Robson v. Hallenbeck

April 15, 1996
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 95-1595

J. DONALD ROBSON, ET AL.,

Plaintiffs, Appellants,

v.

GILMAN HALLENBECK, ET AL.,

Defendants, Appellees.

No. 95-1983

J. DONALD ROBSON, ET AL.,

Plaintiffs, Appellees,

v.

GILMAN HALLENBECK, ET AL.,

Defendants, Appellants.

ERRATA SHEET
ERRATA SHEET

The opinion of this court issued on April 3, 1996 is amended as

follows:

On page 7, paragraph 2, line 2, add the word "to" before the word

"meet."

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 95-1595

J. DONALD ROBSON, ET AL.,

Plaintiffs, Appellants,

v.

GILMAN HALLENBECK, ET AL.,

Defendants, Appellees.

No. 95-1983

J. DONALD ROBSON, ET AL.,

Plaintiffs, Appellees,

v.

GILMAN HALLENBECK, ET AL.,

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Edward F. Harrington, U.S. District Judge]

Before

Selya, Boudin and Lynch,

Circuit Judges.

Michael T. Phelan for plaintiffs.

John C. Ottenberg with whom Berry, Ottenberg, Dunkless & Parker

was on consolidated brief for defendants.

April 3, 1996

BOUDIN, Circuit Judge. The plaintiffs, J. Donald and

Sandra Robson, brought suit against Gilman Hallenbeck and Dan

DiCarlo, alleging that the defendants breached fiduciary

duties owed to the Robsons, administered a trust in a grossly

negligent manner, and committed fraud. The details of this

action need not be discussed, since the principal issue in

the plaintiffs' appeal is procedural and we decline the

defendants' invitation to reach the merits on their cross-

appeal. But because the case was ultimately dismissed on

account of the plaintiffs' conduct in pre-trial proceedings,

a description of the events leading up to the dismissal is

required.

At a pre-trial conference on September 30, 1994, the

district judge entered an order that required the parties to

meet a series of deadlines in preparation for trial, which

was set for May 1, 1995:

By April 10, 1995, the parties were to file a
stipulation of uncontested facts, together with a
statement of issues to be tried and a list of
witnesses for each side.

By April 17, the parties were to submit lists
of proposed exhibits.

By April 24, the parties were to file notices
of any objections to proposed exhibits or expert
witnesses.

The parties were also directed to make exhibits available to

the opposing party for inspection, to file a trial brief by

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the day of trial, and to file requests for rulings of law on

the day of trial.

The plaintiffs' attorney, Michael Phelan, failed to

attend the September 1994 pre-trial conference, but received

notice of the order and its timetable. Under circumstances

described more fully below, the plaintiffs did not meet the

April 10 deadline for filing the stipulation of uncontested

facts. The plaintiffs also failed to file a list of proposed

exhibits by April 17. The parties dispute whether the

plaintiffs made their exhibits available for review by

defense counsel reasonably in advance of April 24, the

deadline for filing objections to proposed exhibits.

Finally, the plaintiffs filed their requests for rulings of

law on May 9, eight days late.

On May 1, when the trial was scheduled to begin,

attorney Phelan appeared in court 15 minutes late and

discovered that the judge had already dismissed the case with

prejudice for failure to comply with the court's pre-trial

order. The plaintiffs filed a motion to vacate the order of

dismissal; the district judge denied it without opinion on

May 24, 1995. On June 22, 1995, the judge denied without

opinion the plaintiffs' motion to reconsider their motion to

vacate.

On appeal, the Robsons argue that the district court

abused its discretion in dismissing the case because their

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actions did not amount to "extreme" misconduct, see Enlace

Mercantil Internacional v. Senior Industries, 848 F.2d 315,

317 (1st Cir. 1988), that any violations of the pre-trial

order were excusable and did not prejudice the court or the

defendants, and that a lesser sanction would have been

appropriate.

It is hard to find an area of law in which the governing

rules are, and probably have to be, so vague. Admittedly, a

district court has broad authority to enforce pre-trial

discipline and to dismiss a case for failure to obey pre-

trial orders. Fed. R. Civ. P. 16(f), 41(b); see Link v.

