Young v. Gordon

United States Court of Appeals
For the First Circuit

No. 02-1958

DAVID A. YOUNG,

Plaintiff, Appellant,

v.

KENNETH GORDON ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

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

Before

Selya, Circuit Judge,

Coffin, and Porfilio,* Senior Circuit Judges.

William E. Conner on brief for appellant.
Kenneth I. Gordon, pro se ipso, on brief for appellee Gordon.
James Romeyn Davis, pro se ipso, and Sheldon, Davis & Wells,
PC on brief for appellee Davis.

June 3, 2003

_______________
*Of the Tenth Circuit, sitting by designation.
 SELYA, Circuit Judge. On January 29, 2001, plaintiff-

appellant David A. Young brought suit against two fellow attorneys,

Kenneth Gordon and J.R. Davis, for breach of contract and tortious

interference with business relationships. After nearly sixteen

months of acrimonious pretrial skirmishing, the district court

dismissed the action, citing Young's repeated failures to comply

with court orders. The court subsequently denied his motion for

reconsideration. Young appeals. We affirm.

The relevant background facts largely relate to matters

of procedure and timing. On May 22, 2001 (about eleven weeks after

Young filed suit), the district court convened a scheduling

conference. See Fed. R. Civ. P. 16. The court ordered the parties

to submit a joint statement within thirty days. See D. Mass. R.

16.1(d) (requiring "a joint statement containing a proposed

pretrial schedule," including, inter alia, a discovery plan and a

schedule for the filing of motions). Despite two letters from the

defendants seeking his participation in preparing the requested

statement, Young did nothing. The court eventually accepted the

defendants' unilateral version of the statement and set June 30,

2002, as the cut-off date for pretrial discovery.

In addition to answering Young's amended complaint, the

defendants counterclaimed. Although Young did not respond to these

counterclaims, the district court twice rebuffed defense motions

for entry of default. Finally, the court, acting sua sponte,

-2-
ordered Young to answer the counterclaims within twenty days or

face the dismissal of his action. Young complied.

Over time, Young filed five motions to compel discovery,

all of which were denied. Gordon filed three motions to compel,

all of which were granted. Despite the court's serial orders,

Young's discovery responses remained anemic. On April 1, 2002,

Gordon moved to dismiss under Fed. R. Civ. P. 37(b)(2)(C). The

district court denied the motion.

The Nation was girding for war and, on May 3, Young's

counsel told the defendants that Young, an officer in the Army

Reserve, might be "called up at any time." On Young's initiative,

the parties agreed to take Gordon's deposition on June 10 and

Young's on June 12. In early June, however, Young reneged; he

declared that he would not appear, even if ordered by the court,

unless Gordon's deposition could be completed in one day (an

unlikely prospect). This volte-face led the defendants to file an

emergency motion to compel adherence to the previously agreed

deposition schedule. On June 10, the court granted the motion and

ordered Young to appear for his deposition within seven days or

face summary dismissal of his action.

Young chose not to appear. Instead, he filed a motion to

reconsider on June 13, in which he informed the court that his

counsel's mother had died during the preceding week. The court was

unimpressed; although the death had occurred and Young's attorney

-3-
had traveled out of state for the funeral, he had returned to

Massachusetts by June 11 (prior to the filing of the motion to

reconsider), and, despite offers from the defendants to reschedule

his deposition for dates after the expiration of the seven-day

period, Young had declared himself unavailable. Not surprisingly,

the district court denied the motion to reconsider.

On June 18, the defendants again moved to dismiss

pursuant to Rule 37(b)(2)(C).1 Young opposed the motion but did

not offer any date on which he would agree to sit for his

deposition. On June 25, the district court dismissed the case

based on Young's failure to comply with the June 10 order. The

court characterized Young's defiance as his "third such violation

of a Court Order."

Coincidentally, Young began his deposition on June 26 (a

day after the court had dismissed his action, but before the

parties had received notice of the dismissal order). The

deposition was not completed on that date and, in view of the

court's order, was never resumed. On July 8, Young moved to

reconsider the dismissal, pointing out that he had finally made

himself available to be deposed. On July 9, the district court

denied the motion. This appeal ensued.

