Esposito v. Home Depot U.S.A., Inc.

United States Court of Appeals
For the First Circuit

No. 08-2115

ROBERT ESPOSITO,

Plaintiff, Appellant,

v.

HOME DEPOT U.S.A., INC., BLACK & DECKER INC.,
DEWALT INDUSTRIAL TOOL CO.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. William E. Smith, U.S. District Judge]

Before

Lipez and Howard, Circuit Judges,
and Woodcock,* District Judge.

Thomas More Dickinson, with whom Law Office of Thomas M.
Dickinson was on brief, for appellant.
C. Russell Bengtson, with whom Carroll Kelly & Murphy was on
brief, for appellees.

December 30, 2009

*
Of the District of Maine, sitting by designation.
 HOWARD, Circuit Judge. In this diversity action

involving a products liability claim, Robert Esposito challenges

the district court's decision to grant summary judgment to the

defendants, Dewalt Industries, Black & Decker, and Home Depot.

Esposito argues on appeal that the case was improperly removed to

federal court and that the district court erroneously precluded his

expert witness. We reject the argument based on improper removal,

but we agree that, in the circumstances of this case, the expert

witness should not have been precluded. Accordingly, we vacate the

district court's entry of summary judgment and remand for further

proceedings.

I. Facts

In March 2003, while he was operating a power saw

manufactured by Dewalt Industries ("Dewalt"), Robert Esposito's

left hand came into contact with the saw's unguarded blade. The

saw severed three of his fingers, none of which could be

reattached. In March 2006, Esposito filed a complaint in Rhode

Island state court against Dewalt, Black & Decker (the company that

packaged the saw), and Home Depot (the company that sold the saw).

Esposito claimed that the saw was defective because its blade guard

did not engage properly and that the defendants were jointly and

severally liable for his injury. Home Depot was served with the

complaint on March 17. The other defendants were served on March

21.

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 On April 3, two of the defendants, Dewalt and Black &

Decker, filed a notice of removal in the United States District

Court for the District of Rhode Island. On April 13, the other

defendant, Home Depot, filed its answer in federal court.

On May 3, Esposito moved to remand the matter back to the

state court. In support of his motion, he claimed a defect in the

removal process in that Home Depot had not consented to removal

within the thirty-day period as required by statute. See 28 U.S.C.

§ 1446(b). That failure, Esposito claimed, breached the unanimity

requirement: that each defendant in a multi-defendant case consent

to removal within thirty days of receiving service. The defendants

opposed Esposito's motion.

The district court denied the motion, concluding that

Home Depot's answer, which had been filed in federal court within

the thirty day period, constituted consent to removal under the

circumstances. Esposito v. Home Depot U.S.A., Inc., 436 F. Supp.

2d 343, 347 (D.R.I. 2006).

In July 2006, the district court set pre-trial discovery

and disclosure deadlines, including a deadline for the written

disclosure of experts under Rule 26 of the Federal Rules of Civil

Procedure. These deadlines were pushed back twice: first at the

request of the defendants and second at the request of Esposito.

The second extension required the parties to wrap up fact discovery

by May 31, 2007; Esposito to disclose experts by June 21; and the

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defendants to disclose experts by July 14. Dispositive motions

were due by August 16.

Operating under this revised timetable, the parties and

their respective experts arranged to participate in a joint

examination of the saw. At this examination, which took place on

April 20, Steven Thomas inspected the saw on Esposito's behalf.

Thomas's curriculum vitae had been sent to the defendants prior to

this examination. When the time came to disclose Thomas as his

expert, however, Esposito failed to do so. Instead, on August 1,

he filed a motion requesting that the court further extend the

relevant deadlines by ninety days. The defendants opposed

Esposito's extension request and on August 3 they filed a summary

judgment motion premised on the plaintiff's lack of an expert.

The magistrate judge denied Esposito's request for a

further extension, and Esposito appealed this decision to the

district court. Expressing reluctance, the district court

nevertheless endorsed the magistrate judge's decision and denied

Esposito's motion for an extension. The court recognized that the

denial of the plaintiff's request for an extension amounted to a

dispositive ruling, noting that "Both of the parties acknowledge

that the decision to exclude [Esposito's] expert as a result of

missing the discovery deadlines will, without much doubt,

effectively dispose of the case." Nevertheless, the district court

concluded that the denial of the extension, which precluded

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Esposito's expert, was justified. In so concluding, the district

court noted that Esposito had failed to offer a legitimate reason

for missing the deadline. The court also expressed its concern

that lesser sanctions, such as the imposition of fines and costs,

might "send the message that noncompliance or inattention to

deadlines can be purchased for a price."

As predicted, the district court's ruling sounded the

death knell for Esposito's case. The magistrate judge recommended

that the district court grant the defendants' motion for summary

judgment and the district court agreed, entering judgment for the

defendants.1 This appeal followed.

II. Discussion

We first examine the removal issue, turning then to the

sanction question.

A. Removal

Under the removal statute, a defendant in a state court

action may remove the action to federal court so long as the

plaintiff could have originally filed the action in federal court.

See 28 U.S.C. § 1441 (permitting removal of cases where the federal

court would have had "original jurisdiction"). Where the action

involves multiple defendants, however, the right of removal is

subject to the so-called "unanimity requirement." See Chicago,

1
In opposing the defendants' summary judgment motion,
Esposito provided and relied upon an engineering report from
Thomas. The magistrate judge struck this report.

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Rock Island & Pac. Ry. Co. v. Martin, 178 U.S. 245, 247-48 (1900).

This requirement is at issue in this case.

The unanimity requirement is derived from 28 U.S.C. §

1446, which sets forth the procedure for removing a state action to

federal court. Loftis v. UPS, 342 F.3d 509, 516 (6th Cir. 2003).

