Tower Ventures, Inc. v. City of Westfield

United States Court of Appeals
For the First Circuit

No. 02-1145

TOWER VENTURES, INC.,

Plaintiff, Appellant,

v.

CITY OF WESTFIELD ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

Selya, Circuit Judge,

Coffin and Cyr, Senior Circuit Judges.

Kenneth Ira Spigle on brief for appellant.
Peter H. Martin, Assistant City Solicitor, on brief for
appellees.

July 23, 2002
 SELYA, Circuit Judge. On July 18, 2000, plaintiff-

appellant Tower Ventures, Inc. (Ventures) applied to the Westfield,

Massachusetts, planning board for permission to build a wireless

communication tower at a specified site. After the planning board

voted to deny the permit, Ventures brought suit in the federal

district court against the city and various municipal officials.

Ventures alleged that the planning board's decision was arbitrary

and effectively prevented it from providing cellular coverage in a

significant area, thus violating both the Massachusetts Zoning Act,

Mass. Gen. Laws ch. 40A, § 17, and the Telecommunications Act of

1996, 47 U.S.C. § 332(c). The defendants denied these allegations.

On May 30, 2001, the district court entered a scheduling

order that, inter alia, required Ventures, on or before July 16,

2001, to effectuate certain basic discovery, designate its expert

witnesses, and disclose specified information about those witnesses

and their findings. See Fed. R. Civ. P 16(b), 26(a)(2). The

deadline came and went without any discernible effort by Ventures

to produce the materials required by the scheduling order.

On August 14, 2001, the parties jointly moved to revise

the scheduling order. In that motion, Ventures represented that it

had been unable to comply with the order because of its counsel's

engagements elsewhere and the "summer vacations of certain

individuals needed to provide information to assist in providing

discovery responses." The motion asked the court to extend the

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date for furnishing discovery materials to August 17, 2001, and to

set a deadline of October 19, 2001 for the filing of Ventures's

anticipated summary judgment motion. The court acquiesced and

immediately entered an order memorializing the proposed time line.

Despite the court's order, nothing happened.

On November 6 — eighty-one days after the revised

deadline for Ventures to serve its expert witness disclosure and

responses to discovery, and eighteen days after Ventures's summary

judgment motion was due — the district court, citing Ventures's

serial violations of the court's scheduling order, directed

Ventures to show cause why the action should not be dismissed with

prejudice. On the same date, Ventures moved for a further

extension of the lapsed due dates because of "unexpected delays in

assembling the information" necessary to comply with its discovery

obligations.1

Ventures filed a timely response to the show-cause order,

asserting that it had furnished some draft discovery; that the

defendants had not objected to the requested extension of the

scheduling order;2 and that, in all events, the defendants would

not be prejudiced by a further delay. Pertinently, however,

1
The court's show-cause order and Ventures's motion for a
further extension of time apparently crossed in the mail.
2
This is not to say that there was an agreement among counsel.
The defendants simply elected to leave the matter to the district
court's discretion.

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Ventures gave no reason for its noncompliance beyond a general

statement that its counsel had been preoccupied with the handling

of other matters.

On November 21, 2001, the district court dismissed the

case for failure to comply with court orders and want of

prosecution. Tower Ventures, Inc. v. City of Westfield, No. 00-

30196, slip op. at 4 (D. Mass. Nov. 21, 2001) (unpublished). The

court's rescript emphasized that Ventures had failed to provide an

adequate explanation for its noncompliance: "all the court has

been told is that [Ventures] has, on two occasions now, simply

ignored court-ordered deadlines because of difficulties in

providing basic discovery." Id. at 3.

Ventures moved for reconsideration, arguing, inter alia,

that it had belatedly furnished the overdue discovery materials.

The district court summarily denied the motion. This appeal

followed.

In an era of burgeoning case loads and thronged dockets,

effective case management has become an essential tool for handling

civil litigation. The Civil Rules recognize this reality; they

afford district courts substantial authority to enforce case-

management orders. See Fed. R. Civ. P. 16(f); see also Jones v.

Winnepesaukee Realty, 990 F.2d 1, 5 (1st Cir. 1993).

We have made it plain that "a litigant who ignores case-

management deadlines does so at his peril." Rosario-Diaz v.

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Gonzalez, 140 F.3d 312, 315 (1st Cir. 1998). Consequently, when

noncompliance occurs, the court may choose from a broad universe of

possible sanctions. This flexibility is necessary because the

circumstances attendant to noncompliance are apt to differ widely.

In the last analysis, then, the choice of an appropriate sanction

must be handled on a case-by-case basis. See Robson v. Hallenbeck,

81 F.3d 1, 2 (1st Cir. 1996) (explaining that this exercise

"def[ies] mechanical rules").

From a plaintiff's standpoint, the most dreaded sanction

is dismissal with prejudice. Although this is strong medicine, not

casually to be dispensed, a court may, in appropriate

circumstances, dismiss a case with prejudice for violation of a

judicial order without consideration of lesser sanctions. See,

e.g., Top Entertainment Inc. v. Ortega, 285 F.3d 115, 119 (1st Cir.

2002); Figueroa-Ruiz v. Alegria, 896 F.2d 645, 649 (1st Cir. 1990);

see also Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962).

Although dismissal ordinarily should be employed only when a

plaintiff's misconduct is extreme, see Enlace Mercantil

Internacional, Inc. v. Senior Indus., Inc., 848 F.2d 315, 317 (1st

Cir. 1988), disobedience of court orders, in and of itself,

constitutes extreme misconduct (and, thus, warrants dismissal), see

Cosme Nieves v. Deshler, 826 F.2d 1, 2 (1st Cir. 1987).