1
The rule states in pertinent part that if a party fails to
obey an order to provide or permit discovery, the court may impose
sanctions (including an order "dismissing the action or proceeding
or any part thereof, or rendering a judgment by default against the
disobedient party . . . ."). Fed. R. Civ. P. 37(b)(2)(C).

-4-
 Before we reach the merits, we pause to consider the

defendants' attempt to shelve the appeal on procedural grounds.

This endeavor has two aspects. First, the defendants strive to

persuade us that Young's notice of appeal was untimely. We are not

convinced.

In a civil case in which the United States is not a

party, a notice of appeal ordinarily must be filed within thirty

days following the entry of final judgment. See Fed. R. App. P.

4(a)(1); see also Air Line Pilots Ass'n v. Precision Valley

Aviation, Inc., 26 F.3d 220, 223 (1st Cir. 1994). As the

defendants correctly note, Young's notice of appeal was not

docketed until July 29, 2002 — more than thirty days after the

entry of the June 25 judgment. The defendants view the passage of

time as fatal, but they are reading the record through rose-colored

glasses.

In particular, the defendants fail to appreciate the

significance of Young's timely motion for reconsideration. Under

our precedents, we may treat that motion as filed under Fed. R.

Civ. P. 59(e) (which allows the filing of a post-trial motion to

alter or amend a judgment). See, e.g., Cintrón-Lorenzo v.

Departamento De Asuntos Del Consumidor, 312 F.3d 522, 525 n.3 (1st

Cir. 2002); Batiz Chamorro v. P.R. Cars, Inc., 304 F.3d 1, 3-4 (1st

Cir. 2002). Such a motion tolls the running of the appeal period

as long as it is filed no later than ten days after entry of the

-5-
judgment.2 See Fed. R. App. P. 4(a)(4); Fed. R. Civ. P. 59(e).

Thereafter, an order disposing of the motion restarts the appeal

period. Air Line Pilots Ass'n, 26 F.3d at 223. Because the appeal

period began anew upon the district court's denial of his Rule

59(e) motion, Young's notice of appeal was filed within the

allotted thirty-day interval.

The defendants' second procedural ground is equally

unavailing. They argue that Young's notice of appeal, which only

references the denial of the motion for reconsideration, does not

suffice to bring the dismissal order before us. See Fed. R. App.

P. 3(c) (requiring, inter alia, that a notice of appeal "designate

the judgment, order, or part thereof appealed from"). Under the

case law, this boils down to a question of whether, notwithstanding

the opaque language of the notice, the appellant's intent to appeal

the underlying judgment was clear. E.g., Smith v. Barry, 502 U.S.

244, 248 (1992); Mariani-Giron v. Acevedo-Ruiz, 945 F.2d 1, 3 (1st

Cir. 1991). There is no need to belabor the point. It suffices to

say that, upon whole-record review, Young's desire to appeal from

the underlying judgment is sufficiently plain and that, in any

event, the defendants were not misled by the inartfully drafted

notice of appeal. We therefore reject the argument that the scope

2
The ten-day period is computed without counting weekends and
holidays. See Fed. R. Civ. P. 6(a); see also Roque-Rodriguez v.
Lema Moya, 926 F.2d 103, 107 (1st Cir. 1991). On this basis, Young
had until July 10 to file his Rule 59(e) motion. The motion was,
therefore, timely.

-6-
of this proceeding should be limited to the denial of the motion

for reconsideration. See, e.g., Foman v. Davis, 371 U.S. 178, 181-

82 (1962); Batiz Chamorro, 304 F.3d at 4; Town of Norwood v. New

Engl. Power Co., 202 F.3d 408, 415 (1st Cir. 2000).

We now proceed to the heart of the matter: the propriety

of the dismissal. We begin our analysis with the unarguable

proposition that courts cannot effectively administer justice

unless they are accorded the right to establish orderly processes

and manage their own affairs. Chambers v. NASCO, Inc., 501 U.S.

32, 43 (1991). The authority to order sanctions in appropriate

cases is a necessary component of that capability. HMG Prop.

