Abdullah v. ACands, Inc.

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-1085

ALI ABDULLAH, ET AL.,

Plaintiffs, Appellants,

v.

ACANDS, INC., ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Torruella, Circuit Judge,

Campbell, Senior Circuit Judge,

and Carter,* District Judge.

Donald A. Krispin with whom Leonard C. Jaques and Maritime

Asbestosis Legal Clinic, a Division of The Jaques Admiralty Law Firm,

P.C. were on brief for appellants.

Lawrence G. Cetrulo with whom Maureen E. Kane, Peabody & Arnold,

Marc L. Fleischaker, Donald C. McLean, Lawrence E. Blatnik, Peder

Magee, Arent Fox Kintner Plotkin & Kahn, A. Bernard Guekguezian,

Taylor, Anderson & Travers, Laurie S. Gill, Palmer & Dodge, Lisa

Arrowood, Todd & Weld, Harold M. Walter, Tydings & Rosenberg, R.

Cornelius Danaher, Jr., Nancy K. Roux, Danaher, Tedford, Lagnese &

Neal, Joel F. Pierce, Judith A. Perritano, Morrison, Mahoney & Miller,

Francis M. Lynch, LeComte, Emanuelson, Tick & Doyle, Andrew M.

Higgins, Casner & Edwards, John Herlihy, Herlihy & Associates,

Christopher M. Browne, Doherty, Wallace, Pillsbury & Murphy, P.C.,

Francis B. Sally, Thomas P. Billings, Sally & Fitch, Robert F. O'Day,

Law Office of Robert F. O'Day, Paul E. Dwyer, Jr., Tucker, Biegel &

Goldstein, Peter J. Rubin, Diane S. Lukac, Bernstein, Shur, Sawyer &

Nelson, George W. Noone, Avery, Dooley, Post & Avery, Stephen A.

Hopkins, Sherburne, Powers & Needham, Robert J. Sherer, Roche, Carens

& DeGiacomo, Charlene Androse, Warner & Stackpole, Ann O'Malley,

Johnson, O'Malley & Harvey, Michael D. Chefitz, Gilberg, Kurent &

Kiernan, David M. Governo, Kirby & Governo, Gregg L. Spyridon, Paula

W. Wellons, Hoffman, Sutterfield, Ensenat & Bankston, James M.

Campbell, Campbell & Associates, William S. Eggeling, Jeffrey P.

Trout, Ropes & Gray, Leo F. Roach, Jr., Roche, Heifetz, Murphy &

Wholley, Robert McGuire, Nancy McDonald, McElroy, Deutsch & Mulvaney,

Michael B. Weinberg, John A. Donovan, Jr., Joni F. Katz, Burns &

Levinson, Jessica H. Kish, Gallagher & Gallagher, P.C., Carolyn

Sullivan, Melick & Porter, Richard L. Edwards, William P. Marsan,

Campbell & Associates, Daniel S. McInnis, John C. Cogavin and Cogavin

& Waystack were on brief for appellees.

August 1, 1994

*Of the District of Maine, sitting by designation.

CARTER, Chief District Judge.

Appellants Ali Abdullah, et al., appeal from an

order dismissing their 1000-plaintiff and 93-defendant

complaint with prejudice for failure to adhere to a court

order requiring them to refile separate complaints

conforming to Local Rules of the District of Massachusetts

governing joinder and specificity of pleading in asbestos

litigation and alleging an adequate basis for jurisdiction.

Because we find that the trial judge acted within her

discretion in dismissing Appellants' action with prejudice

pursuant to Fed. R. Civ. P. 41(b), we affirm.

I. PROCEDURAL BACKGROUND

Appellants filed an initial complaint on July 23,

1993, in United States District Court in the District of

Massachusetts, followed by an amended complaint filed on

August 20, 1993. The amended complaint (hereinafter

"Complaint") was filed on behalf of 1000 plaintiffs against

93 defendants with the first twenty pages listing only the

names and social security numbers of plaintiffs, followed by

two pages listing the names only of defendants. The

remaining four and one-half pages encompass Appellants'

basic claims and allege, in summation, the following:

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(a) paragraphs 1 and 2 allege that
the action is brought under
Fed. R. Civ. P. 20 governing
joinder of parties and is an
admiralty and maritime action
within the meaning of Fed. R.
Civ. P. 9(h);

(b) paragraph 4 alleges that
defendants designed,
manufactured, or supplied
asbestos and asbestos-
containing products or
machinery for placement on
vessels upon which plaintiffs
or plaintiffs' decedents
served as crewmembers;

