Pinero Capo v. United States

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1432

JOSE ANTONIO PI ERO CAPO, etc., et al.,

Plaintiffs, Appellants,

v.

UNITED STATES OF AMERICA,

Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Raymond L. Acosta, U.S. District Judge]

Before

Cyr, Circuit Judge,

Bownes, Senior Circuit Judge,

and Boudin, Circuit Judge.

Rafael A. Oliveras Lopez for appellants.

Maria Hortensia Rios Gandara, Assistant United States Attorney,

with whom Charles E. Fitzwilliam, United States Attorney, was on brief

for appellee.

October 20, 1993

Cyr, Circuit Judge. Appellants brought this medical
Cyr, Circuit Judge.

malpractice action in the United States District Court for the

District of Puerto Rico on April 15, 1991. Thereafter, appel-

lants repeatedly violated various discovery-related orders duly

entered by the district court. On November 10, 1992, following

numerous requests and three unsuccessful motions to compel

discovery, the appellee moved for sanctions against appellants,

including the dismissal of all their claims, with prejudice. See

Fed. R. Civ. P. 41(b). On March 15, 1993, almost two years after

its commencement, the district court dismissed the action, with

prejudice, due to appellants' "consistent failure to diligently

prosecute their claims despite the specific deadlines set by the

Court to respond to interrogatories and furnish discovery related

to expert witnesses." Appellants did not move for reconsidera-

tion, but chose to seek appellate relief. We affirm.

We review Rule 41(b) dismissals for abuse of discre-

tion. Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1117 (1st Cir.

1989). After careful consideration of all relevant circumstanc-

es, under the "open-ended balancing test" appropriate in these

matters, Figueroa Ruiz v. Alegria, 896 F.2d 645, 648 (1st Cir.

1990), we conclude that the district court did not abuse its

discretion. We do so in light of appellants' repeated failures

to comply with reasonable discovery requests and with discovery

orders, notwithstanding the district court's clear warnings that

dismissal could

result; the unsuccessful efforts by the district court to assure

compliance by imposing, in the first instance, the lesser sanc-

tion of a $300 fine against appellants' counsel; the months of

delay, and the many motions and conferences before the district

court, occasioned by their dilatory conduct; their counsel's

failure either to take appropriate action in a timely manner or

to present to the district court many of the belated justifica-

tions urged on appeal. In addition, the justifications belatedly

proffered on appeal, credited at face value, provide no explana-

tion for the final two-month delay (January to March 15, 1993)

during which counsel concededly was able to function as counsel

yet failed to comply with the district court's longstanding

discovery orders. Finally, even now counsel offers no explana-

tion for failing to request reconsideration of the district court

dismissal order entered March 15, 1993.

The crux of appellants' argument on appeal is that

their counsel's medical problems prevented him from functioning

as a lawyer. Unfortunately for appellants, this claim presents

too little, too late, to the wrong court. The dilatory behavior

extended at least from February through November, 1992, not-

withstanding that the district court warned of possible dismissal

in March and May, 1992, after having ordered a $300 fine as a

sanction against appellants' counsel.1 Nevertheless, not until

1At a status conference in August 1992, the court also
warned of the possible dismissal of the claims of appellants
Maria de los Angeles and Jose Ivan Pi ero Rivera. The dismissal
of their claims is no longer challenged.

3

December 3, 1992, did appellants' counsel explain to the district

court in an "informational motion" that he had been incapacitated

from October 15 to November 24, 1992. At best, this would excuse

five and one-half weeks of a sustained ten-month delay, and no

sufficient reason is suggested for the failure to prosecute

during other periods. The failure to take any further action in

the district court after the filing of the December, 1992 infor-

mational motion is particularly egregious. Yet even crediting

all representations made by appellants' counsel at oral argument

on appeal, no explanation has been suggested for the final two-

month delay between January and March 15, 1993, or for the

failure to request reconsideration of the dismissal order.

Although we are not unsympathetic to appellants' plight in this

case, we cannot conclude that the district court abused its

discretion by dismissing their claims by reason of their coun-

sel's abject failure to prosecute.2

Affirmed.3
Affirmed.

2In these egregious circumstances, we must heed our own
admonition and "the teaching of the Court in Link v. Wabash

Railroad Co., 370 U.S. 626 (1962), that the acts or omissions of

counsel are visited upon the client[,]" United States v. One Lot

of $25,721.00 in Currency, 938 F.2d 1417, 1422 (1st Cir. 1991);

see also Corchado v. Puerto Rico Marine Management, Inc., 665

F.2d 410, 413 (1st Cir. 1981), cert. denied, 459 U.S. 826 (1982).

Of course, this means that appellants will be left to their
remedies against counsel.

3We direct the Clerk to provide the clerk of the district
court with a copy of this opinion, in order that copies (and
Spanish translations) may be mailed directly to each appellant by
the district court.

4