In a case where a plaintiff has sued multiple defendants in state

court, an "all for one and one for all" rule applies with respect

to removal. See Chicago, Rock Island & Pac. Ry. Co., 178 U.S. at

247-48. That is, subject to a few exceptions not applicable here,

all defendants must consent to remove the case for removal to be

effected. Id.; see also 11C Charles Alan Wright, Arthur R. Miller

& Edward H. Cooper, Federal Practice and Procedure § 3731 (3d. ed.

1998) ("Ordinarily, all of the defendants in the state court action

must consent to the removal . . . .").

The requirement of unanimity serves the interests of

plaintiffs, defendants and the judiciary. Plaintiffs are

advantaged, because, were the right to removal an independent

rather than joint right, defendants could split the litigation,

forcing a plaintiff to pursue its case in two separate forums. See

Sansone v. Morton Mach. Works, Inc., 188 F. Supp. 2d 182, 184

(D.R.I. 2002) (citing Getty Oil Corp., Div. of Texaco, Inc. v. Ins.

Co. of N. Am., 841 F.2d 1254, 1262 n.11 (5th Cir. 1988)).

Defendants also stand to benefit from the requirement, as it

precludes one defendant from imposing his choice of forum on a co-

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defendant. Id. (citation omitted). And the unanimity requirement

prevents the needless duplication of litigation, thereby preserving

court resources and eliminating the unattractive prospect of

inconsistent state and federal adjudications. Spillers v. Tillman,

959 F. Supp. 364, 369 (S.D. Miss. 1997).

The defect in the removal process resulting from a

failure of unanimity is not considered to be a jurisdictional

defect, and unless a party moves to remand based on this defect,

the defect is waived and the action may proceed in federal court.

See Loftis, 342 F.3d at 516-17; see also 11C Wright, Miller &

Cooper, Federal Practice and Procedure § 3739 ("After the

expiration of the thirty-day period following the filing of the

removal notice, the right to object to nonjurisdictional defects in

the removal process is considered waived.").

Here, Esposito timely objected to the perceived failure

of the defendants to comply with the unanimity requirement. Before

the district court, as he does now, Esposito argued that Home Depot

failed to consent to removal within the statutorily prescribed

thirty-day period. The district court rejected this argument. As

noted above, it concluded that Home Depot's answer in federal

court, filed within the applicable thirty day period, constituted

consent to removal under the circumstances of the case. Our review

of this conclusion is de novo. Loftis, 434 F.3d at 514.

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 Although the unanimity requirement itself is well-

settled, the various ways that it may be satisfied are less so. We

have not spoken directly to the question, but a number of

guideposts do exist.

The removal statute itself speaks generally to the manner

of removal. In relevant part, section (a) provides that:

[A] defendant or defendants desiring to remove
any civil action . . . from a State court
shall file in the [appropriate] district court
of the United States a notice of removal
signed pursuant to Rule 11 of the Federal
Rules of Civil Procedure and containing a
short and plain statement of the grounds for
removal, together with a copy of all process,
pleadings, and orders served upon such
defendant or defendants in such action.

28 U.S.C. § 1446(a).

Consistent with this statute, a defendant may express its

desire to remove by signing the notice of removal filed by co-

defendants. But, the consensus among courts is that conduct less

explicit than joining the notice will suffice. See Pritchett v.

Cottrell, Inc., 512 F.3d 1057, 1062 (8th Cir. 2008) ("[E]ach

defendant need not necessarily sign the notice of removal.")

(citation omitted); Getty Oil Corp., Div. of Texaco, Inc., 841 F.2d

at 1262 n.11 ("This does not mean that each defendant must sign the

original petition for removal"); see also Sansone, 188 F. Supp. 2d

at 184; Tate v. Mercedes-Benz USA, Inc., 151 F. Supp. 2d 222, 224

(N.D.N.Y. 2001).

-8-
 Although a few courts have gone so far as to say that a

defendant may orally consent to removal before the district court,

Colin v. Schmidt, 528 F. Supp. 355, 358-59 (D.R.I. 1981), Clyde v.

Nat'l Data Corp., 609 F. Supp. 216, 218 (N.D. Ga. 1985), courts

typically require some type of writing that evinces consent,

Loftis, 342 F.3d at 517 ("[A]ll defendants in the action must join

in the removal petition or file their consent to removal in writing

within thirty days . . . ." (emphasis added)); see also Pritchett,

512 F.3d at 1062; Gillis v. Louisiana, 294 F.3d 755, 759 (5th Cir.

2002); Roe v. O'Donohue, 38 F.3d 298, 301 (7th Cir. 1994); Tate,

151 F. Supp. 2d at 224.

What type of writing will be satisfactory engenders yet

another divergence of opinion. Some courts have held that an

answer by a defendant that is silent on removal may nevertheless

establish consent, while other courts have reached the opposite

conclusion. Compare Hernandez v. Six Flags Magic Mountain, Inc.,

688 F. Supp. 560, 562 (C.D. Cal. 1988) (holding that an answer

silent on removal can establish consent), and Glover v. W.R. Grace

& Co., Inc., 773 F. Supp. 964, 965 (E.D. Tex. 1991) (same), with

Local Union No. 172 v. P.J. Dick, Inc., 253 F. Supp. 2d 1022, 1025

(S.D. Ohio 2003) (holding that an answer filed that fails to

expressly consent to removal does not satisfy the unanimity

requirement), and Unicom Sys., Inc. v. Nat'l Louis Univ., 262 F.

Supp. 2d 638, 643 & n.6 (E.D. Va. 2003) (same). At least one court

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has held that a defendant's answer is insufficient to establish

consent to removal even where it explicitly acknowledges the

removal of the case to federal court. Prod. Stamping Corp. v. Md.

Cas. Co., 829 F. Supp. 1074, 1077 (E.D. Wis. 1993).