(c) paragraph 5 alleges that as a
direct and proximate result of
exposure to such products,
plaintiffs have suffered
asbestos-related diseases;

(d) paragraph 6 alleges that each
defendant negligently designed
and manufactured such
products, failed to adequately
warn of the hazards of such
products, and committed a
breach of implied warranty of
fitness of the respective
products for their intended
use;

(e) paragraph 7 alleges that
defendants committed acts and
omissions constituting willful
and wanton disregard for the
safety of those who would be
exposed to their products and
should be subject to punitive
damages;

(f) paragraph 8 alleges that due
to defendants' acts,

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plaintiffs have sustained
damages including loss of
earnings and earning capacity,
pain and suffering, exemplary
and punitive damages, and loss
of support, society and
companionship.

See Complaint (Docket No. 83) at 21-25.

From the time the Complaint was filed until its

dismissal on January 5, 1994, over twenty Appellee-

defendants filed motions to dismiss and motions for issuance

of a show cause order. These motions, to which Appellants

never responded, challenged the Complaint on a number of

grounds, including failure to provide sufficient factual

information to put defendants on notice of the claims and

improper joinder.

On September 24, 1993, the trial judge issued an

order directing Appellants' counsel to show cause why the

action should proceed. The order stated that the Complaint

presents "serious questions regarding not only the

jurisdiction of this Court but whether this Court has any

connection with the claims and whether there has been

compliance with the Federal Rules of Civil Procedure."

Order to Show Cause (Docket No. 124) at 1. The order

indicated that Appellants' counsel should appear before the

court on October 27, 1993, and present the factual and legal

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basis for, inter alia, the contention that the parties are

properly joined pursuant to Fed. R. Civ. P. 20. Id. at 2.

At the show-cause hearing, the trial judge

indicated that she was "very disturbed about the joinder of

1000 plaintiffs and 93 defendants without any statement of

fact about how they belong together in a case of this sort."

Hearing Transcript (Tr.)(October 27, 1993) at 141. She also

indicated her concern that a number of issues to be

litigated -- such as identification of the products to which

each plaintiff was exposed, causation, and damages -- would

involve individual determinations with respect to each

plaintiff, militating against joinder. Id. at 8-10.

The court further indicated that the Complaint had

not been filed in accordance with Local Rules governing

joinder and specificity of pleading in asbestos cases set

out in Massachusetts Multiple Litigation Orders 3 and 4

("MML Orders 3 and 4).1 See In re: Massachusetts Asbestos

1MML Orders 3 and 4 place limits on joinder and require
complaints to indicate, to the extent possible, "the dates
of alleged exposure," "the names of plaintiffs' employers
and the dates of employment where such exposure has
occurred." MML Order 3 at VIII (2). MML Orders 3 and 4 are
applicable to all asbestos cases filed in the District of
Massachusetts "except as otherwise directed by the Court
upon motion and for cause shown by the party seeking to have
[the Orders] declared inapplicable." MML Orders 3 and 4 at
II.

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Cases, Pretrial Order No. 3, (June 3, 1981) and In re:

Massachusetts Asbestos Cases, Pretrial Order No. 4,

(December 14, 1984). Appellants' counsel told the court

that the case was in the process of being transferred by the

Judicial Panel on Multidistrict Litigation ("MDL Panel")2

and stated that "this court and all federal courts with

regard to the asbestos litigation, is a conduit court." Tr.

at 23. Counsel further indicated that he was subject to MDL

rules only and not the Local Rules of the District of

Massachusetts, stating that:

I am saying that this is MDL.
This is not Local Rules. We
are not bound by Local Rules,
and you should not perceive
this. MDL states specifically
that you don't even have to
plead anything, just a few --
just a few sparse paragraphs,

2In re: Asbestos Products Liability Litigation, 771

F. Supp. 415 (J.P.M.L. 1991), the MDL Panel issued an order
transferring all pending asbestos-related personal injury
and wrongful death cases filed in federal courts to the
District Court for the Eastern District of Pennsylvania,
assigning them to Judge Charles R. Weiner for coordinated
pretrial proceedings.

Asbestos-related cases filed in federal courts
after this order was issued may be certified for transfer by
the MDL Panel pursuant to 28 U.S.C. 1407 and in accordance
with the Rules of Procedure of the Judicial Panel on
Multidistrict Litigation, 147 F.R.D. 589 (J.P.M.L. 1993).
At the time of the show-cause hearing, Appellants' case was
subject to a conditional transfer order issued by the MDL
Panel.

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and that's all that's
required. You do not have to
go into detail, and the detail
counsel suggests is unheard of
anywhere, and we are not bound
by your Local Rules. I
wouldn't come here to be bound
by your Local Rules.