Investors, Inc. v. Parque Indus. Rio Canas, Inc., 847 F.2d 908, 916

(1st Cir. 1988) (remarking that "[c]ourts cannot function if

litigants may, with impunity, disobey lawful orders"). The

sanction of dismissal is an important part of the armamentarium

that the law makes available to trial courts. See Link v. Wabash

R.R. Co., 370 U.S. 626, 630-31 (1962). Moreover, in the federal

system the Civil Rules reinforce and augment the inherent power of

district courts to dismiss cases for disregard of judicial orders.

See, e.g., Fed. R. Civ. P. 37(b), 41(b).

To be sure, dismissal ordinarily should be employed as a

sanction 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). We have recognized, however, that

-7-
disobedience of court orders is inimical to the orderly

administration of justice and, in and of itself, can constitute

extreme misconduct. Tower Ventures, Inc. v. City of Westfield, 296

F.3d 43, 46 (1st Cir. 2002); Cosme Nieves v. Deshler, 826 F.2d 1,

2 (1st Cir. 1987). Still, dismissal should not be viewed either as

a sanction of first resort or as an automatic penalty for every

failure to abide by a court order. When noncompliance occurs, the

ordering court should consider the totality of events and then

choose from the broad universe of available sanctions in an effort

to fit the punishment to the severity and circumstances of the

violation. See Tower Ventures, 296 F.3d at 46.

In the last analysis, the choice of an appropriate

sanction must be handled on a case-by-case basis. See id.; see

also Robson v. Hallenbeck, 81 F.3d 1, 2 (1st Cir. 1996) (explaining

that this exercise "def[ies] mechanical rules"). For that reason,

appellate panels traditionally give district courts considerable

leeway in the exercise of the latter's admitted authority to punish

noncompliant litigants. E.g., Batiz Chamorro, 304 F.3d at 4. It

follows that "the trier's determination to dismiss a case for such

a reason should be reviewed only for abuse of discretion." Aoude

v. Mobil Oil Corp., 892 F.2d 1115, 1117 (1st Cir. 1989). In

undertaking that review, we consider all the pertinent

circumstances and balance a myriad of factors, including the trial

court's need to maintain order and prevent undue delay, the

-8-
prejudice (if any) to the offender's adversary, and the salutary

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

Prop., 847 F.2d at 917; Richman v. Gen. Motors Corp., 437 F.2d 196,

199 (1st Cir. 1971). This standard of review is not appellant-

friendly — and a sanctioned litigant bears a weighty burden in

attempting to show that an abuse occurred. See Tower Ventures, 296

F.3d at 46; Spiller v. U.S.V. Labs., Inc., 842 F.2d 535, 537 (1st

Cir. 1988).

In this instance, the court dismissed the case because

Young, having been forewarned of the likely consequences of

noncompliance, failed to abide by a court order to appear for a

deposition within seven days. Young admits the infraction but

argues that it was beyond his control. In this regard, he points

to his status as an officer in the United States Army Reserve and

contends that he could not commit to a deposition because he was on

the verge of being "shipped out at any time." This contention will

not wash. The fact of the matter is that Young received no such

marching orders at any time during the spring of 2002. We fail to

see how the possibility of impending military service prevented him

from complying with the court's ukase.

Next, Young asseverates that his attorney was compelled

to travel out of state due to a death in the family. That is true

as far as it goes, but it does not go very far. This asseveration

overlooks the undeniable fact that the attorney returned to

-9-
Massachusetts on June 11, 2002. As of that date, Young still had

ample time to comply with the court's order. He did not do so.

Young also maintains that the sanction was too harsh

because he was acting in good faith. This is at best a debatable

question — and one on which the district court had the better coign

of vantage. At any rate, a finding of bad faith is not a condition

precedent to imposing a sanction of dismissal. See, e.g., Reg'l

Refuse Sys., Inc. v. Inland Reclam. Co., 842 F.2d 150, 156 (6th

Cir. 1988); Farm Constr. Servs., Inc. v. Fudge, 831 F.2d 18, 21

(1st Cir. 1987). Certainly, the mere fact that a litigant or a

lawyer may have had other priorities does not constitute a

bulletproof excuse for noncompliance with a court order. See,

e.g., Batiz Chamorro, 304 F.3d at 5; Tower Ventures, 296 F.3d at 47

n.3; Pinero Schroeder v. FNMA, 574 F.2d 1117, 1118 (1st Cir. 1978)

(per curiam).

