Cintron-Lorenzo v. Dept. of Consumer

United States Court of Appeals
For the First Circuit

No. 02-1387

BETHZAIDA CINTRÓN-LORENZO ET AL.,

Plaintiffs, Appellants,

v.

DEPARTAMENTO DE ASUNTOS DEL CONSUMIDOR 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, Circuit Judge,

Coffin and Cyr, Senior Circuit Judges.

Nicolas Nogueras on brief for appellants.
Roberto J. Sánchez Ramos, Solicitor General, Vanessa Lugo
Flores, Deputy Solicitor General, and Jaime Mercado-Almodóvar,
Assistant Solicitor General, on brief for appellees.

December 10, 2002
 SELYA, Circuit Judge. This appeal arises out of an

unsuccessful suit by plaintiff-appellant Bethzaida Cintrón-Lorenzo

(Cintrón) against her former employer, defendant-appellee

Departamento de Asuntos del Consumidor (DACO).1 Before us, Cintrón

challenges both the district court's order dismissing her case for

want of diligent prosecution and its sequential order denying her

motion for reconsideration. For the reasons elucidated below, we

reject her appeal.

The subsidiary facts are fairly straightforward (although

the record is ragged and the briefs confuse certain of the dates).

DACO hired Cintrón as an attorney in or around 1997. The working

relationship did not go smoothly. As a result, Cintrón filed a

multifaceted claim of discrimination with the Equal Employment

Opportunity Commission (EEOC) during the year 2000. In that

document she charged DACO with violating the Americans with

Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213, by refusing to

accommodate her physical disability, and with political

discrimination based upon her support of the Popular Democratic

Party. In due course, the EEOC issued a right-to-sue letter.

1
Cintrón's parents and niece also appear as plaintiffs and
appellants. Because their claims are purely derivative, we treat
the case as if Cintrón was the sole plaintiff and appellant. By
the same token, Cintrón sued not only DACO (an agency of the Puerto
Rican government) but also several public officials, including
Angel E. Rotger-Sabat, José A. Alicea-Rivera, José M. Cintrón-
García, Zenaida García-Villegas, Gladys E. Méndez-Hernández,
Gerardo R. Picó-Del Rosario, and Elvia M. Camayd-Vélez. We refer
to the defendants, collectively, as DACO.

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 On August 15, 2000, Cintrón, armed with the right-to-sue

letter, filed a pro se complaint in the federal district court.

She again claimed that DACO had violated both the ADA and her right

to free political association under the First Amendment. For good

measure, she also alleged, inter alia, violations of the Fifth and

Fourteenth Amendments; 42 U.S.C. §§ 1983 and 1985; various sections

of the Puerto Rico Constitution; and a potpourri of local laws. In

an amended complaint, filed as a matter of right, see Fed. R. Civ.

P. 15(a), she added a Rehabilitation Act claim under 29 U.S.C. §

794.

On November 29, 2000, the district court, citing

Cintrón's failure to seek the issuance and service of summonses,

ordered her to show cause why her case should not be dismissed for

lack of diligent prosecution. See Fed. R. Civ. P. 4(m) (requiring

service within 120 days from the filing of a complaint). The

court's order was entered on the docket on December 4, 2000, and,

shortly thereafter, Cintrón served the defendants. She also filed

a written rejoinder in which she stated that difficulties in trying

to obtain legal representation had led to the delay. She indicated

that she would need an additional forty-five to sixty days to

retain counsel. The court did not respond but, by not pressing the

matter, effectively granted her the desired grace period.

On February 16, 2001, Cintrón requested a further sixty-

day extension in order to procure legal representation. Four days

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later, DACO served the plaintiff with a motion to dismiss the

action for lack of subject matter jurisdiction and failure to state

a claim.2 On March 15, 2001, DACO gave notice that it had served

the plaintiff with a supplementary motion to dismiss. Cintrón did

not respond to either of these filings.

In April of 2001, the further sixty-day extension sought

in Cintrón's February 16 motion expired without an entry of

appearance on her behalf. She remained mute. On June 4, 2001,

DACO filed yet a third motion to dismiss, but Cintrón again

neglected to reply.

