USCA1 Opinion
May 27, 1994 [Not for Publication]
[Not for Publication]
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
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No. 93-2091
WALTER HODGE,
Plaintiff, Appellant,
v.
AMERICAN HOME ASSURANCE COMPANY, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, U.S. District Judge]
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Before
Cyr, Boudin, and Stahl,
Circuit Judges.
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Carlos R. Noriega for appellant.
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John E. Mudd with whom Dario Rivera-Carrasquillo and Cordero,
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Miranda & Pinto were on brief for appellees.
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Per Curiam. Plaintiff-appellant Walter Hodge
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appeals the district court's grant of defendant-appellees',
American Home Assurance Co. and Underwriter Adjustment Co.,
motion to dismiss with prejudice. We affirm.
I.
I.
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BACKGROUND
BACKGROUND
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Plaintiff filed a complaint on October 3, 1989,
alleging that defendants had failed to reimburse him for
damages to his insured property resulting from a series of
earthquakes on the island of St. Martin. Defendants argued
that the damages were the result of faulty construction and
therefore exempt from coverage.
On the eve of the trial and almost four years after
the date of filing of the complaint, defendants filed a
motion in limine, seeking to disqualify plaintiff's liability
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expert for lack of qualifications. The motion was granted
and thereafter, plaintiff's counsel sought to withdraw as
counsel, claiming irreconcilable differences with his client.
This motion was denied and the trial began as scheduled.
During opening arguments, in clear disregard of
Fed. R. Evid. 408, plaintiff's counsel referred to an offer
of settlement apparently made by defendants. After
sustaining defendants' objection and warning plaintiff's
counsel not to refer to settlement negotiations, the court
instructed the jury to disregard counsel's remark.
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Notwithstanding the court's admonition, plaintiff's counsel
resumed his opening by telling the jury that the defendants
were unwilling to settle. Defendants objected and
immediately moved for a mistrial. After discussion with both
parties, the court declared a mistrial and informed
plaintiff's counsel that "Upon request of counsel I will
impose what I consider a non resident bond, to defray some
costs in this case." Plaintiff's counsel did not object.
On May 10, 1993, the court issued a written order
setting forth its reasons for declaring a mistrial. In the
same order, the court also granted defendants' D.P.R.L.R.
3041 motion requesting plaintiff post a $3000 non-resident
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1. D.P.R.L.R. 304 states, in relevant part, that:
When the plaintiff is domiciled
outside of Puerto Rico or is a foreign
corporation, a bond shall be required to
secure the costs, expenses and attorneys'
fees which may be awarded. All
proceedings in the action may be stayed
until bond is posted, which shall not be
less than $250.00. The Court may require
an additional bond upon a showing that
the original bond is not sufficient
security, and may stay the proceedings in
the action until such additional bond is
given.
After the lapse of sixty (60) days
from the service of the order requiring
bond or additional bond, without bond
having been posted, the Court may dismiss
the action.
This rule shall be liberally
interpreted in favor of the plaintiff so
as not to preclude his or her right to
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bond "to secure the costs, expenses and attorneys' fees which
may be awarded." Plaintiff neither objected to nor
complied with this order. Subsequently, defendants filed a
verified, detailed bill of costs in the amount of $73,079.99
for expenses incurred in preparation for the defense,
together with a motion requesting the non-resident bond be
increased to $50,000. The court granted defendants' motion.
Again, plaintiff neither objected to nor complied with this
court order.
After plaintiff had ignored the court's bond order
for sixty days, the time prescribed by D.P.R.L.R. 304,
defendants moved to dismiss the action pursuant to Fed. R.
Civ. P. 41(b)2 and D.P.R.L.R. 304.
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sue through excessive bond requirement.
Consistent with this, the Court, for good
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cause shown, may dispense with this
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requirement. (emphasis supplied).
2. Fed. R. Civ. P. 41(b) states:
(b) Involuntary Dismissal: Effect
Thereof. For failure of the plaintiff to
prosecute or to comply with these rules
or any order of court, a defendant may
move for dismissal of an action or of any
claim against the defendant. Unless the
court in its order for dismissal
otherwise specified, a dismissal under
this subdivision and any dismissal not
provided for in this rule, other than a
dismissal for lack of jurisdiction, for
improper venue, or for failure to join a
party under Rule 19, operates as an
adjudication upon the merits.
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On August 25, 1993, the court, in a lengthy written
order, dismissed the case with prejudice pursuant to Fed. R.
Civ. P. 41(b) citing, inter alia, plaintiff's extreme
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misconduct in failing to obey court orders and warnings. The
following day, plaintiff's counsel, who had not yet received
a copy of the August 25, 1993 order, requested, inter alia,
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an additional thirty days to post bond. On September 20,
1993, the court issued a separate order restating that the
case was dismissed with prejudice as of August 25, 1993.
