United States Court of Appeals
For the First Circuit
No. 11-1501
LEYDA MULERO-ABREU ET AL.,
Plaintiffs, Appellants,
v.
PUERTO RICO POLICE DEPARTMENT ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Selya, Circuit Judges.
Frank D. Inserni Milam for appellants.
Susana I. Peñagaricano-Brown, Assistant Solicitor General,
Puerto Rico Department of Justice, with whom Luis R. Román-Negrón,
Solicitor General, and Jeanette Collazo Ortiz, Deputy Solicitor
General, were on brief, for appellees.
March 29, 2012
SELYA, Circuit Judge. This appeal illustrates the folly
of treating case-management orders as polite suggestions rather
than firm directives. The tale follows.
After the district court ordered the plaintiffs to answer
interrogatories and produce documents by a date certain, the
plaintiffs — despite receiving several extensions of the due date
and two warnings about the consequences of not meeting it — failed
to comply. True to its word, the court dismissed the action as a
sanction for noncompliance. It thereafter refused to reconsider.
The plaintiffs appeal. We affirm.
I. BACKGROUND
The plaintiffs, appellants here, are Leyda Mulero-Abreu
(Mulero), her husband Victor Reyes-Raspaldo, and their conjugal
partnership. Invoking federal question and supplemental
jurisdiction, see 28 U.S.C. §§ 1331, 1367, the plaintiffs brought
suit in the federal district court against the Puerto Rico Police
Department (the Department), sundry departmental employees, and the
Commonwealth of Puerto Rico.
In their complaint, the plaintiffs alleged violations of
their constitutional and statutory rights. Because this appeal
turns on the procedural history of the case, we eschew any detailed
inventory of either the plaintiffs' claims or the underlying facts.
It suffices to say that the plaintiffs' complaint relates to
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Mulero's allegations of sexual harassment and emotional abuse
arising out of her employment by the Department.
The district court issued an initial scheduling order,
see Fed. R. Civ. P. 16(b), closing discovery as of November 18,
2010. When the defendants' lead trial attorney encountered a
serious emergency, the district court, without objection, reset the
close of discovery to January 28, 2011.
In November, the defendants served the plaintiffs with
interrogatories and requests for production of documents. See Fed.
R. Civ. P. 33, 34. Although sent that month both by facsimile and
certified mail, the mailed copy was not received by the plaintiffs
until December 20.1
As the new discovery closure date approached, all of the
parties sought to extend the deadline. These requests were driven
primarily by the involvement of the plaintiffs' counsel in a
criminal trial (a circumstance that made it difficult to take
depositions during the month of January). The district court
obliged, extending the discovery closure date to February 28, 2011.
On February 24, the plaintiffs moved to extend this
deadline for an additional thirty days. They represented that
their lawyer had been busy and had no free time to devote to their
case. They attached to their motion a letter from defense counsel
1
The parties dispute whether the facsimile transmission was
received earlier. This dispute is not material to the issues on
appeal and, thus, we leave it unresolved.
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stating that the defendants did not object to the requested
extension. The final paragraph of this letter caught the court's
attention. It noted that the plaintiffs had yet to respond "to the
interrogatories and request for production of documents that were
sent . . . several months ago" even though the response period
prescribed by the Civil Rules had long since passed. See Fed. R.
Civ. P. 33(b)(2), 34(b)(2)(A).
Alerted to a delay in the discovery process, the court
entered a pointed order that pushed back the discovery closure date
to March 25. However, the court embellished the extension with an
aposematic warning:
Plaintiffs will provide the answers to all
outstanding interrogatories and requests for
production of documents no later than February
28, 2011. Plaintiffs are precluded from
raising any objection to any question in any
interrogatory or any request for production of
documents. . . . [P]laintiffs' [failure] to
answer the interrogatories and requests for
production of documents by, February 28, 2011,
will result in the dismissal of the suit, with
prejudice.
February 28 came and went without any discernible
progress on the discovery front. On March 1, the defendants filed
an informative motion, apprising the district court that the
plaintiffs had neither answered the interrogatories nor produced
the documents. Two days later, the plaintiffs filed an opposition,
which accused the defendants of discovery misconduct and
represented that the interrogatory answers and requested documents
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would be supplied within the next ten days. The opposition
indicated that the reason for the delay was Mulero's need to "rest
for [a] few days" after her "exruciating" February 28 deposition.