Although mindful of the principle that removal statutes

are to be narrowly construed, Shamrock Oil & Gas Corp. v. Sheets,

313 U.S. 100, 108-09 (1941), we nevertheless are not inclined to

establish a wooden rule, regardless of whether such a rule would

have the benefit of promoting clarity. And in this particular

case, even assuming that Home Depot's answer failed to satisfy the

unanimity requirement, resulting in a technical defect in the

removal process, the defect was subsequently cured when Home Depot

opposed Esposito's remand motion, thereby clearly communicating its

desire to be in federal court. See Harper v. AutoAlliance Int'l,

Inc., 392 F.3d 195, 202 (6th Cir. 2002) ("In addition, the fact

that [the defendant] opposed [the plaintiff's] motion to remand

cured any purported defect in the removal petition."). Because

this cure occurred prior to the entry of summary judgment, a remand

to the state court was not required. Cf. Caterpillar Inc. v.

Lewis, 519 U.S. 61, 76 (1996); see Parrino v. FHP, Inc., 146 F.3d

699, 703 (9th Cir. 1998) (citing Caterpillar, 519 U.S. at 77, for

the proposition that "a procedural defect existing at the time of

removal but cured prior to entry of judgment does not warrant

reversal and remand of the matter to state court").

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 In a case such as this one, where the parties have

already invested valuable resources in pursuing this litigation in

federal court and where a remand to state court would not serve the

purposes of the unanimity requirement, reaching an opposite

conclusion would place form before function. Parrino, 146 F.3d at

703; Glover, 773 F. Supp. at 965; 11C Wright, Miller & Cooper,

Federal Practice and Procedure § 3739 ("[T]he preferable result

seems to be to continue to allow procedural defects in the removal

procedure be cured so the removed action can remain in federal

court. A contrary conclusion does not seem consistent with the

statutory character of the removal right and seems too

technical."). We refuse to do so, and thus uphold the denial of

the remand motion.

Of course, it is undoubtedly the better practice for a

defendant who wants to be in federal court to join the removal

notice explicitly, either by signing the notice itself or by filing

its consent. By failing to do so in this case, Home Depot ran the

risk that the district court might find a breach of the unanimity

requirement and remand this action to the state court, a decision

we would have been powerless to review. 28 U.S.C. § 1447(d) (a

district court's order remanding a case to the state court from

which it was removed is unreviewable on appeal or otherwise);

Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 133 (1995);

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Gonzalez-Garcia v. Williamson Dickie Mfg. Co., 99 F.3d 490, 491-92

(1st Cir. 1996).

B. Discovery Sanction

The Federal Rules of Civil Procedure provide the basic

framework for disclosure of experts. Rule 26 requires a party to

"disclose to other parties the identity of any person who may be

used at trial to present [expert] evidence." Fed. R. Civ. P.

26(a)(2)(A). Where a district court has established a disclosure

date, as in this case, a party must disclose the expert's identity

at this ordered time. Id. at (a)(2)(C). If a party's expert

disclosure is untimely, the party is not allowed to use that

witness or relevant expert information "to supply evidence on a

motion, at a hearing, or at a trial, unless the failure was

substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1).

Preclusion, however, "is not a strictly mechanical

exercise." Santiago-Diaz v. Laboratorio Clinico y de Referencia

del Este, 456 F.3d 272, 276 (1st Cir. 2006). And, in its

discretion, the district court may choose a less severe sanction.

Id.; see also LaPlace-Bayard v. Batlle, 295 F.3d 157, 162 (1st Cir.

2002) ("[D]istrict courts have broad discretion in meting out . .

. sanctions for Rule 26 violations.") (citation omitted).

Where a district court does opt in favor of preclusion,

we review that decision with reference to a host of factors,

including: (1) the history of the litigation; (2) the sanctioned

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party's need for the precluded evidence; (3) the sanctioned party's

justification (or lack of one) for its late disclosure; (4) the

opponent-party's ability to overcome the late disclosure's adverse

effects -- e.g., the surprise and prejudice associated with the

late disclosure; and (5) the late disclosure's impact on the

district court's docket. Macaulay v. Anas, 321 F.3d 45, 51 (1st

Cir. 2003); see also Santiago-Diaz, 456 F.3d at 276-77. When

reviewing the district court's sanction decision we must keep in

mind that district courts are generally in a better position to

determine the propriety of a particular sanction and, accordingly,

our review of the district court's ultimate choice is deferential.

Anas, 321 F.3d at 51 ("Because trial judges tend to have an

intimate knowledge of the variables that enter into the equation,

appellate review of sanctions orders is deferential.") (citations

omitted); Fashion House, Inc. v. K Mart Corp., 892 F.2d 1076, 1082

(1st Cir. 1989). Consistent with this deference, we review a

district court's decision to exclude expert evidence for an abuse

of discretion, understanding that the sanctioned party shoulders a

"heavy burden" when attempting to show that such an abuse has

occurred. See Santiago-Diaz, 456 F.3d at 275.2

2
We note that Rule 16 of the Federal Rules of Civil Procedure
gives district courts great discretion to issue sanctions where a
party fails to comply with case-management deadlines. Fed. R. Civ.
P. 16(f). It is not entirely clear whether the preclusion sanction
here was levied under Rule 16 or Rule 37, although Esposito cited
Rule 37 in his motion to permit expert testimony. In any event,

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 Here, the district court was undoubtedly entitled to

impose some type of sanction on Esposito. Esposito failed to

comply with a court-imposed deadline that he himself had suggested,

and he could not offer a legitimate justification for his non-

compliance. And despite Esposito's argument that the appearance of

his expert at the inspection of the saw constituted an "informal

disclosure," the rules require formal disclosure for a reason:

without it, parties like the defendants in this case may be

hindered in their ability to prepare effectively for trial. See

Fed. R. Civ. P. 26 (a)(2)(B) (establishing that, "[u]nless

otherwise stipulated or ordered by the court," the formal

disclosure of an expert "must be accompanied by a written report"

that contains a host of information relevant to the expert's

testimony).