We understand that here in
this jurisdiction, when in
this jurisdiction, that the
cases stood here, and stood
here for many, many years, and
nothing happened to it. So I
certainly wouldn't come here
to be bound by your Local
Rules . . . And so I am saying
to you, your Honor, these are
MDL cases. They don't belong
here. This is a conduit
court. We are not bound by
your Local Rules with regard
to pretrials or anything else,
and that everything that I
have indicated to you with
respect to the propriety of
the filing, I stand on.

Tr. at 40-41.

After hearing from Appellees' counsel, the court

determined that plaintiffs and defendants were improperly

joined in the Complaint, that the Complaint failed to allege

a factual basis for the court's exercise of subject-matter

and personal jurisdiction, and failed to comply with Local

Rules, MML Orders 3 and 4, which require that asbestos-

related complaints recite minimal facts and be filed in a

particular form. Id. at 42-43. The court then ordered the

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Complaint to be "dismissed without prejudice to the refiling

of separate complaints on behalf of each plaintiff (emphasis

added)" correcting the deficiencies noted during the

hearing. Id. at 43.

Appellants' counsel objected to immediate

dismissal, indicating that an unknown number of plaintiffs'

claims might be barred by relevant statutes of limitation.

The court then asked counsel how much time he would need to

refile individual complaints in compliance with Local Rules,

and counsel responded, "Well, we are very busy, but sixty

days." Id. at 44. Appellees' counsel then requested that

if the court was planning to set a specific date for

refiling, dismissal for failure to adhere to that deadline

should be with prejudice and on the merits, explaining that:

to the extent that new
complaints are not filed on
behalf of the plaintiffs who
came in to Court here, and as
to whom I forbore on asking
for Rule 11 sanctions, I think
the appropriate requirement to
put on this is that if there
is no refiling, that the
dismissals that result be with
prejudice and on the merits
for the reason that a
representation has been made,
and then no action pursuant to
your order is taken, and I
think that the dismissal with
prejudice and on the merits is

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a fair fall out of that, of
that circumstance.

Id. at 45.

The court indicated its agreement, stating that

since Appellants' counsel has "chosen to file an improper

[Complaint] on behalf of 1000 plaintiffs," he now has "the

option of filing proper Complaints on behalf of each one of

the 1000 plaintiffs. To the extent that [he] choose[s] not

to file on behalf of anyone of these named plaintiffs, any

claim by the plaintiff . . . will be dismissed in 60 days

with prejudice." Id. at 46. The court then amended its

order to read as follows:

The order is that this
Complaint will be dismissed in
sixty days from this date.
Without prejudice with respect
to any plaintiff who has
refiled a Complaint that
accords with pretrial orders
numbers three and four, and to
the extent that it seeks to
invoke the maritime
jurisdiction, admiralty
jurisdiction of this Court,
that it also sets forth facts
that support that. To the
extent that any plaintiff does
not refile, that plaintiff's
claim is dismissed with
prejudice, and your objection
is noted. You have a right to
appeal from this order.

Id. at 47 ("October Order").

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Appellants' counsel did not file new complaints on

behalf of any plaintiff. Two days before the deadline set

in the October Order, he filed a motion "to extend time an

additional sixty (60) days to evaluate legal options

pertaining to this cause." Docket No. 183 (Dec. 23, 1993).

The judge dismissed the motion, finding that it had been

improperly filed because counsel failed to make and certify

service on opposing counsel pursuant to Local Rule

5.2(B)(2). Docket No. 183-1 (Jan. 5, 1994). Following two

requests for dismissal filed by Appellees' counsel for

failure to adhere to the court's October Order, the judge

entered the following order dismissing Appellants'

Complaint:

IT IS ORDERED AND ADJUDGED,
After a hearing on the Court's
Order to Show Cause, and in
light of plaintiffs' failure
to refile 1,000 individual
complaints within sixty days
in accordance with the Court's
Order of October 27, 1993,
plaintiffs' claims are
dismissed with prejudice, and
judgment shall enter for
defendants.

Docket No. 185 (Jan. 5, 1994)("January Order").

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II. DISCUSSION

Appellants challenge the court's dismissal of

their Complaint with prejudice on several grounds. They

argue primarily that the dismissal of their Complaint was

based on a finding of improper joinder and that Fed. R. Civ.

P. 21 unequivocally states "[m]isjoinder of parties is not

ground for dismissal of an action."3 Furthermore, given

the explicit wording of Rule 21, Appellants argue that

dismissal with prejudice on the grounds of misjoinder was an

abuse of discretion.4

3Rule 21 states that:

Misjoinder of parties is not
ground for dismissal of an
action. Parties may be
dropped or added by order of
the court on motion of any
party or on its own initiative
at any stage of the action and
on such terms as are just.
Any claim against a party may
be severed and proceeded with
separately.

