Top Entertainment Inc. v. Ortega

United States Court of Appeals
For the First Circuit

No. 01-1934

TOP ENTERTAINMENT INC., ANGELO MEDINA D/B/A PRODUCCIONES
ANGELO MEDINA, AND STAR ENTERTAINMENT, INC.,

Plaintiffs, Appellants,

v.

MARIA ORTEGA D/B/A SERVITEL,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]

Before

Torruella, Circuit Judge,
Coffin, Senior Circuit Judge,
and Selya, Circuit Judge.

Kevin G. Little, with whom Law Offices of David Efron was on
brief, for appellants.
Manuel R. Lopez, with whom Wilson, Suarez & Lopez was on
brief, for appellee.

April 5, 2002
 COFFIN, Senior Circuit Judge. The district court dismissed

appellants’ case after concluding that they and their counsel

flouted a court order and then misled the court in attempting to

justify their disobedience. Appellants claim that their actions

were not so unreasonable as to justify dismissal of the case. We

reject their contention and hold that the dismissal was not an

abuse of discretion.

I. Background

On September 29, 1999, appellants Top Entertainment Inc.,

Angelo Medina d/b/a Producciones Angelo Medina, and Star

Entertainment, Inc. filed a three-page complaint against Maria

Ortega, d/b/a Servitel. The complaint cursorily alleged that

Ortega falsely purported to be appellants’ promoter for a series of

Ricky Martin concerts in Peru and Colombia. Later in the case,

when the district court ordered appellants to more fully explain

the allegations, they made an about-face. Appellants now claim

that the parties entered into an agreement that Ortega later

breached by failing to promote the concerts within its terms.

On May 24, 2000, the district court filed its Initial

Scheduling Conference Call, setting out the details for pre-trial

proceedings. On August 8, the parties attended the initial

scheduling conference. The district court entered an order on

August 30, reflecting the issues discussed during that meeting.

Based on the vagueness of the complaint, the August 30 Order

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required appellants to, inter alia, "submit an informative motion

on or before August 31, 2000 detailing the terms of the contractual

relationship between the parties hereto and how those were

breached." The Civil Notice Log Report (the official record of all

orders sent by the docket clerk) reflected that appellants’ counsel

received the order by facsimile transmission at 1:30 p.m. on August

31, 2000.

Appellants failed to respond to the order and never sought an

extension of time to respond. On November 8, 2000, the court

opined that appellants’ failure to answer was "both perplexing and

disturbing" and issued another order instructing plaintiffs to show

cause on or before November 15 as to why the case should not be

dismissed for failure to comply with the earlier order. On

November 14, appellants responded, claiming that they did not

comply because (1) counsel received the order in September, after

the August 31 deadline; and (2) counsel could not contact

appellants to flesh out the factual allegations because they were

on an extended world tour. The November 14 response contained

approximately one and a half pages of additional factual

allegations.

On May 3, 2001, the district court dismissed the action based

on appellants’ failure to respond timely to the August 30 order.

The district court concluded that appellants’ failure was

especially prejudicial because the absence of meaningful

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allegations in the complaint precluded both appellee from

adequately defending herself and the court from effectively

managing its docket. This timely appeal followed.

II. Discussion

A. The District Court’s Dismissal

A district court’s dismissal of a case for failure to comply

with a court order is reversible only if it was a clear abuse of

discretion. See Damiani v. Rhode Island Hosp., 704 F.2d 12, 17

(1st Cir. 1983) (noting that similar claims have "not received a

sympathetic ear from us"); see also Robson v. Hallenbeck, 81 F.3d

1, 2-3 (1st Cir. 1996) ("Mindful that case management is a fact-

specific matter within the ken of the district court, reviewing

courts have reversed only for a clear abuse of discretion."). We

find no such clear abuse of discretion here.

We begin with appellants’ first contention as to why their

failure to respond was justified, namely, that counsel did not

receive the order until September. At oral argument, counsel

conceded that the August 30 order was "served" on August 31 (i.e.,

his office was in possession of the faxed document), but asserted

that he did not "receive" it until sometime after that date.