On June 21, 2001, the district court advised Cintrón that

it would give her until July 2, 2001 to retain counsel and/or

answer the pending motions. In that order, the court noted that it

had, in effect, given Cintrón extra time; and that the extensions

she had sought had "long elapsed." The court explicitly warned

Cintrón that "[t]his [the grace period lasting through July 2,

2001] is the last extension before considering dismissing the case

for lack of diligent prosecution." The court's admonition went

unheeded: Cintrón did nothing, and, on July 16, 2001, the district

court, true to its word, dismissed the case under Fed. R. Civ. P.

41(b) for lack of prosecution.

2
Alternatively, DACO sought a stay of proceedings pending the
Supreme Court's decision in a case then under consideration. That
case has since been decided. See Board of Trustees of Univ. of
Ala. v. Garrett, 531 U.S. 356 (2001). The stay request is,
therefore, moot.

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 On July 27, 2001, an attorney filed an entry of

appearance on Cintrón's behalf, along with a motion for

reconsideration.3 The court summarily denied the motion. This

appeal followed.

We turn first to the district court's dismissal of the

case for want of diligent prosecution. Cintrón's basic argument is

that she was suffering from many afflictions (physical,

psychological, and emotional) during the spring of 2001. These

culminated in the performance of a biopsy on June 8, followed by a

cancer diagnosis two weeks later. The problem, however, is that

she failed to bring any of these travails to the attention of the

district court in a timeous fashion. Instead, Cintrón dawdled for

upwards of seven months; her only meaningful response during that

period was a filing, early on, that attributed her dilatoriness to

3
Cintrón's counsel styled this motion as a motion for relief
from judgment under Fed. R. Civ. P. 60(b) and contended that the
district court should set aside its earlier order based upon
excusable neglect. That creates an immediate problem for Cintrón,
as a Rule 60(b) motion does not toll the running of the appeal
period on the original judgment (and, therefore, an appeal from the
denial of such a motion does not bring the merits of the underlying
judgment up for review). See Karak v. Bursaw Oil Corp., 288 F.3d
15, 18-19 (1st Cir. 2002); Rodriguez-Antuna v. Chase Manhattan Bank
Corp., 871 F.2d 1, 2 (1st Cir. 1989). Here, however, Cintrón's
motion was filed within ten days of the entry of the district
court's original judgment. Since we are not bound by a party's
choice of label, we elect, favorably to Cintrón, to consider the
motion as a motion to alter or amend the judgment under Fed. R.
Civ. P. 59(e). See Lopez v. Corporación Azucarera de P.R., 938
F.2d 1510, 1513-14 (1st Cir. 1991); Silk v. Sandoval, 435 F.2d
1266, 1267-68 (1st Cir. 1971). This enables us to reach the merits
of the original order of dismissal.

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difficulty in securing the services of outside counsel. In that

filing, she asked for an additional sixty days within which to

retain counsel. But that period — like the initial forty-five-to-

sixty-day period that she had specified — came and went without the

achievement of any noticeable progress. During and after that

interval, she neither secured counsel, nor answered the several

pending motions, nor apprised the court of a need for more time,

nor revealed that her efforts were hampered by medical problems.

Against this backdrop, the order of dismissal cannot be

faulted.4 A district court, as part of its inherent power to

manage its own docket, may dismiss a case sua sponte for any of the

reasons prescribed in Fed. R. Civ. P. 41(b). E.g., Link v. Wabash

R.R. Co., 370 U.S. 626, 629-31 (1962). Lack of diligent

prosecution is such a reason. Id. at 630-31. We review the

district court's dismissal of a case for want of prosecution only

for abuse of discretion. Id. at 633; Tower Ventures, Inc. v. City

of Westfield, 296 F.3d 43, 46 (1st Cir. 2002). In undertaking that

review, we consider all pertinent circumstances and balance the

authority of the court to prevent undue delay against the policy of

4
We analyze this issue in terms of Fed. R. Civ. P. 41(b) and
the district court's inherent case-management powers. In
undertaking this task, we note that the plaintiff has not developed
any argument based upon the district court's local rule governing
dismissals for lack of prosecution, D.P.R.R. 313.1, and, thus, we
do not consider that rule. See United States v. Zannino, 895 F.2d
1, 17 (1st Cir. 1990) (explaining that issues not squarely raised
on appeal are deemed abandoned).