Nevertheless, whether the facts here justified the actual

sanction imposed -- the preclusion of the expert witness -- is a

closer question. We start by stating the obvious. The sanction

here had serious consequences. Esposito's need for the expert was

so great that the magistrate judge's decision to preclude the

whether we are reviewing a sanction imposed under Rule 16 or Rule
37, the considerations are generally the same, as is the deference
we afford the district court's choice of sanction. See Santiago-
Diaz, 456 F.3d at 277 (discussing cases dealing with sanctions
imposed under Rule 16 in examining the preclusion of evidence under
Rule 37). Accordingly, we would reach the same result here under
either rule.

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expert, although technically not a dismissal of Esposito's case,

effectively amounted to one. See Primus v. United States, 389 F.3d

231, 234 (1st Cir. 2004). The district court acknowledged as much

when it affirmed the magistrate judge's imposition of the sanction,

observing that "Both of the parties acknowledge that the decision

to exclude the Plaintiff's expert as a result of missing the

discovery deadlines will, without much doubt, effectively dispose

of the case."

Because all parties acknowledged that the sanction

carried the force of a dismissal, the justification for it must be

comparatively more robust. Young v. Gordon 330 F.3d 76, 81 (1st

Cir. 2003) ("To be sure, dismissal ordinarily should be employed as

a sanction only when a plaintiff's misconduct is extreme."); Tower

Ventures, Inc. v. City of Westfield, 296 F.3d 43, 46 (1st Cir.

2002) (recognizing that dismissal should not be granted

"casually"). After considering the other relevant factors

described above, we conclude that the circumstances here do not

justify such strong medicine.

In reaching this conclusion, we view the history of the

litigation as particularly enlightening. This is not a case of a

party repeatedly balking at court-imposed deadlines. Esposito

missed one deadline and requested an extension of the pre-trial and

trial dates after missing that deadline, albeit several weeks after

the deadline had passed. Compare Santiago-Diaz, 456 F.3d at 277 &

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n.4 (noting, in upholding the preclusion of a late-disclosed expert

witness, that the sanctioned party's "dereliction was both obvious

and repeated" and that "[t]he record makes manifest that the

plaintiff was guilty of several discovery violations besides those

related to her expert witness"). Nor is this a case where the

sanctioned party ignored pre-sanction warnings from the district

court. See Young, 330 F.3d at 79. Nor does this case involve,

from all appearances, an act of calculated gamesmanship on the part

of the sanctioned party. Neither the defendants nor the district

court in this case have characterized Esposito's failure to comply

with the disclosure deadline as strategic in nature.

To be sure, not every factor cuts in Esposito's favor.

First, he never offered a legitimate reason for his late

disclosure. See Macaulay, 321 F.3d at 52 (finding that the

district court's preclusion of the expert evidence was appropriate

where, among other things, "the appellant [had not] advanced any

real justification for [the] tardy emergence [of the expert's

report]"). Second, although the defendants here do not discuss in

any great detail how the late disclosure prejudiced them, they

obviously went through the pains of preparing a dispositive summary

judgment motion premised on Esposito's lack of an expert in an

expert-dependent case. See Gagnon v. Teledyne Princeton, Inc., 437

F.3d 188, 198 (1st Cir. 2006) ("[P]rejudice also exists in [the

defendants] having prepared a dispositive motion for summary

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judgment predicated on the preclusion of the expert testimony.");

Primus, 389 F.3d at 236. And finally, Esposito's failure to

disclose his expert by the scheduled date had a clear effect on the

district court's docket. In his motion to extend, Esposito sought

to push back the relevant pre-trial and trial dates by ninety days,

requiring the district court to further move dates that had already

been extended twice.

Even taking these considerations into account, however,

we still must face up to the fact that we are presented with a

fatal sanction levied for a single oversight. We have not been

able to uncover a case from this circuit sustaining a comparable

sanction under similar circumstances. See Benitez-Garcia v.

Gonzalez-Vega, 468 F.3d 1, 5 (1st Cir. 2006) ("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 non-compliance was

never brought to the plaintiffs' attention by the court prior to

dismissing the case."); see also Malot v. Dorado Beach Cottages

Assocs., 478 F.3d 40, 44 (1st Cir. 2007) (same). In our view, a

less severe remedy could have easily achieved the same aims as the

preclusion of the expert while still giving Esposito, potentially

the innocent victim of a defective product, his day in court.

Malot, 478 F.3d at 43 (recognizing "the strong presumption in favor

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of deciding cases on the merits"); Young, 330 F.3d at 81

(referencing the "salutary policy favoring the disposition of cases

on the merits").

The defendants urge us to uphold the district court's

sanction. They rely principally on our decisions in Tower

Ventures, Inc. and Young. In both of these cases, we upheld a

district court's decision to dismiss the case of a party that had

failed to comply with case-management deadlines. Tower Ventures,

Inc., 296 F.3d at 48; Young, 330 F.3d at 83. In each of those

cases, however, the conduct of the sanctioned party was measurably

more egregious than Esposito's conduct was here.

In Tower Ventures, Inc., the sanctioned party, Tower

Ventures, had committed "serial violations of the court's

scheduling order." 296 F.3d at 45. The violations were missed

discovery deadlines, and the final one was particularly flagrant:

Tower Ventures waited eighty-one days after the discovery deadline

had passed, and eighteen days after its motion for summary judgment

was due, to ask the court for a further extension. Id. By that

time, the district court had already issued a show cause order,

asking Tower Ventures why its action should not be dismissed with

prejudice. Id.

In Young, the district court dismissed Young's case

because of Young's "repeated failures to comply with court orders."