The district court took the plaintiffs at their word and
extended the deadline for compliance by ten days. Its order
provided that:
Plaintiffs will answer any outstanding
interrogatories and produce all documents
requested no later than March 14, 2011. NO
EXTENSIONS WILL BE ALLOWED. No objection to
any interrogatory or request for production of
documents will be allowed. Plaintiffs have
waived any and all objections.
In addition, the court repeated its earlier admonition that
noncompliance would lead to dismissal of the case.
This deadline, like the previous deadlines, passed
without any sign of compliance by the plaintiffs. On March 16, the
defendants filed a second informative motion, recounting that the
interrogatories remained unanswered and that the documents had not
been produced. The next day the court, exercising its authority
under Federal Rule of Civil Procedure 16(f)(1)(C), dismissed the
action with prejudice. Mulero-Abreu v. P.R. Police Dep't, 272
F.R.D. 313, 315 (D.P.R. 2011).
A week later, the plaintiffs moved for reconsideration.
They attached to their motion some correspondence that their lawyer
had sent to defense counsel, including two letters discussing the
discovery materials. The first, sent in January, stated
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conclusorily that the interrogatory answers were contained in
Mulero's deposition, thus rendering the interrogatories repetitive
and onerous. The second, sent in February, reiterated that view
and added that the requested documents were contained in more than
150 pages of materials already furnished as part of the plaintiffs'
automatic disclosure obligations. See Fed. R. Civ. P. 26(a)(1).
The answers to interrogatories and an index of the overdue
documents were attached to this motion. The district court
summarily denied the motion. A subsequent motion for
reconsideration was likewise denied. This timely appeal followed.
II. ANALYSIS
Administering a bustling docket is hard work. In
recognition of the difficulty of this task, "[t]he Civil Rules
endow trial judges with formidable case-management authority."
Rosario-Diaz v. Gonzalez, 140 F.3d 312, 315 (1st Cir. 1998). One
source of this authority is Rule 16(f), which authorizes a district
court to issue, sua sponte, "any just orders . . . if a party or
its attorney . . . fails to obey a scheduling or other pretrial
order." Fed. R. Civ. P. 16(f)(1)(C). This provision incorporates
by reference a menu of sanctions enumerated in Rule 37, including
"dismissing the action . . . in whole or in part." Fed. R. Civ. P.
16(f)(1), 37(b)(2)(A)(v).
Of course, dismissal does not follow automatically from
every failure to abide by a case-management order. When a party
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fails to obey such an order, the selection of an appropriate
sanction is peculiarly within the province of the district court.
In making this selection, a district judge "must work a complicated
equation, balancing fairness to the parties with the need to manage
crowded dockets." Macaulay v. Anas, 321 F.3d 45, 51 (1st Cir.
2003). Given the trial court's "intimate knowledge of the
variables that enter into the equation, appellate review of
sanctions orders is deferential." Id. (citation omitted); see
Jensen v. Frank, 912 F.2d 517, 524 (1st Cir. 1990) (holding that a
Rule 16(f) determination is reviewable for abuse of discretion).
"[W]e focus our review particularly on whether a material factor
deserving significant weight was ignored, whether an improper
factor was relied upon, or whether when all proper and no improper
factors were assessed the court made a serious mistake in weighing
them." United States v. One 1987 BMW 325, 985 F.2d 655, 657-58
(1st Cir. 1993) (quoting Indep. Oil & Chem. Workers of Quincy, Inc.
v. Procter & Gamble Mfg. Co., 864 F.2d 927, 929 (1st Cir. 1988))
(alterations and internal quotation marks omitted). Absent an
error of law — and we discern none here — the party challenging a
sanction faces an uphill climb in persuading a reviewing court that
the trial court abused its discretion. Id. at 657.
Against this backdrop, we take the measure of the
plaintiffs' asseverational array. The common thread that runs
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throughout their claims is their strident criticism of the
defendants' attorneys.
To begin, the plaintiffs point out that opposing counsel
did not attach a certification of good-faith attempts at resolution
to either of their informative motions. This is true as far as it
goes — but it does not get the plaintiffs anywhere. Although both
the Civil Rules and the district court's local rules require a
party filing a motion to compel discovery to attach a certification
that a good-faith effort has been made to resolve the discovery
dispute without judicial intervention, see Fed. R. Civ. P.
