Bachier-Ortiz v. Colon-Mendoza

United States Court of Appeals
For the First Circuit

No. 02-1982

IRMA E. BACHIER-ORTIZ, ET AL.,

Plaintiffs, Appellants,

v.

HECTOR L. COLON-MENDOZA, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Selya, Lipez and Howard,
Circuit Judges.

Francisco R. Gonzalez on brief for appellants.
Eileen Landron Guardiola, Eduardo A. Vera Ramirez and Landron
& Vera, Francisco L. Acevedo Nogueras and Acevedo Nogueras & Pagan,
on brief for appellees.

June 12, 2003
 Per Curiam. Plaintiff-appellant Irma Bachier-Ortiz brings

this appeal from the summary dismissal of her action pursuant to 42

U.S.C. §1983 against Hector L. Colon-Mendoza, mayor of Guayama,

various other individuals, and the Municipality of Guayama. The

district court summarily dismissed her case after her counsel

failed (a) to meet with opposing counsel to draft a proposed

pretrial order, and (b) to attend the pretrial conference. Counsel

made a timely motion for reconsideration, stating that human error

in calendar-keeping led to his being unaware of the dates for the

meeting and conference, and, as a result, that he had been out of

Puerto Rico for follow-up cancer treatment and for his son's

graduation from college. He requested that the court employ

sanctions against him rather than the remedy of dismissal.

We review the district court's dismissal of a case as a

sanction for abuse of discretion. See Velazquez-Rivera v. Sea-Land

Serv., Inc., 920 F.2d 1072, 1075 (1st Cir. 1990). We do not

lightly disturb a district court's ruling -- but "dismissal should

not be viewed either as a sanction of first resort or as an

automatic penalty for every failure to abide by a court order."

Young v. Gordon, ___F.3d __, __ (1st Cir. 2003) [No. 02-1958, slip.

op. at 8]. When non-compliance occurs, both the nisi prius court

and the court of appeals must look to the totality of the

circumstances. See id.; see also Tower Ventures, Inc. v. City of

Westfield, 296 F.3d 43, 46 (1st Cir. 2002). In all events, we do

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not merely rubber-stamp a district court's imposition of the

ultimate sanction of dismissal.

In general, the sanction of dismissal for lack of prosecution

is appropriate only when plaintiff's misconduct is serious,

repeated, contumacious, extreme, or otherwise inexcusable. See

Batiz Chamorro v. P. R. Cars, Inc., 304 F.3d 1, 5 (1st Cir. 2002).

When a dismissal is based on a pattern of delay or willful

behavior, this court typically has found no abuse of discretion in

a district court's order of dismissal. See Young, __ F.3d at __

[No. 02-1958 slip op. at 9]; Batiz Chamorro, 304 F.3d at 5; Tower

Ventures, 296 F.3d at 46. But when an isolated incident appears to

have been the sole basis for the dismissal, we have sometimes

vacated the order (as long as some plausible excusatory

circumstances exist). E.g. Crossman v. Raytheon Longterm Disab.

Plan, 316 F.3d 36, 39 (1st Cir. 2002); Velazquez-Rivera, 920 F.2d

at 1076-77.

In this case, the district court gave as its reason for

dismissal only that counsel missed a meeting to draft the proposed

pretrial order and the associated pretrial conference. The court

did not question the sincerity of the explanation advanced by

plaintiff's counsel for the lapse. This case has not, so far as we

can discern, been marred by any persistent disregard of court

orders, deliberate stalling, or repeated nonchalance. This case

has not been unreasonably delayed. By the same token, the opposing

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parties have not been prejudiced; in fact, they had moved twice for

postponement of the pretrial conference. We conclude, therefore,

that Crossman and Velazquez control the result here: counsel's

single, negligent failure to calendar the pretrial order deadline

and the associated pretrial conference does not sink to a level of

behavior warranting the ultimate sanction of dismissal.

We need go no further. In light of the foregoing, we grant

the appellees' motion to submit this case for decision without oral

argument. See 1st Cir. R. 34. We summarily vacate the order of

dismissal and remand to the district court for further proceedings.

We envision that the district court, in its discretion, may impose

some lesser sanction on the plaintiff or on her attorney in lieu of

the vacated dismissal.

Vacated and remanded. No costs.

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