330 F.3d at 78. In particular, Young (i) failed to join the

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opposition in filing a joint statement containing a proposed

pretrial schedule as ordered by the court; (ii) did not respond to

the opposition's counter-claims until the court warned him that his

failure to do so could result in a dismissal; and (iii) refused to

appear for his own deposition, even after the court ordered him to

appear and warned him that a failure to do so could result in a

dismissal of his action. Id. at 79.

Here, by contrast, Esposito missed only one court-

scheduled deadline, and his behavior was not nearly as brazen as

the behavior of the sanctioned parties in either of those cases.

He neither engaged in the same level of foot-dragging as was

present in Tower Ventures, nor sloughed off a warning from the

district court like the plaintiff in Young.

We do not wish to casually discount the district court's

concern that a lesser sanction, such as the imposition of fines or

costs, might send a message to other litigants that "inattention to

deadlines can be purchased for a price." The deterrence value of

a sanction may certainty factor into a district court's calculus.

But, allowing the general interest in deterrence to hold too much

sway in the analysis runs afoul of the principle that "sanction[s]

must be handled on a case-by-case basis." Young, 330 F.3d at 81.

In other words, the punishment must approximately fit the crime.

Here, it did not. In the absence of a greater conviction that

parties will indeed attempt to purchase their way out of discovery

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compliance as a result of our holding in this case, we are not

persuaded that the sanction here was justified.

III. Conclusion

For the reasons provided above, we affirm the district

court's denial of the motion to remand, but we reverse the

exclusion of the expert testimony, vacate the entry of summary

judgment, and remand for further proceedings consistent with this

opinion, including the possible imposition of sanctions within the

district court's discretion. The parties shall bear their own

costs.

-Concurring and Dissenting Opinion Follows-

-20-
 WOODCOCK, District Judge, concurring in part and

dissenting in part.

I concur fully with the majority’s thoughtful resolution

of the removal issue. I disagree, however, with the majority’s

conclusion that the district judge abused his discretion by

precluding Esposito’s expert witness because I believe that, in

reaching this conclusion, the majority has applied a higher

dismissal standard to a Rule 37(c) discretionary sanction. I

respectfully dissent.

I. Two Standards: Dismissal and Rule 37(c)(1) Witness
Preclusion

A. The Dismissal Standard

Dismissal with prejudice is different from other

sanctions. Benitez-Garcia, 468 F.3d at 4 (describing dismissal as

“the harshest sanction”); 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) (describing

dismissal as “the most severe sanction”). A district court is

allowed to employ dismissal as a sanction “only when a plaintiff’s

misconduct is extreme.” Young, 330 F.3d at 81. Dismissal as a

sanction is “reserved for cases of ‘extremely protracted inaction

(measured in years), disobedience of court orders, ignorance of

warnings, contumacious conduct, or some other aggravating

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circumstances.’” Benitez-Garcia, 468 F.3d at 4 (quoting Cosme

Nieves v. Deshler, 826 F.2d 1, 2 (1st Cir. 1987)). Concerns of

fairness underlie this heightened standard, since the law favors

“disposition on the merits,” Ortiz-Anglada, 183 F.3d at 66-67, and

the non-compliant party should be given “notice and an opportunity

to be heard.” Benitez-Garcia, 468 F.3d at 5. Further, “where the

case is close, courts should prefer less severe sanctions that

preserve the possibility of disposition on the merits.” Pomales v.

Celulares Telefonica, Inc., 342 F.3d 44, 48 (1st Cir. 2003).

B. The Rule 37(c) Sanction Standard

The imposition of a lesser sanction under Rule 37(c),

such as witness preclusion, is not held to the high dismissal

standard and does not require egregious and repetitive misconduct.

Instead, Rule 37(c)(1) “requires the near automatic exclusion of

Rule 26 information that is not timely disclosed.” Wilson v.

Bradlees of New England, Inc., 250 F.3d 10, 20-21 (1st Cir. 2001).

Though the automatic nature of the preclusion sanction is softened

by the Macaulay factors, witness preclusion is not held to the

rigorous standards of dismissal. See Macaulay, 321 F.3d at 51

(listing as factors the history of the litigation, the proponent’s

need for the challenged evidence, the justification (if any) for

the late disclosure, the opponent’s ability to overcome its adverse

effects (such as surprise and prejudice), and court docket

considerations).

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 C. Leading to Dismissal

This case touches on which standard applies when the

sanction of witness preclusion ultimately results in dismissal. My

view is that the Rule 37(c)(1) standard applies, not the dismissal

standard or something in between.

II. Rule 37(c)(1)

A. Automatic Exclusion as the Sanction in the
Ordinary Case

Rule 37(c)(1) provides:

If a party fails to provide information or
identify a witness as required by Rule 26(a)
or (e), the party is not allowed to use that
information or witness to supply evidence on a
motion, at a hearing, or at a trial, unless
the failure was substantially justified or is
harmless.

Fed. R. Civ. P. 37(c)(1). Esposito violated his obligation to

disclose his expert testimony first and on time as required both by

Rule 26(a)(2)(C) and by the court order in this case.3 In

precluding Esposito’s expert, the district court imposed the

“automatic sanction” of exclusion. Fed. R. Civ. P. 26 advisory

committee’s note, 1993 amendments (stating that “[p]aragraph (1)

prevents a party from using as evidence any witnesses or

3
Rule 26(a)(2)(C) states that “[a] party must make these
disclosures at the times and in the sequence that the court
orders.” Fed. R. Civ. P. 26(a)(2)(C). Esposito was required under
the terms of the April 16, 2007 Court Order to make his expert
disclosures by June 21, 2007 and to make his disclosures before the
defendants made theirs. Esposito violated both Rule and the Order.