Wabash Railroad Co., 370 U.S. 626 (1962). The difficulty is

that the range of circumstances is so vast, and the problems

so much matters of degree, as to defy mechanical rules. What

the cases, taken together, do is to set forth a list of

pertinent considerations.

Among those commonly mentioned (this list is not

complete) are the severity of the violation, the legitimacy

of the party's excuse, repetition of violations, the

deliberateness vel non of the misconduct, mitigating excuses,

prejudice to the other side and to the operations of the

court, and the adequacy of lesser sanctions.1 Mindful that

case management is a fact-specific matter within the ken of

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

Cir. 1990); 9 C. Wright & A. Miller, Federal Practice and

Procedure 2370 (2d ed. 1995).

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the district court, reviewing courts have reversed only for a

clear abuse of discretion. Damiani v. Rhode Island Hosp.,

704 F.2d 12, 17 (1st Cir. 1983) (collecting cases).

There is also a procedural dimension. Although Rules 16

and 41 do not formally require any particular procedure,

counsel's disregard of a prior warning from the court

exacerbates the offense, and the lack of warning sometimes

mitigates it. Velazquez-Rivera v. Sea-Land Service, Inc.,

920 F.2d 1072, 1078 (1st Cir. 1990). Ordinarily, the

plaintiff is given an opportunity to explain the default or

argue for a lesser penalty; but again there is no mechanical

rule. Link, 370 U.S. at 632. The presence or absence of an

explanation by the district court may also be a factor. See

Damiani, 704 F.2d at 17.

In this instance, our main concern is that despite an

apparent pattern of noncompliance by plaintiffs' counsel,

factual disputes exist over the extent of the misconduct,

including excuses offered as to each of the episodes, that

have never been resolved by the district court. Cf. Richman

v. General Motors Corp., 437 F.2d 196, 199-200 (1st Cir.

1971). If we were dealing in this case with a minor act of

negligence rather than a pattern, dismissal might appear

harsh where no prior warning was given and there was no

showing of special prejudice to the opponents or the court.

See Velazquez-Rivera, 920 F.2d at 1077-78.

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In considering the likely bases for the dismissal, we

put to one side plaintiffs' failure to attend the pre-trial

hearing, since there is no indication that the district court

considered it in deciding to dismiss the case. We also

ignore Phelan's 15-minutes late arrival on the day of trial,

because by the time he arrived for trial, the court had

already dismissed the case without considering whether his

lateness was excused. What remains is to consider whether

the missed pre-trial deadlines, taken together, provide an

adequate basis for dismissal. They might well do so but in

each instance Phelan has offered some excuse that has never

been addressed.

1. Late filing of stipulation of uncontested facts.

The parties did not start discussing the stipulation until

April 3, when the defendants' attorney, John Ottenberg, sent

Phelan a draft of a proposed stipulation by fax. On April 6,

Ottenberg advised that he wished to add one witness for the

defense. On April 7, a Friday and the last business day

before the stipulation was due, Phelan sent back a draft with

changes. The defendants say that in addition to modifying

the proposed facts, Phelan made unauthorized alterations to

the defendants' list of witnesses.

The defendants found some of these changes unacceptable

and sent another draft to Phelan on that same day. Phelan

did not respond until after the close of business on April

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10, when he sent a further draft, which the defendants

rejected. No joint stipulation was filed, and on April 11,

Phelan contacted a court clerk, who advised him to file his

own version of the stipulation. Although defendants filed a

separate stipulation on April 12, Phelan did not do so until

April 20.

Phelan says he contracted a sinus and lung infection

during the time the parties were negotiating the stipulation.

This might account for his delay in filing his version of the

stipulation, but it does not explain why he waited so long

before starting to discuss the stipulation with the

defendants. At best, Phelan's conduct appears careless, but

it is difficult to tell without knowing why Phelan did

nothing until Ottenberg seized the initiative.

2. Late filing of exhibit list due April 17. Phelan

also failed to meet the deadline of April 17 for filing a

list of exhibits; he filed the list a week late on April 24.

Phelan claims that his illness prevented his filing the

exhibits on time, and further that a court clerk told him

"there should be no problem" if he filed the list within a

week after the deadline. Phelan's position is weakened by

his failure to file a motion, but there is certainly

mitigation if he did suffer a serious illness in this time

frame, a matter the district court did not address.

