Also
distinguishable is Cintron-Lorenzo v. Departamento de Asuntos del
Consumidor, 312 F.3d 522 (1st Cir. 2002), which upheld a sua sponte
dismissal. In that case there was a lengthy silence from the
plaintiff and little indication that she was even actively
participating in the litigation. Id. at 524-25. The district
court also warned the plaintiff that it was specifically
considering dismissal based on her conduct in the litigation thus
far; the plaintiff did not take this opportunity to present her
side to the court. See id. at 526.
-14-
The order entering the dismissal with prejudice was an
abuse of discretion and is reversed.
The judgment of the district court is reversed and the
case is remanded for further proceedings consistent with this
opinion.
-15-