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information that, without substantial justification, has not been

disclosed as required by Rules 26(a) and 26(e)(1). This automatic

sanction provides a strong inducement for disclosure of material

that the disclosing party would expect to use as evidence, whether

at a trial, at a hearing, or on a motion, such as one under Rule

56.”); Santiago-Diaz, 456 F.3d at 276 (stating that “[t]he baseline

rule is that ‘the required sanction in the ordinary case is

mandatory preclusion’” (quoting Lohnes v. Level 3 Commc’ns, Inc.,

272 F.3d 49, 60 (1st Cir. 2001))). Here, by excluding the expert’s

testimony, the district court imposed the “mandatory preclusion”

sanction that the Rule, the advisory committee, and this circuit

contemplate will be imposed in the “ordinary case.” Santiago-Diaz,

456 F.3d at 276. I find it difficult to conclude that the district

judge abused his discretion in doing so.

B. Exceptions to the Automatic Sanction of Exclusion

Rule 37(c) allows for exceptions to the automatic

sanction of exclusion when the party’s failure to comply is

“substantially justified” or “harmless.” Fed. R. Civ. P. 37(c)(1).

Here, neither exception applies.

1. Substantial Justification

There was no justification at all, much less a

substantial one, for Esposito’s failure to timely disclose his

expert. Esposito’s attorney ultimately conceded that the failure

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to comply with express terms of both Rule 26(a) and the court

scheduling order was no one’s fault but his own.

2. Harmless

Examples of “harmless” late disclosure under Rule

37(c)(1) in the advisory committee notes suggest that the

“harmless” component has limited application, and the failure to

make a timely and complete expert disclosure does not fit.4 The

district court identified two types of harm caused by Esposito’s

failure to disclose: (1) Harm specific to the defendants in this

case, and (2) harm to future defendants and efficient court

administration. Standing alone, each would justify the exclusion

sanction; taken together, the two factors demonstrate that late

disclosure here was not harmless and the district judge’s decision

not an abuse of discretion.

The district court’s first concern was the impact on the

4
The Advisory Committee observed:
Limiting the automatic sanction to violations
“without substantial justification,” coupled
with the exception for violations that are
“harmless” is needed to avoid unduly harsh
penalties in a variety of situations, e.g.,
the inadvertent omission from a Rule
26(a)(1)(A) disclosure of the name of a
potential witness known to all parties; the
failure to list as a trial witness a person so
listed by another party; or the lack of
knowledge of a pro se litigant of the
requirement to make disclosures.

Fed. R. Civ. P. 37 advisory committee’s note, 1993 amendments.

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defendants. The magistrate judge (whose opinion the district court

adopted) observed that if Esposito were permitted to make a belated

expert disclosure, defendants would be forced to have their expert

review Esposito’s expert’s report and make new disclosures in

response. Further, the magistrate judge noted that the defendants

had filed a motion for summary judgment based on the absence of a

plaintiff’s expert, and, if the late disclosure were allowed, they

would have to file a new summary judgment motion or withdraw the

one already filed.

Implicit in these concerns is the effect of Esposito’s

non-disclosure on the sequential disclosure process mandated by the

scheduling order and the resulting unfairness to the defendants.

By Esposito’s neglect, the party with the burden of proof

successfully shifted the burden of disclosure. This is what the

district judge was referring to when he wrote that, if

noncompliance with scheduling orders resulted in mere fines or

costs, “[p]laintiffs might seek to avoid initial expert disclosure

in order to gain unfair advantage in litigation.”

The district court’s second concern has several angles.

First, the district judge was troubled that if Esposito’s failure

were excused, future plaintiffs, emboldened by the lenient

treatment of Esposito, might make a cold-blooded judgment that the

advantage of receiving the defense expert’s opinions first exceeds

the disadvantage of paying court-ordered fines and costs. The

-26-
district judge worried that to some the fines or sanctions might be

“a price worth paying.”

The district court expressed a related institutional

concern that if parties perceive that noncompliance or inattention

to deadlines can be ignored, overlooked without significant

consequence, or purchased for a price, the court’s ability to

efficiently manage its docket would be compromised. This is not

trivial. The federal rules and local practice are rife with time

hurdles, the violation of which can lead to the imposition of a

range of the exclusion sanction. This has been a conscious choice

by the Rules Committee. As this circuit has recognized, experience

has taught that the parties cannot be left to police themselves,

and courts routinely impose and enforce deadlines to bring complex

federal cases to fruition. The federal bar is acutely aware of the

certainty of exclusion, and the lawyers proceed accordingly. A

deadline without a sanction severe enough to cause compliance is

not a deadline at all; it is a suggestion. See Macaulay, 321 F.3d

at 51 (stating that “trial judges must work a complicated equation,

balancing fairness to the parties with the need to manage crowded

dockets”).

In this context, the district court expressed concern

that the failure to exclude in this case would lead others to seize

upon the benevolence of the district court to gain unwarranted

strategic advantages, as happened here, by forcing the defense to

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disclose its experts first. This type of consideration is, as this

circuit has repeatedly recognized, a legitimate concern for the

district court. Young, 330 F.3d at 83 (observing that deterrence

of others from similar misconduct is a proper purpose for a

district judge fashioning a sanction); Macaulay, 321 F.3d at 51

(discussing the district judge’s right to consider the impact of

the sanction on the court’s docket); Tower Ventures, Inc., 296 F.3d

at 46 (stating that “the court’s efforts at stewardship are

undermined where, as here, a party cavalierly flouts the court’s

scheduling orders”).