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3. Failure to make exhibits available for review.

Ottenberg says he requested access to the plaintiffs'

exhibits on April 3 and again on April 17, but that Phelan

did not respond. Phelan, in contrast, asserts that the

exhibits were available for review on April 14. It is hard

to know which account is correct, and the district court made

no finding on the point.2

On appeal, Phelan argues that the pre-trial order did

not set a deadline for making exhibits available to the other

side. But on any reasonable reading, the order required the

parties to make exhibits available reasonably in advance of

April 24, when objections to the proposed exhibits were due.

Far from supporting Phelan, this defense detracts from his

position.

The need for remand is evident. If Phelan was at fault

in all three episodes, dismissal was within the district

court's discretion; on the other hand, Phelan offers excuses

for all three and there are no findings to resolve the

matter. We leave it open to the district court to reinstate

2There is some reason to question Phelan's claim that
the exhibits were available as early as April 14. According
to the defense, on April 27, Ottenberg's paralegal called
Phelan and offered to exchange copies of exhibits. Phelan
said he would have his exhibits copied by the next day. On
April 28, the last business day before trial, Phelan informed
Ottenberg that the copies were not ready but the exhibits
were available for review and Ottenberg could use the copier
in Phelan's office.

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the dismissal if it supportably finds a pattern of unexcused

noncompliance with the court's order.

We reject now the Robsons' alternative arguments as to

why such a pattern even if proved could not justify dismissal

in this case. First, the Robsons argue that there is no

showing of prejudice, such as the loss of a witness for the

defense. In our view, such a specific showing of prejudice

would aggravate the misconduct, but is not necessary to

justify dismissal. Cf. Figueroa Ruiz v. Alegria, 896 F.2d

645, 649 (1st Cir. 1990). Repeated disobedience of a

scheduling order is inherently prejudicial, because

disruption of the court's schedule and the preparation of

other parties nearly always results.

Second, the Robsons argue that the sanction of dismissal

is too severe in these circumstances. There might be some

merit to the plaintiffs' argument if we were faced with a

single instance of careless misconduct. A succession of

violations, however, indicating a general unwillingness to

comply with a court-imposed scheduling order, is for us

enough to justify dismissal. Calendars are simply too

crowded for parties to treat scheduling orders as optional

and to conduct trial preparations at their own convenience.

Finally, the Robsons point to the absence of warning

that the court was considering dismissal. This may be a

pertinent factor in evaluating a dismissal, especially if the

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conduct in question did not violate a clear preexisting

requirement. In this case, however, the scheduling order is

clear and by its terms requires the parties to meet certain

deadlines. A court need not provide warning that dismissal

will result from repeated violations of such an order.

The defendants have cross-appealed from the district

court's denial on March 9, 1994 of their motion to dismiss,

for judgment on the pleadings, and for summary judgment. The

denial of the defendants' motion is not independently

appealable as a final order. See Pedraza v. Shell Oil Co.,

942 F.2d 48, 54-55 (1st Cir. 1991), cert. denied, 502 U.S.

1082 (1992). This court has said it will generally not

review denials of summary judgment or the like ancillary to a

different appealable order, although it has stopped short of

saying such review is always foreclosed. Id.; see 10 C.

Wright et al., Federal Practice and Procedure 2715, at 636-

38 (2d ed. 1983).

Assuming this court could choose to review the denial of

defendants' motions on an ancillary basis, we are certain

that this is not the case for such an exception to the

general rule against such review of an otherwise non-final

order. The cross-appeal here attempts to present a factually

complex summary judgment claim that is not closely related to

our review of the appealable order dismissing the case for

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misconduct. There is no simple, abstract legal question

whose resolution now might avoid a lengthy trial.

In vacating the order of dismissal and remanding for

further proceedings, we are not suggesting that explicit

findings with respect to a party's misconduct and excuses are

necessary for every such dismissal. In many cases findings

may be easily inferred from the record. What is difficult

here is that there are at least three different episodes of

misconduct, the plaintiffs' counsel has proffered an excuse

for each, and the district court has not expressed any view

on the matter that would permit us to provide effective

review.

The judgment of the district court is vacated and the

case is remanded for further proceedings.

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