Counsel’s misleading of the district court as to this distinction

is unjustifiable. The fact that counsel’s office received the

faxed order in August would be enough to show that this argument

was meritless. However, appellants went beyond the bounds of

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credulity and attempted to excuse their conduct by arguing, in

essence, that their failure to respond timely excused them from

responding at all. We would be inclined to uphold the district

court’s decision to sanction appellants even if it were based

solely on the absurdity of this argument.

Appellants, however, proffered another faulty justification:

that counsel could not contact them to discuss the factual

allegations because they were on an extended world tour. This

explanation is in reality a confession of deficiency in pleading.

Rule 11 of the Federal Rules of Civil Procedure forbids parties and

their counsel from alleging factual contentions that lack

evidentiary support. Given appellants’ about-face regarding the

very basis on which the complaint was filed, it is apparent that

the complaint violated Rule 11. At oral argument, counsel

submitted that the false allegations were a result of

miscommunications between he and appellants. Such

miscommunications do not excuse the misconduct. Had appellants

followed the strictures of Rule 11, counsel would not have needed

to contact appellants during their travels to flesh out the factual

allegations upon which the case was based.

Additionally, counsel had ethical obligations to remain in

contact with appellants while they were traveling. Canon 19 of

Puerto Rico’s Canons of Professional Ethics provides that

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 The lawyer should always keep his client informed about
every important issue which arises in the development of
the case which has been entrusted to him.

P.R. Laws Ann. tit. 4, App. IX, Canon 19; see also Spiller v.

U.S.V. Labs., Inc., 842 F.2d 535, 537 (1st Cir. 1988) ("The

defendant should not be made to suffer because the plaintiff has

failed to establish an effective means of communication with his

attorney."). Counsel’s inability to contact his clients thus is

not a supportable justification. Especially in this electronic

age, where cell phones, email, and pagers have become the norm, it

is simply incredible that counsel could not contact his clients for

more than two months. Even if communication had been impossible,

counsel should have explained the circumstances to the court.

Moreover, to the extent that counsel submitted that he had to meet

personally with appellants to obtain the information, the leanness

of the November 14 response plainly shows that the sought-after

information was hardly voluminous, and easily could have been

ascertained during a short telephone call. The district court was

thus justified in sanctioning appellants based on their deliberate

non-responsiveness.

Appellants alternatively claim that even if the court was

justified in sanctioning them, dismissal was too harsh, and a

lesser sanction would have been appropriate. A single instance of

prohibited conduct cannot be a basis for dismissal if the conduct

was not "particularly egregious or extreme." Benjamin v. Aroostook

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Med. Ctr., Inc., 57 F.3d 101, 107 (1st Cir. 1995). We have given

as examples of such conduct "extremely protracted inaction

(measured in years), disobedience of court orders, ignorance of

warnings, contumacious conduct, or some other aggravating

circumstance." Cosme Nieves v. Deshler, 826 F.2d 1, 2 (1st Cir.

1987). Here, after concluding that the allegations in the

complaint were vague, the court gave appellants the opportunity to

correct those deficiencies. Not only did appellants fail to

respond, but when they finally did, they misrepresented to the

court that they did not timely receive the order, and essentially

declared that appellants’ travel schedule was more important than

the court’s order. All of these actions gave the district court

ample reason to dismiss the case.1

Furthermore, as we have concluded in the past, "it is well

settled that the question on review is not whether we would have

imposed a more lenient penalty had we been sitting in the trial

judge's place, but whether the trial judge abused his discretion in

imposing the penalty he did." Spiller, 842 F.2d at 537; see also

Figueroa Ruiz v. Alegria, 896 F.2d 645, 649 (1st Cir. 1990)

(finding that district court need not consider lesser sanctions

where a party is "guilty not only of simple delay but of

1
We do not factor into our analysis appellee’s catalogue of
appellants’ other alleged transgressions. The district court
relied only on the circumstances surrounding the August 30 order,
which, as discussed above, provided sufficient authority to dismiss
the case.