C. First Circuit Authority

There is a decade of First Circuit authority that

supports the exclusion of an expert if a party fails to make a

timely disclosure. See Boston Gas Co. v. Century Indem. Co., 529

F.3d 8, 18 (1st Cir. 2008); Beaudette v. Louisville Ladder, Inc.,

462 F.3d 22, 26-27 (1st Cir. 2006); Santiago-Diaz, 456 F.3d at 276;

Gagnon, 437 F.3d at 191; Primus, 389 F.3d at 234-36; Young, 330

F.3d at 81-83; McCaulay, 321 F.3d at 50-53; Tower Ventures, 296

F.3d at 46; Lohnes, 272 F.3d at 59-61; Ortiz-Lopez v. Sociedad

Espanola de Auxilio Mutuo y Beneficiencia, 248 F.3d 29, 33-36 (1st

Cir. 2001); Klonoski v. Mahlab, 156 F.3d 255, 269 (1st Cir. 1998).

District courts in this circuit have routinely followed suit. See

Alves v. Mazda Motors of America, Inc., 448 F. Supp. 2d 285, 293-97

(D. Mass. 2006); Peterson v. Scotia Prince Cruises, Ltd., 222

-28-
F.R.D. 216, 217-18 (D. Me. 2004). I concede that each case stands

on its own facts and each can be distinguished in sometimes subtle

and sometimes significant ways, but up to now the consistent

message from this circuit has been that the trial bar must comply

with expert designation orders or face the likelihood that the

expert witness will be excluded.

D. The Decision to Exclude

The district judge’s decision to exclude a late-

designated expert would ordinarily pass as an unremarkable and

expected exercise of judicial discretion. The district judge

issued a thoughtful written opinion, discussed the sanctioning

alternatives, and elected, for clearly-stated and permissible

reasons, to impose the sanction of exclusion.

III. The Sanction’s Result

What makes this case different than a garden variety

imposition of the automatic sanction of exclusion? It must be the

harshness of the result: The district court entered summary

judgment against a person who sustained a serious physical injury

while using the defendants’ product.

A. A New Dismissal Standard

The majority seems to impose a new two-part analysis

before a district court may order a sanction that later leads to

dismissal: First, the district court must consider the traditional

Rule 37(c) Macaulay factors; second, the district court must

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compare the violation at issue with conduct that had previously

justified dismissal.5 The majority thus grafts the dismissal

standard onto the traditional 37(c) rubric. In effect, the

majority reads a bifurcated sanction standard into Rule 37(c): For

sanctions not leading to dismissal, the Rule 37(c) discretionary

standard as elaborated by Macauley applies; for Rule 37(c)

sanctions leading to dismissal, the higher dismissal standard

applies.

B. Rule 37(c) Sanction Resulting in Dismissal

There are good reasons not to adopt a rule that the

higher dismissal standard should apply when a district court

imposes a lesser sanction that can over time lead to dismissal.

The most convincing is that the dispositive impact is not always

obvious when the sanction is imposed.6 In countless cases,

5
Ironically, the majority introduces this standard in
reversing the district judge, who applied the same two-step
analysis that the majority now proposes. The district judge
considered all the Rule 37(c) factors and went on to evaluate the
case under the dismissal standard, expressly discussing Young and
Tower Ventures. At the same time, I agree with the majority that
if the higher dismissal standard applies, it would be difficult to
affirm the district court, since there is no evidence in this
record of Young or Tower Ventures levels of misconduct.
6
A sanctioning court is often not in a good position to
predict such consequences. Here, although both parties and the
district judge correctly predicted that preclusion was tantamount
to dismissal, it is not inconceivable that Esposito could have
asserted the malfunction theory to avoid summary judgment. See
Walker v. General Elec. Co., 968 F.2d 120 (1st Cir. 1992); Canning
v. Broan-Nutone, LLC, No. 05-15, 2007 WL 1112355, at *16-17 (D.Me.
March 30, 2007) (recognizing the applicability of res ipsa loquitur
in the product liability context). The point is not that Esposito
erred in failing to assert the malfunction theory as a defense (it

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seemingly lesser sanctions turn out to be the functional equivalent

to dismissal under a different guise. Exclusion of a document,

restriction of the scope of a deposition, striking a late-disclosed

lay witness’s testimony—all may seem non-dispositive at the time.

However, when the dispositive motion is filed or as the trial

proceeds, the sanction may prove to have been decisive. The

district judge who at the time of imposition thinks the sanction is

relatively lenient may have instead condemned the violator to the

time and expense of a losing trial. Even the imposition of a

monetary sanction for a party without resources can be the

featherweight that tips the scales and forces an unfavorable

settlement. The point is that the imposition of a sanction must be

evaluated based on the standards applicable to the sanction itself,

not to its range of potential consequences. Otherwise, in addition

to evaluating and punishing the conduct that precipitated the

sanction, the district judge will be required to assess its overall

impact on the parties and the case itself, an assessment the

district judge is unlikely to be able to accurately make at the

time. If the district court’s prediction that the sanction will be

was likely inapplicable), but that, when he imposed the sanction,
the district judge may have incorrectly assumed exclusion would
automatically lead to dismissal. If the higher dismissal standard
is applied to a Rule 37(c) sanction, the court will avoid imposing
a sanction that could lead to dismissal unless the circumstances
are egregious. If the court has guessed wrong and the exclusion
would not have led to dismissal, the offending party will have
avoided exclusion under a more forgiving standard than Rule 37(c)
contemplates.

-31-
less than dispositive turns out to be inaccurate, it may well lead

to a retrospective appellate determination that the district court

should have applied a higher dismissal standard and that it abused

its discretion, not for imposing the sanction, but for failing to

accurately predict its effect.

I acknowledge that a policy argument can be made that

there should be a different standard for Rule 37(c) cases, such as

this one, where “all parties acknowledged that the sanction carried

the force of a dismissal.” But the language of Rule 37(c) does not

suggest a separate standard for the narrow band of cases where the

district judge is reasonably certain the sanction will end up

causing a dismissal, and to date the First Circuit has not carved

out such an exception.