In all events, it is axiomatic that "a litigant who

ignores a case-management deadline does so at his peril." Rosario-

Diaz v. Gonzalez, 140 F.3d 312, 315 (1st Cir. 1998). The

circumstances here do not suggest that this case is a viable

candidate for a relaxation of this principle. For one thing, Young

had a documented history of disregarding the court's orders and/or

applicable rules. Among other errors, he refused to participate in

the framing of the joint statement; he did not respond to the

defendants' counterclaims until the court threatened to dismiss his

-10-
case; and he did not provide adequate discovery responses despite

a series of orders compelling him to do so. For another thing, it

was Young who originally suggested a stipulation scheduling the

parties' depositions for June 10 and June 12 — and who then

reneged. Young's failure to achieve the time line that he himself

had recommended weighs heavily against him. Cf. Tower Ventures,

296 F.3d at 47 (explaining that "when a litigant seeks an extension

of time and proposes a compliance date, the court is entitled to

expect that the litigant will meet [his] self-imposed deadline");

Mendez v. Banco Popular de P.R., 900 F.2d 4, 6 (1st Cir. 1990)

(similar).

Young next calls our attention to the acrimony that

permeated the litigation. Because the matter was so contentious,

he asserts, every attempt to schedule depositions became a pitched

battle in a seemingly endless war. This may be true but it is

hardly exonerative. Since Young himself contributed significantly

to the bellicose nature of the proceedings, he scarcely can be

heard to advance fractiousness as a reason for disregarding the

judge's directives. Cf. Hosea 8:7 (warning that those who "have

sown the wind . . . shall reap the whirlwind").

Young's last two arguments are interrelated. First, he

protests that he ultimately did comply with the court's order when

he began to give his deposition on June 26 (nine days after the

expiration of the court-imposed deadline for his appearance). This

-11-
importuning misses the mark. Young's violation of a time-specific

order was not cured by subsequent compliance at his leisure. See

Serra-Lugo v. Mayaguez Consortium-Las Marias, 271 F.3d 5, 6 (1st

Cir. 2001) (per curiam) (affirming dismissal notwithstanding

appellant's belated compliance with the court's order in "a

somewhat relaxed manner"). At the very least, such violations

undermine the court's efforts to manage its docket efficiently and

effectively. See Tower Ventures, 296 F.3d at 46 (explaining the

centrality of scheduling orders in the case-management process and

noting that "a party's disregard of such orders robs them of their

utility"); Rosario-Diaz, 140 F.3d at 315 (discussing a party's

"unflagging duty to comply with clearly communicated case-

management orders").

Relatedly, Young makes a "no harm, no foul" argument:

because the parties began to take the deposition before they knew

of the dismissal, he posits, the sanction was unnecessary. But

this narrow assessment overlooks that the court has an

institutional interest in ensuring compliance with its orders.

Given that interest, a court is not obliged to tolerate a party's

disdain for court-imposed deadlines. As we wrote two decades ago,

"[i]f such conduct were condoned by a slap on the wrist . . . the

district court . . . might well find the lawyers calling the tune

on discovery schedules." Damiani v. R.I. Hosp., 704 F.2d 12, 16

(1st Cir. 1983) (footnote omitted).

-12-
 Then, too, there is another integer in this equation.

Sanctions often are intended to do more than calibrate the scales

between a particular plaintiff and a particular defendant. One

principal purpose is to deter others from similar misconduct. See

Nat'l Hockey League v. Metro. Hockey Club, 427 U.S. 639, 643

(1976); Barreto v. Citibank, N.A., 907 F.2d 15, 16 (1st Cir. 1990).

When a party flouts a time-specific order, that purpose is

frustrated unless the court sends a strong signal. Imposing a

meaningful sanction delivers just such a message.

We need go no further. In view of the history, travel,

and circumstances of the case, there is no principled way that we

can upbraid the district court for following through on its

explicit warning to dismiss the action if Young did not adhere to

the deposition order. And because the court acted well within its

discretion in dismissing the case, it necessarily follows that it

did not err in refusing reconsideration. See Batiz Chamorro, 304

F.3d at 7.

Affirmed.

-13-