Fed. R. Civ. P. 21.

4Appellants also allege that Massachusetts Multiple
Litigation Orders 3 and 4 ("MML Orders 3 and 4") are
inconsistent with Fed. R. Civ. P. 20 and 8(a) governing
joinder and pleading requirements and should be declared
invalid. However, Appellants failed to challenge the
substance of these rules to the court below, other than
erroneously asserting that Local Rules do not apply to
asbestos-related cases (see n. 7, infra), nor did they avail

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We reject Appellants' attempt to reduce the

grounds for the January Order to the misjoinder issue only.

We note in passing, however, our agreement with the court's

determination that the Complaint failed to satisfy the

prerequisites for joinder pursuant to Fed. R. Civ. P. 20.5

themselves of the provisions in MML Orders 3 and 4 allowing
them to show good cause as to why the Local Rules should not
apply to their action. Hence, they have waived these issues
on appeal.

5Appellants' Complaint fails to satisfy the threshold
requirement of Fed.R. Civ. P. 20 that the plaintiffs' claim
for relief arise out of "the same transaction, occurrence,
or series of transactions or occurrences." The Complaint is
bereft of factual allegations indicating why 1000 plaintiffs
and 93 defendants belong in the same action. It gives no
indication of whether plaintiffs were injured while serving
on the same vessels or during the same time periods; no
indication of whether they were injured by exposure to the
same asbestos-containing products or equipment, nor any
specification of the products or equipment to which they
were exposed.

This Court notes that Appellants' counsel has been
unsuccessful in his attempts to file nearly identical claims
in other United States District Courts. With regard to the
joinder issue, a court in the District of Maryland wrote:

It is plain to this Court that
the 1,000 plaintiffs' claims,
set forth in this complaint
simply as a skeleton claim of
maritime exposure to asbestos,
without any attempt at
individualization or
description of the particular
circumstances and exposures of
the individual plaintiffs, let
alone the products and/or
defendants alleged to have

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We also note that failure to allege a basis for joinder was

only one of the many weaknesses identified by the court and

opposing counsel when faced with this unwieldy action.

Among other things, the Complaint failed to comply with

Local Rules governing the filing of asbestos claims and

failed to provide a short and plain statement of each

plaintiff's claims sufficient to place defendants on notice

of the nature of the action against them as required by the

Local Rules and Fed. R. Civ. P. 8(a).6

been responsible, do not
satisfy the `same transaction
or occurrence' test of Fed. R.
Civ. P. 20(a).

Aaberg v. ACandS, Inc., 152 F.R.D. 498, 500 (D. Md. 1994).

6 With respect to the Complaint's failure to adhere to
Fed. R. Civ. P. 8(a), we join in the reasoning of the Aaberg

court, which faced a nearly identical claim filed by
Appellants' counsel. After dismissing all but the named
plaintiff for improper joinder, the court proceeded to
dismiss the claim as to the remaining plaintiff for failure
to state a claim under Fed. R. Civ. P. 8(a), noting that:

This is not a pro se

complaint, but, rather, one
filed by counsel, and it
involves only reasonable
expectations of competence to
require that a complaint at
least identify some or all of
the voyages undertaken by the
plaintiff during which he was
allegedly exposed to asbestos
and the specific products (and
manufacturers of those

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Rather than dismissal for misjoinder, the January

Order is more appropriately viewed as a dismissal pursuant

to Fed. R. Civ. P. 41(b) on the grounds that Appellants

failed to comply with the October Order, the Local Rules,

and the Federal Rules of Civil Procedure. Rule 41(b)

provides in relevant part as follows:

Involuntary Dismissal: Effect
Thereof. For failure of the
Thereof.
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 specifies,
a dismissal under this
subdivision and any dismissal
not provided for in this rule,
other than a dismissal for
lack of jurisdiction, for

products) that, plaintiff
claims, caused his injury.
Without these facts in the
complaint, defendants are
helpless to answer or
otherwise respond to it
intelligently. The Court
recognizes that asbestos
litigation is different from
most other federal litigation,
but it still is litigation,
subject to the Federal Rules.
Additionally, the plaintiff
must properly plead proximate
cause, injury, and damage.

Aaberg, 152 F.R.D. at 501.

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improper venue, or for failure
to join a party under Rule 19,
operates as an adjudication

upon the merits.

Fed. R. Civ. P. 41(b).