Finally, on September 22, 1993, the court formally denied
plaintiff's request for additional time. It is from the
court's judgment of dismissal with prejudice that plaintiff
now appeals.
II.
II.
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DISCUSSION
DISCUSSION
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Plaintiff avers that the court abused its
discretion because it never gave consideration to the
problems that had ensued between plaintiff and counsel and
because the court never considered plaintiff's inability to
pay the required bond. The basis of plaintiff's argument is
that the court should have inferred from his motion filed
August 26, 1993, the day after the court dismissed the action
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with prejudice, that plaintiff was seeking a new attorney and
that he did not have the finances to pay the bond. We are
not persuaded by either argument.
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The parameters of Fed. R. Civ. P. 41(b) dismissals
are very clear:
Rule 41(b) of the Federal Rules of Civil
Procedure expressly authorizes a district
court to dismiss a case "[f]or failure of
the plaintiff to prosecute or comply with
. . . any order of court.' Dismissal
with prejudice is a `harsh sanction,'
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Richman v. General Motors Corp., 437 F.2d
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196, 199 (1st Cir. 1971), which `should
be employed only when a plaintiff's
misconduct has been extreme,' Figueroa
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Ruiz v. Alegria, 896 F.2d 645, 647 (1st
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Cir. 1990), and `only after the district
court has determined `that none of the
lesser sanctions available to it would
truly be appropriate,'" Enlace Mercantil
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Int'l, Inc. v. Senior Indus., Inc., 848
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F.2d 315, 317 (1st Cir. 1988). A finding
of extreme misconduct is justified if
there is extremely protracted inaction,
disobedience of court orders, ignorance
of warnings, contumacious conduct, Cosme
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Nieves v. Deshler, 826 F.2d 1,2 (1st Cir.
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1987), or "some other aggravating
circumstance such as `prejudice to the
defendant, glaring weaknesses in the
plaintiff's case, and the wasteful
expenditure of a significant amount of
the district court's time.'" Figueroa
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Ruiz, 896 F.2d at 648 (quoting Enlace
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Mercantil, 848 F.2d at 317).
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Estate of Solis-Rivera v. United States, 993 F.2d 1, 2 (1st
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Cir. 1993). We review a court's Fed. R. Civ. P. 41(b)
dismissal for abuse of discretion. Pinero Capo v. United
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States, 7 F.3d 283, 284 (1st Cir. 1993).
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We begin by noting that plaintiff has waived any
complaint he may have with the amount of the non-resident
bond imposed by the court below. A review of the record
reveals that each of the bond orders was issued without
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prejudice to either party to request an increase or
reduction. Nonetheless, plaintiff neither objected to the
imposition of the bonds nor argued to the court that there
existed circumstances which demanded a reduction in the
amount. Rather, plaintiff silently ignored the bond orders
thereby waiving his right to challenge them on appeal.3 See
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McCoy v. Massachusetts Institute of Technology, 950 F.3d 13,
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22 (1st Cir. 1991) ("It is hornbook law that theories not
raised squarely in the district court cannot be surfaced for
the first time on appeal.").
Moreover, we are not concerned with the personality
conflicts that may have existed between plaintiff and
counsel. Although unfortunate for the two men, we do not
understand how the fact that there may have been friction
could possibly have prevented the plaintiff from posting the
required bond.
Finally, in light of plaintiff's repeated inability
to comply with court warnings and court orders, i.e.,
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3. Even had we not found waiver, we see no error in the
court's orders. As previously held, when reviewing Local
Rule 5, D.P.R.C.R. 304's predecessor, the court "should
consider, upon proper motion, reducing the . . . minimum bond
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requirement, or dispensing with it altogether . . . ." Hawes
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v. Club Ecuestre El Comandante, 535 F.2d 140, 144 (1st Cir.
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1976)(emphasis supplied). Only then should the court
consider "ownership by a nondomiciliary plaintiff of
attachable property in the district, the likelihood of
success on the merits, the presence of a co-plaintiff who is
domiciled in the district, the probable length and complexity
of the litigation, the conduct of the litigants, and the
purposes of the litigation." Id. (footnotes omitted).
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plaintiff's failure to comply with the court's order
addressed to the expert witness requesting documents
regarding his qualifications as an expert, plaintiff's
counsel's repeated in- court references to settlement
negotiations in flagrant disregard of the court's warning,
and plaintiff's refusal to comply with the court's two bond
orders, together with what the court perceived as a weakness
in plaintiff's case due to the lack of expert testimony to
support his claims, we do not find that the court's action in
dismissing the case with prejudice was an abuse of
discretion.
III.
III.
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CONCLUSION
CONCLUSION
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For the foregoing reasons, the order of the
district court is
Affirmed. Costs to Appellees.
Affirmed. Costs to Appellees.
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