37(a)(1); D.P.R. Civ. R. 26(b), the defendants did not file any
motions to compel. Rather, the seminal filing was the plaintiffs'
request for an extension, which contained a letter that prompted
the court to act sua sponte. The defendants' subsequent filings
simply notified the court that the plaintiffs had not met
successive court-imposed deadlines. There is no requirement in the
Civil Rules, the local rules, or elsewhere that a party must attach
a certification of good-faith attempts at dispute resolution to an
informative motion.2
2
This is not merely a matter of nomenclature. Neither of the
defendants' informative motions asked the court for an order
compelling the plaintiffs to make discovery. And even though their
second motion requested an order of dismissal for the plaintiffs'
failure to comply, its primary function was to inform the court
that the plaintiffs had missed yet another deadline.
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More broadly, the plaintiffs denigrate opposing counsel
for supposedly acting in bad faith throughout the discovery
process. These animadversions do not advance their cause. While
it is axiomatic that parties must act in good faith during
discovery, see, e.g., Fed. R. Civ. P. 26(g)(1), the plaintiffs have
not explained how the defendants' bad faith bears any relationship
to their own refusal to obey the district court's serial orders.
In law as in life, two wrongs do not make a right.
Relatedly, the plaintiffs contend that the defendants
intentionally misrepresented to the district court that the
interrogatories had been outstanding since November of 2010 when in
reality they were not received until sometime in December. The
plaintiffs assert that this misrepresentation was material to the
court's decision to dismiss the case. This assertion is baseless.
The record reflects that the defendants accurately
explained the entire chronology of events in their first
informative motion. There was no misrepresentation, and the court
was fully aware of the chronology when it ruled. Moreover, the
plaintiffs were given ample time to effect discovery. Their
attempt to link the delay in receiving the mailed copy of the
interrogatories to their failure to comply borders on the
chimerical.
Taking a different tack, the plaintiffs maintain that
they fulfilled their discovery responsibilities when they sent
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letters to the defendants characterizing the interrogatories and
requests for production as repetitive and onerous and informing the
defendants that the information sought was contained in Mulero's
deposition and in a trove of documents previously produced. The
plaintiffs claim that in light of these letters, the defendants
acted in bad faith by telling the court that the plaintiffs were
derelict in their discovery obligations. Because the defendants
never made the court aware of these assertions, this thesis runs,
the court mistakenly dismissed the action.
This thesis stands logic on its ear. The plaintiffs
provide no coherent explanation as to why it was the defendants'
burden to make the plaintiffs' arguments for them. The plaintiffs
never told the court at any time before the order of dismissal
entered that they believed that they had satisfied their discovery
obligations, and their actions belie this newly advanced position.
Long after sending these letters, the plaintiffs offered excuses
for noncompliance and promised the court that the overdue materials
would be forthcoming. Given this sequence of events, it strains
credulity to imagine that even the plaintiffs believed that the
letters were sufficient to effect compliance.
If more were needed — and we do not think that it is —
the responses contained in the letters were manifestly inadequate.
To "answer" the interrogatories, the plaintiffs merely referred the
defendants to Mulero's deposition. But answering interrogatories
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simply by directing the proponent to rummage through other
discovery materials falls short of the obligations imposed by Rule
33. See, e.g., Union Pac. R.R. v. Larkin, 229 F.R.D. 240, 243
(D.N.M. 2005); Int'l Mining Co. v. Allen & Co., 567 F. Supp. 777,
787 (S.D.N.Y. 1983). The plaintiffs' blanket objection to all of
the interrogatories — including those asking for basic information
— is equally impuissant. See Fed. R. Civ. P. 33(b)(3)-(4)
(explaining that "[t]he grounds for objecting to an interrogatory
must be stated with specificity" and all interrogatories must be
answered to the extent they are not objectionable); see also
Josephs v. Harris Corp., 677 F.2d 985, 991-92 (3d Cir. 1982)
(concluding that the plaintiff's broad objection to all
interrogatories failed to meet the requirements of the Civil
Rules).
The same flaws mar the plaintiffs' invitation that the
defendants sift through documents previously delivered in search of
the documents that they requested under Rule 34. At the very
least, the defendants were entitled to responses or objections
addressed to "each item or category [of items]." Fed. R. Civ. P.
34(b)(2)(B). The plaintiffs never supplied such an index,
suggesting instead that the defendants find the needle in the
haystack.
Next, the plaintiffs argue that the sanction is too
harsh. They insist that the surrounding circumstances cut in favor
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of a milder sanction because they were generally compliant with the
court's schedule and they had good excuses for missing the
discovery deadlines.