A district court's "choice of remedy under Rule

41(b) is reviewable only for abuse of discretion." Figueroa

Ruiz v. Alegria, 896 F.2d 645, 647 (1st Cir. 1990). Under

this standard, we have affirmed dismissal with prejudice in

circumstances much like those presented here. In Figueroa

Ruiz, for example, we affirmed dismissal of an action with

prejudice where plaintiffs filed a deficient complaint,

failed to respond to motions to dismiss, and failed to

comply with a court order calling for explication of factual

underpinnings of various RICO claims.

This Court has made clear that a district court's

choice of sanctions for failure to comply with a court order

or the Federal Rules will not be lightly disturbed upon

appeal. See, e.g., Kuehl v. F.D.I.C., 8 F.3d 905 (1st

Cir. 1993), cert. denied, 114 S. Ct. 1545 (1994)(affirming

dismissal with prejudice based on plaintiffs' failure to

remedy Fed. R. Civ. P. 8(a) violations in amended complaint

where magistrate had pointed out deficiencies in initial

complaint and provided direction to plaintiffs about how to

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correct the mistakes); see also HMG Property Investors, Inc.

v. Parque Industrial Rio Canas, Inc., 847 F.2d 908, 918 (1st

Cir. 1988)("where a non-compliant litigant has manifested a

disregard for orders of the court and been suitably

forewarned of the consequences of continued intransigence, a

trial judge need not first exhaust milder sanctions before

resorting to dismissal [with prejudice]").

When the court entered the January Order of

dismissal in this case, it was faced with a deficient

Complaint that Appellants had refused to remedy despite a

court order to do so. The October Order was issued after

Appellants' counsel had objected to a tentative order

dismissing the Complaint without prejudice. Not only did

Appellants' counsel make no effort to comply with the

October Order, but he made no attempt to object to that

Order by filing a motion for reconsideration showing good

cause why it should be vacated or amended.

The court was also confronted with an attorney who

erroneously insisted that he was not bound by Local Rules

and that federal courts are mere conduits for the transfer

of

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asbestos-related cases by the MDL Panel.7 Counsel's

disregard of Local Rules was further reflected by his filing

of a motion for extension of time without making and

certifying service on opposing counsel. In addition, during

the four to five months that the action was pending,

Appellants never responded to some twenty motions to dismiss

filed by individual Appellees.

We have earlier noted that:

7This representation by counsel to the district court
judge was clearly mistaken and directly contradicts the very
MDL rules that he cites. At the time of the October 27
show-cause hearing, Appellants' case was the subject of a
conditional transfer order issued by the MDL Panel. Rule
18, of the Rules of Procedure governing cases tranferred by
the MDL Panel, provides in relevant part that:

The pendency of a motion,
order to show cause,
conditional transfer order or

conditional remand order
before the Panel concerning
transfer or remand of an
action pursuant to 28 U.S.C.
1407 does not affect or

suspend orders and pretrial

proceedings in the district

court in which the action is

pending and does not in any

way limit the pretrial

jurisdiction of that court.

Rules of Procedure of the Judicial Panel on Multidistrict
Litigation, 147 F.R.D. 589, 601 (J.P.M.L. 1993)(emphasis
added).

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Courts cannot function if
litigants may, with impunity,
disobey lawful orders. It has
long been the rule that
federal courts possess plenary
authority `to manage their own
affairs so as to achieve the
orderly and expeditious
disposition of cases.' Link

v. Wabash R. Co., 370 U.S.

626, 630-31 (1962)(footnote
omitted). Though a federal
court may dismiss claims sua

sponte for proper cause, id.,

at 630-31, that inherent power
has been augmented [by Fed. R.
Civ. P. 41(b)].

HMG Property Investors, Inc., 847 F.2d at 916. Faced with

an unmanageable Complaint, the court issued an order that

would have enabled Appellants' claims to go forward in a

form in which settlement or trial of meritorious claims

would have been possible. Counsel failed to comply with

this order, defied Local Rules, and neglected to respond to

motions filed by opposing counsel. The record indicates

that counsel's behavior was extreme, "of a deliberate rather

than inadvertent nature," Figueroa Ruiz, 896 F.2d at 648,

and could "reasonably be construed as an indication of

`plaintiffs' lack of interest in vindicating whatever rights

they might have had.'". Id. (citing Zavala Santiago v.

Gonzalez Rivera, 553 F.2d 710, 712 (1st Cir. 1977)). In

these circumstances, we can find no abuse of discretion in

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the district court's dismissal of Appellants' Complaint with

prejudice. Thejudgment of the district court is hereby

AFFIRMED.

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