This principle applies with undiminished force to

scheduling orders. To manage a crowded calendar efficiently and

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effectively, a trial court must take an active role in case

management. Scheduling orders are essential tools in that process

— and a party's disregard of such orders robs them of their

utility. For that reason, litigants have an "unflagging duty to

comply with clearly communicated case-management orders." Rosario-

Diaz, 140 F.3d at 315.

This does not mean either that every breach of a

scheduling order warrants dismissal or that appellate courts will

rubber-stamp the use of dismissal as a sanction, no matter how

arbitrary. We review a trial court's choice of sanction, dismissal

included, for abuse of discretion. Nat'l Hockey League v. Metro.

Hockey Club, 427 U.S. 639, 642 (1976) (per curiam); Jones, 990 F.2d

at 5. We caution, however, that this standard of review is not

appellant-friendly — and a disgruntled litigant bears a heavy

burden in attempting to show that an abuse occurred. United States

v. One 1987 BMW 325, 985 F.2d 655, 657 (1st Cir. 1993); Spiller v.

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

Against this backdrop, we turn to the facts at hand.

Ventures maintains that dismissal is too harsh a sanction because

its infractions were neither willful nor egregious. It views this

as a case in which counsel on both sides tacitly agreed to conduct

discovery at their own pace, and emphasizes that the resultant

delay did not prejudice the defendants.

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 The difficulty with this argument is that it ignores the

court's independent interest in administering its docket. That

interest is strong, and the court's efforts at stewardship are

undermined where, as here, a party cavalierly flouts the court's

scheduling orders. Unexcused misconduct of that stripe places the

choice of sanction (up to, and including, dismissal) within the

sound discretion of the district court. See Top Entertainment, 285

F.3d at 118; Barreto v. Citibank, N.A., 907 F.2d 15, 16 (1st Cir.

1990).

To be sure, violation of a scheduling order may be

excused if good cause exists for the offender's failure to comply.

See Robson, 81 F.3d at 3. Here, however, the district court's

show-cause order gave Ventures an opportunity to explain its serial

failures to honor the discovery schedule. Ventures responded in

empty generalities, stating only that its counsel had encountered

"unexpected delays" in assembling discovery. This conclusory reply

was wholly uninformative. As the lower court aptly observed, the

"[p]laintiff's explanation explain[ed] nothing." Tower Ventures,

slip op. at 3. If there was a legitimate reason for Ventures's

failure to comply with the scheduling order, it was not

communicated to the district court.3

3
Certainly, the fact that Ventures's counsel was busy with
other cases is no excuse. See, e.g., Mendez v. Banco Popular de
P.R., 900 F.2d 4, 8 (1st Cir. 1990); Pinero Schroeder v. FNMA, 574
F.2d 1117, 1118 (1st Cir. 1978) (per curiam).

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 When, as in this case, a non-complying party has been

afforded an opportunity to explain its failure to abide by a court

order, we give a wide berth to the presider's judgment that, under

all the circumstances, the proffered justification is insufficient.

See Robson 81 F.3d at 5. So it is here: the absence of a

legitimate reason, coupled with the fact that the court previously

had granted Ventures an extension, made dismissal an appropriate

sanction.

If more were needed — and we doubt that it is — the

circumstances surrounding the second extension request are damning.

The initial motion to extend the timetable set by the scheduling

order was filed on August 14, 2001. In it, the parties requested

that the time for Ventures's responses to discovery and designation

of experts be extended to August 17 — a mere three days later. The

court had every right to expect, when it granted the requested

extension, that Ventures would comply immediately. But Ventures

then proceeded to ignore the August 17 deadline that it had

suggested. That is unacceptable. When 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. Mendez v. Banco Popular de P.R., 900 F.2d 4, 6 (1st Cir.

1990). In the absence of excusatory circumstances — and none have

been identified here — the litigant's failure to do so warrants an

inference of deliberate manipulation.

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 In an effort to blunt the force of this reasoning,

Ventures argues that the defendants were not prejudiced by its

procrastination, and, therefore, that dismissal is inapropos. That

assessment is far too glib. Although prejudice to the defendants

can be a factor in determining whether dismissal is a condign

sanction, see, e.g., Robson, 81 F.3d at 3, the analysis is

multifaceted, and the presence or absence of prejudice is not

determinative. To hold otherwise would devalue the judiciary's

strong institutional interest in ensuring that litigants honor

court orders. See Legault v. Zambarano, 105 F.3d 24, 28 (1st Cir.

1997); see also Damiani v. R.I. Hosp., 704 F.2d 12, 16 (1st Cir.

1983).

We need go no further.4 In National Hockey League, the

Supreme Court explained that sanctions for discovery violations

have a dual purpose: they serve not only to punish the offender

but also to deter others from similar misconduct. 427 U.S. at 642-

43. The sanction imposed here achieves both ends. It is

reasonably commensurate to the infraction, and its imposition sends

a clear signal to others that court orders must be obeyed. See id.

at 643 (suggesting that dismissal as a sanction may prevent other

litigants from "feel[ing] freer than we think . . . they should

4
Inasmuch as the district court did not abuse its discretion
in dismissing this action on the basis of Ventures's failure to
comply with the scheduling order, we do not consider whether it
would have been an abuse of discretion to dismiss for want of
prosecution.

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feel to flout other discovery orders of other district courts").

Viewed in this light, the dismissal of this case for noncompliance

with the scheduling order was well within the ambit of the trial

court's discretion.

Affirmed.

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