The premise on which this argument rests is correct. The
totality of the circumstances should be considered when assessing
the appropriateness of a discovery sanction. HMG Prop. Investors,
Inc. v. Parque Indus. Rio Canas, Inc., 847 F.2d 908, 917 (1st Cir.
1988). But the conclusion that the plaintiffs would have us draw
from this premise does not follow. We explain briefly.
The fact that the plaintiffs met other deadlines in the
course of the case does not inoculate them against the sanction of
dismissal. Their failure to provide the required responses to both
interrogatories and requests for production was in flagrant
disregard of multiple court orders. We have said before, and today
reaffirm, that "[i]f [the court] sets a reasonable due date,
parties should not be allowed . . . painlessly to escape the
foreseeable consequences of noncompliance." Mendez v. Banco
Popular de P.R., 900 F.2d 4, 7 (1st Cir. 1990).
Here, moreover, the plaintiffs were twice explicitly
warned that if they neglected to comply by a specified date, their
case would be dismissed. The plaintiffs turned a deaf ear to those
warnings. They did so at their peril and they cannot now be heard
to say that they were somehow blindsided because the district court
said what it meant and meant what it said.
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At any rate, the plaintiffs' entreaty that they had good
reasons for missing the court-imposed deadlines is unpersuasive.
They claim that Mulero was too tired after her emotionally draining
deposition to provide responses and that their attorney was too
busy to help. Neither claim offers them much shelter.
Mulero's deposition was taken on February 28 and the
plaintiffs have not explained how that could have affected Mulero's
ability to comply in January (when the responses were originally
due). Nor have they explained (say, by proffering a physician's
report) how Mulero's alleged incapacity could have lasted for two
full weeks after the deposition (when the final deadline expired).
Finally, they have not explained why they missed the last deadline
— a deadline that they had pronounced themselves able to meet.
The demands of the attorney's other clients do not
improve the picture. It is settled beyond hope of contradiction
that "[t]he fact that an attorney has other fish to fry is not an
acceptable reason for disregarding a court order." Chamorro v.
Puerto Rican Cars, Inc., 304 F.3d 1, 5 (1st Cir. 2002).
The plaintiffs fall back on the hoary principle that
"[d]ismissal with prejudice is a harsh sanction which runs counter
to our strong policy favoring the disposition of cases on the
merits." Figueroa Ruiz v. Alegria, 896 F.2d 645, 647 (1st Cir.
1990) (citations and internal quotation marks omitted). But even
though the sanction of dismissal is reserved for a limited number
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of cases, it must be available so the trial courts may punish and
deter egregious misconduct. See Goldman, Antonetti, Ferraiuoli,
Axtmayer & Hertell, a P'ship v. Medfit Int'l, Inc., 982 F.2d 686,
692 (1st Cir. 1993). "[D]isobedience of court orders is inimical
to the orderly administration of justice and, in and of itself, can
constitute extreme misconduct." Young v. Gordon, 330 F.3d 76, 81
(1st Cir. 2003). This is such a case: the plaintiffs, disregarding
explicit warnings, failed to comply with a succession of court
orders; other time parameters were pushed back as the court waited
in vain for the plaintiffs to comply; and the defendants' trial
preparations were stalled. Under these circumstances, dismissal
was a condign sanction.3 See id. at 83.
This leaves only the district court's rejection of the
motions for reconsideration. A district court's decision to deny
a motion for reconsideration engenders review for abuse of
discretion. Bennett v. Saint-Gobain Corp., 507 F.3d 23, 34 (1st
Cir. 2007). For such a motion to succeed, "the movant must
demonstrate either that newly discovered evidence (not previously
available) has come to light or that the rendering court committed
a manifest error of law." Palmer v. Champion Mortg., 465 F.3d 24,
30 (1st Cir. 2006). We already have considered the materials that
the plaintiffs attached to their motions for reconsideration and
3
The fact that the plaintiffs furnished the requested
material a week after the case was dismissed does not change this
calculus. See Young, 330 F.3d at 83.
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found them wanting. Similarly, the record contains no sign of
legal error. Thus, the denials of reconsideration were well within
the compass of the trial court's discretion.
III. CONCLUSION
We need go no further. The district court waited
patiently for the overdue discovery, extended the due date on more
than one occasion, and twice warned the plaintiffs that it would
dismiss the case if they continued to stonewall. The court set the
last deadline in conformity with the plaintiffs' volunteered
statement of how long it would take them to comply. When that
statement proved to be an empty promise, the court dismissed the
case. For the reasons elucidated above, we see neither error nor
abuse of discretion in that action.
Affirmed.
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