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disobedience of a court order as well"); Farm Constr. Servs., Inc.

v. Fudge, 831 F.2d 18, 20 (1st Cir. 1987) (holding that a court

need not "attempt less severe sanctions before turning to the

sanction of dismissal"). Likewise, we reject the argument that

appellants should not be punished for the misdeeds of their

counsel.2 See Link v. Wabash R.R. Co., 370 U.S. 626, 633-34 (1962)

("There is certainly no merit to the contention that dismissal

[because of] counsel’s unexcused conduct imposes an unjust penalty

on the client. Petitioner voluntarily chose this attorney as his

representative in the action, and he cannot now avoid the

consequences of the acts or omissions of this freely selected

agent. Any other notion would be wholly inconsistent with our

system of representative litigation. . . ."); see also Farm Constr.

Servs., 831 F.2d at 18 ("This Circuit, following Link, has turned

a ‘deaf ear’ to the plea that the sins of the attorney should not

be visited upon the client.") (collecting cases).

B. Appellee’s Motion for Appellate Sanctions

Finally, we turn to appellee’s motion for appellate sanctions,

based on the frivolity of this appeal. Rule 38 of the Federal

Rules of Appellate Procedure permits us to levy sanctions against

a party that brings a frivolous appeal. The purpose of such a

2
Velazquez-Rivera v. Sea-Land Service, Inc., 920 F.2d 1072
(1st Cir. 1990), the only case cited by appellants in support of
this argument, is not on point. Rather, that case stands only for
the unremarkable proposition that dismissal is an improper sanction
for inadvertent, as opposed to willful, failures.

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penalty is to "discourage litigants from wasting the time and

monetary resources of both their opponents and the nation's

judicial system with legal arguments that do not merit

consideration." E.H. Ashley & Co. v. Wells Fargo Alarm Serv., 907

F.2d 1274, 1280 (1st Cir. 1990). Appellants chose not to file a

substantive response, instead relying on their appellate briefs.

We have already concluded that appellants willfully disobeyed

the district court, and then compounded their problems by

misleading the court as to when the order was received. This was

therefore not a dismissal based on isolated or inadvertent conduct.

Moreover, throughout this appeal, appellants have in one breath

characterized their actions as "unintentional," and in the next,

explained that they deliberately waited until the conclusion of the

world tour to obtain the information. Mere characterizations of

actions as unintentional cannot carry the day. Given the clear

evidence that appellants’ actions were deliberate, even a cursory

reading of the caselaw would have led to the conclusion that the

district court could not have abused its discretion in dismissing

the case. See, e.g., Morgan v. Mass. Gen. Hosp., 901 F.2d 186, 195

(1st Cir. 1990) ("[W]e cannot find that the district court abused

its discretion where, as here, the appellant willfully violated

procedural rules and orders of the district court."). Because both

the record and the relevant caselaw are plain, it is obvious that

appellants had no realistic chance of success in this appeal. See

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Transnational Corp. v. Rodio & Ursillo, Ltd., 920 F.2d 1066, 1072

(1st Cir. 1990) (finding that an appeal is "frivolous when the

appellant should have realized the weakness of his legal

position").

We also conclude that counsel played a significant role in

unnecessarily prolonging this case. As discussed above, counsel

admitted that the allegations in the complaint were false (and thus

violated Rule 11 of the Federal Rules of Civil Procedure).

Furthermore, until oral argument, counsel continued to assert that

he did not timely receive the Order. Therefore, we find that

counsel and appellants should be held jointly and severally liable

for sanctions. See Cruz v. Savage, 896 F.2d 626, 635 (1st Cir.

1990) (assessing sanctions against an attorney for frivolous

appeal); see also Bartel Dental Books Co. v. Schultz, 786 F.2d 486,

491 (2d Cir. 1986) ("Attorneys can be held jointly and severally

liable with their clients under Rule 38 for bringing frivolous

appeals."). As our opinion indicates, the basis for the district

court’s action and for the awarding of sanctions is fully revealed

in the briefs of the parties. The facts are few and the law is

clear. But appellee not only delayed the filing of her motion for

sanctions until shortly before oral argument, but favored us with

thirty pages of briefing. The irritation produced by lengthy

frustration does not justify adding overextended argumentation to

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our workload. Accordingly, we award double costs and attorneys’

fees in the amount of $2000.

The district court judgment is affirmed.

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