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the law favoring the disposition of cases on the merits. See HMG

Prop. Investors, Inc. v. Parque Indus. Rio Canas, Inc., 847 F.2d

908, 917 (1st Cir. 1988); Richman v. Gen. Motors Corp., 437 F.2d

196, 199 (1st Cir. 1971). We remain mindful, however, that courts

— especially trial courts — "must be given considerable leeway in

exercising their admitted authority to punish laggardly or

noncompliant litigants." Batiz Chamorro v. P.R. Cars, Inc., 304

F.3d 1, 4 (1st Cir. 2002).

Here, the court exhibited extraordinary patience. First,

it warned Cintrón, as early as December of 2000, that she was

risking dismissal for lack of prosecution. Second, when Cintrón

requested up to sixty days to put her case back on track, the court

gave her that indulgence. Third, when she sought a further sixty-

day period within which to regroup, the court again indulged her

(and, indeed, effectively gave her twice that amount of time).

Even at that juncture, the court did not dismiss the action

outright, but, rather, issued another warning and allowed Cintrón

a further opportunity to make amends. Cintrón rewarded this

magnanimity by stonewalling: she never communicated with the court

in an effort either to explain her personal situation or to shed

light on what efforts she was making to obtain legal

representation. In the end, the court was faced with Cintrón's

protracted — and largely unexplained — noncompliance with time

limits imposed by standing rules and specific orders. This

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protracted noncompliance, in the teeth of explicit warnings, amply

justified a termination of the action. See Top Entertainment Inc.

v. Ortega, 285 F.3d 115, 118-19 (1st Cir. 2002); Figueroa Ruiz v.

Alegria, 896 F.2d 645, 648 (1st Cir. 1990); cf. Tower Ventures, 296

F.3d at 46 (explaining that "disobedience of court orders, in and

of itself, constitutes extreme misconduct (and, thus, warrants

dismissal)").

We think it is particularly noteworthy that Cintrón

requested successive extensions of time within which to retain

counsel, thus impliedly promising compliance by the end of that

aggregate period. As we have said, "[w]hen a litigant seeks an

extension of time and proposes a compliance date, the court is

entitled to expect that the litigant will meet its self-imposed

deadline." Tower Ventures, 296 F.3d at 47. Cintrón's failure to

achieve the time line that she herself had suggested weighs heavily

against her. See id. (holding that, absent "excusatory

circumstances," a litigant's failure to adhere to such a deadline

"warrants an inference of deliberate manipulation").

Cintrón's argument that pro se plaintiffs deserve greater

leniency strikes us as disingenuous. There are, of course, some

settings in which such leniency is appropriate. See, e.g., Haines

v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam); Instituto de

Educacion Universal Corp. v. United States Dep't of Educ., 209 F.3d

18, 23-24 (1st Cir. 2000). Here, however, the district court's

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intentions were plain; it issued two explicit warnings. Equally as

important, Cintrón herself is an attorney (albeit not a member of

the federal bar) who should have been well aware of the

consequences of a dogged failure to comply with court orders. At

the very least, Cintrón could — and should — have notified the

court both of her inability to comply and of the reasons for that

noncompliance. Having been warned twice that noncompliance could

result in dismissal, she maintained a stoic silence at her peril.

We turn next to Cintrón's motion for reconsideration.

However that motion is characterized, see supra note 3, we review

the district court's disposition of it for abuse of discretion.

See Teamsters, Chauffeurs, Warehousemen & Helpers Union v.

Superline Transp. Co., 953 F.2d 17, 19 (1st Cir. 1992) (explicating

standard of review referable to Rule 60(b) motions); Appeal of Sun

Pipe Line Co., 831 F.2d 22, 24-25 (1st Cir. 1987) (explicating

standard of review referable to Rule 59(e) motions). We discern no

abuse of the trial court's discretion here.