To be clear, I have no quarrel with the proposition that

the district court should take into consideration the likely

consequence of a sanction, at least when the judge concludes that

the consequence is obvious. The Macauley factors include “the

proponent’s need for the challenged evidence,” 321 F.3d at 51, and

the likelihood that the proponent’s case will fail should be

considered under this factor. But here the district judge did just

that. In any event, I do not agree that the likelihood of

dismissal should transform a judge’s discretionary imposition of

the usual sanction into an abuse of that discretion or, put another

way, that under Macauley, the prospect of dismissal trumps the

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other factors and elevates the usual sanction into a dismissal

analysis requiring egregious conduct.

IV. Consequences

I worry that the majority’s opinion will leave district

judges at sea as to when they are authorized to impose a sanction

if it leads or could lead to dismissal. Ironically, under the

majority’s formulation, the sanction of exclusion will end up being

applied only when it does not really matter and not imposed when it

does.

It would seem the obverse should be the case: If the

witness is critical, the proponent has a compelling incentive to

comply with the deadlines precisely because the exclusion will mean

more. In the long run, I believe the imposition of dismissal

standards on sanctions leading to dismissal will prove unfortunate.

Young, 330 F.3d at 83 (“Sanctions are often intended to do more

than calibrate the scales between a particular plaintiff and a

particular defendant. One principle purpose is to deter others

from similar misconduct.”).

I am also worried that the majority’s decision will be

read to extend to thousands of district court sanction decisions

that up to now have been viewed as the normal course of business.

The failure to timely respond to a motion, the failure to

adequately respond to a statement of material fact in a motion for

summary judgment, the failure to list an exhibit or witness before

-33-
trial, and the myriad of other routine miscues often lead to

exclusion or waiver and later can be causally traced to an adverse

judgment. The list goes on and on and is the grist for the

district court mill. In short, district courts routinely impose

sanctions, great and small, that lead directly and indirectly to

one party winning and the other losing.

I am concerned that the majority’s opinion will be cited

to force the trial court to back away from imposing what up to now

has been the expected sanction and that the lackadaisical will draw

heart, the compliant will suffer, and the ability of the district

court to manage its docket will be compromised. To date, district

judges have imposed the Rule 37(c)(1) sanction of exclusion with

confidence that the appellate court will affirm their exercise of

discretion, but from now on, a district court will be wary of

excluding evidence that could lead later to judgment against the

offending party, unless the violator “engaged in the same level of

foot-dragging as was present in Tower Ventures, nor sloughed off a

warning from the district court like the plaintiff in Young.” The

normal Rule 37(c)(1) sanction of preclusion for failure to

designate an expert will become extraordinary, applicable only

where the violator has demonstrated a pattern of persistent

violation. This result runs contrary to the Rule’s mandate;

exclusion becomes the exception, and a lesser sanction the rule. 7

7
As a practical matter, the appellate court may never know the
extent to which this decision causes district judges to avoid the

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 Finally, the majority states that “a less severe remedy

could have easily achieved the same aims as the preclusion of the

expert.” Preclusion aside, the other Rule 37(c)(1) sanctions are

payment of reasonable expenses, informing the jury of the party’s

failure, any of the orders listed in Rule 37(b)(2)(A)(i)-(vi), or

“other appropriate sanctions.” Fed. R. Civ. P. 37(c)(1)(A)-(C).

The orders listed in Rule 37(b)(2)(A)(i)-(vi) are nearly all the

equivalent of expert preclusion or more severe. See Fed. R. Civ.

P. 37(b)(2)(A)(i)-(vi) (setting forth a range of sanctions,

including directing that the matters embraced in the discovery

order be established for purposes of the action, prohibiting the

disobedient party from supporting or opposing the designated claims

or defenses, striking the pleadings in whole or in part, dismissing

the action or proceeding in whole or in part, or rendering a

default judgment).

The majority implicitly approves a “lesser sanction, such

as the imposition of fines or costs” and concludes that “[i]n the

absence of a greater conviction that parties will indeed attempt to

purchase their way out of discovery compliance as a result of our

automatic sanction of exclusion. Faced with appellate authority
stating that, absent a pattern of egregious conduct, witness
exclusion will constitute an abuse of discretion if it leads to
dismissal, district courts are likely to seek safer ground and
impose lesser sanctions. Neither party is likely to appeal such a
ruling; the offender will not, and the compliant party will know
that the lesser sanction fits squarely within the trial court’s
broad range of sanctioning discretion.

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holding in this case, we are not persuaded that the sanction here

was justified.” At least as it concerns the danger of compliance

being purchased at a price, the correct monetary sanction is an

exceedingly tricky question.8 What quantum of “greater conviction”

will be necessary before a trial judge can properly conclude that

the parties have attempted “to purchase their way out of discovery

compliance”? How does a trial court go about establishing this

factor?9 And, what amount, if any, will effectively deter parties

from attempting to purchase their way out of discovery compliance?

It is difficult to know on this record, which is exactly

the point. As this circuit has often recognized, the district

court, with its more intimate familiarity with the parties, the

attorneys, the travel of the case, the court docket, and other

factors, is in a far better position to make this judgment. Here,

the district judge considered the imposition of a monetary sanction

and concluded no amount would work because a fine or costs would

“send the message that noncompliance or inattention to deadlines

can be purchased for a price.” Instead, he made the difficult,

case specific judgment to exclude, and I conclude that, in doing
8
At the same time, I concede that more traditional monetary
sanction evaluations are not nearly as difficult to calculate, and
district courts are fully capable of assessing attorney’s fees and
costs for the rippling impact of late expert disclosure.
9
As Rule 37(c) provides exclusion as the automatic sanction,
it would seem that the burden to convince the trial court not to
impose the sanction of exclusion – and that offending parties are
not attempting to purchase their way out of discovery compliance –
should rest with the offenders, not with the compliant party or the
trial court.

-36-
so, the district judge acted within the scope of his authorized

discretion.

-37-