For convenience, we use the Rule 60(b) standard (although

the outcome would be the same under the jurisprudence of Rule

59(e)). We have made it transparently clear that relief under Rule

60(b) "is extraordinary in nature." Karak v. Bursaw Oil Corp., 288

F.3d 15, 19 (1st Cir. 2002). Accordingly, "motions invoking that

rule should be granted sparingly." Id. In considering such a

motion, we recognize the district court's "intimate, first-hand

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knowledge of the case," and, thus, defer broadly to that court's

informed discretion. Id.

Cintrón claims that her failure to prosecute was the

result of excusable neglect (and, therefore, should have been

forgiven). She identifies her personal problems and her inability

to retain counsel as exceptional circumstances justifying relief

from judgment. We reject this proffer. The determination of what

constitutes excusable neglect in a given case requires that the

court take into account the totality of the circumstances

surrounding the movant's omissions. Pioneer Inv. Servs. Co. v.

Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993); Dávila-

Álvarez v. Escuela de Medicina, 257 F.3d 58, 64 (1st Cir. 2001).

At a bare minimum, a party who seeks relief from judgment

on the basis of excusable neglect must offer a convincing

explanation as to why the neglect was excusable. Graphic Comm'ns

Int'l Union v. Quebecor Printing Prov., Inc., 270 F.3d 1, 5 (1st

Cir. 2001); Hosp. del Maestro v. NLRB, 263 F.3d 173, 175 (1st Cir.

2001) (per curiam). Cintrón has not carried this burden: the

length of the delay was inordinate in this case; Cintrón's

condition varied over time; and even if her ailments interfered to

some extent with her ability to secure counsel — a matter on which

we take no view — she offers no credible excuse for not

communicating her plight to the district court in a timely fashion.

When a litigant (especially a litigant who is trained as a lawyer)

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elects to file a suit pro se, her duty of attending to the case is

not automatically excused by personal tragedy or emotional

upheaval.

The plaintiff's failure to communicate with the court

brings this point into sharp focus. As we explained two decades

ago, a party's "first obligation is to make every effort to comply

with the court's order. The second is to seek consent if

compliance is, in fact, impossible. And the third is to seek court

approval for noncompliance based on a truly valid reason." Damiani

v. R.I. Hosp., 704 F.2d 12, 17 (1st Cir. 1983). Cintrón blatantly

violated this code of conduct: among other things, she failed not

only to inform the district court of her alleged impairments but

also to seek judicial approval for her repeated noncompliance with

procedural rules, court orders, and a series of deadlines. Even

taking her description of her afflictions at face value, nothing

about them excuses this persistent failure to communicate. Giving

due weight to all of the circumstances surrounding Cintrón's

extensive neglect, we would be hard pressed to find it excusable.

A fortiori, we cannot find that the district court's denial of her

motion for relief from judgment was an abuse of discretion.

That ends this aspect of the matter. Although Cintrón's

case evokes sympathy, we often have remarked that hard cases have

a propensity to make bad law. E.g., Burnham v. Guardian Life Ins.

Co., 873 F.2d 486, 487 (1st Cir. 1989). Bearing in mind that the

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district court "is best positioned to determine whether the

justification proffered in support of a Rule 60(b) motion should

serve to override the opposing party's rights and the law's

institutional interest in finality," Karak, 288 F.3d at 19, we

conclude that the circumstances to which Cintrón alludes, taken as

a whole, are not sufficiently excusatory to demand the

extraordinary relief that she requests.

We need go no further. "In our adversary system of

justice, each litigant remains under an abiding duty to take the

legal steps that are necessary to protect his or her own

interests." Cotto v. United States, 993 F.2d 274, 278 (1st Cir.

1993). Given Cintrón's patent disregard of this duty, extending

over many months, we hold that the district court acted within its

discretion both in dismissing Cintrón's case for lack of

prosecution and in denying her motion for reconsideration.

Affirmed.

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