Vallejo v. Santini-Padilla

United States Court of Appeals
For the First Circuit

No. 08-2586

ROBERT VALLEJO, ET AL.,

Plaintiffs, Appellants,

v.

MAYOR JORGE SANTINI-PADILLA, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. José A. Fusté, U.S. District Judge]

Before

Lynch, Chief Judge,
Torruella and Boudin, Circuit Judges.

Linda George, Law Office of Linda George, Mauricio Hernandez
Arroyo, and Emilio E. Sole de la Paz on brief for appellants.
Irene S. Soroeta-Kodesh, Solicitor General, Leticia Casalduc-
Rabell, Deputy Solicitor General, Zaira Z. Girón-Anadón, Deputy
Solicitor General, and Michelle Camacho-Nieves, Assistant Solicitor
General, on brief for appellees José Bejaran, FNU Olmedo, and FNU
Acevedo.
Frank Gotay-Barquet and Gotay & Pérez, P.S.C. on brief for
appellee Anthony Ayala.
Michael C. McCall and Aldarondo & López Bras on brief for
appellees Elieser Rosario-Gerena and Juan Carlos Cruz-Pérez.
Ernesto Rovira-Gándara and Mercado & Soto on brief for
appellees Mayor Jorge Santini-Padilla, the City of San Juan, Puerto
Rico, Col. Adalberto Mercado-Cuevas, and Sgt. Wanda Gómez.
Luz Vanessa Ruiz-Torres and Rosario-Rosario Law Offices on
brief for appellee City of San Juan.
Jorge R. Quintana-Lajara and Quintana & Suárez, P.S.C. on
brief for appellee Héctor Santana.
Antonio Montalvo-Nazario on brief for appellee Capt. Adán
Adorno.
Rosabel Meléndez-Rodríguez and Toledo & Toledo Law Office on
brief for appellee Luz Z. Rojas-Delgado.

May 28, 2010
 LYNCH, Chief Judge. Plaintiffs Robert Vallejo, Moillis

L. Batista-Cuevas, and Daniel Fructuoso sued the City of San Juan,

Puerto Rico, its mayor, and others in December 2006, alleging

police brutality in violation of 42 U.S.C. §§ 1983 and 1985 and

Puerto Rico law. Plaintiffs appeal from the district court's

dismissal of their federal and commonwealth-law claims, with

prejudice, as a sanction for their persistent violations of

scheduling orders and other discovery misconduct. See Vallejo v.

Santini-Padilla, Civ. No. 06-2235 (D.P.R. Aug. 5, 2008).

Plaintiffs' appeal concedes to us their many violations

but urges that the sanction of dismissal was unduly harsh and that

the court should have given plaintiffs more explicit warning before

imposing it. Neither of plaintiffs' arguments was timely presented

to the district court and so they are waived. Were we to look

beyond that waiver, on these facts, the district court did not

abuse its discretion, and we affirm.

I.

In light of this case's posture on appeal, we need not

address the substance of the parties' underlying dispute. We turn

to the somewhat tangled procedural history, which prompted the

district court's dismissal of plaintiffs' claims. We also briefly

outline various motions filed post-dismissal, which include

plaintiffs' sole, untimely opposition to the sanction before the

district court.

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A. Pre-Dismissal Procedural History

This case was litigated for roughly twenty months before

the district court dismissed it. That pre-dismissal period was

marked by the district court's repeated efforts to accommodate

plaintiffs by granting them a series of discovery extensions and

the plaintiffs' repeated violations of the resulting scheduling and

discovery orders.

Plaintiffs filed their complaint on December 8, 2006. On

March 28, 2007, the district court issued a scheduling order, which

set a variety of deadlines for discovery, including an April 9,

2007, deadline for the filing of initial disclosures, pursuant to

Fed. R. Civ. P. 26. The order explicitly warned both parties, with

emphasis, that the court would not allow deviations from this

schedule.

Plaintiffs did not meet the April 9, 2007, deadline for

their initial disclosures. They instead served them on April 11,

2007. On April 26, 2007, defendants moved to dismiss the

complaint, citing plaintiffs' failure to comply with the scheduling

order. Defendants reported that plaintiffs' initial disclosures

were not only late but, significantly, were also incomplete, as

they omitted numerous documents. Defendants pointed out that

plaintiffs' disclosure explained only that the missing materials

were "to be supplied"--and did not include anything to support

plaintiffs' damages calculation, in violation of Fed. R. Civ. P.

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26(a)(1)(A)(iii). The district court denied defendants' motion on

May 16, 2007, and ordered the parties to collaborate on a mutually

agreeable amended discovery schedule.

The parties jointly filed a revised discovery schedule on

May 23, 2007. Under the proposed schedule, both sides agreed,

inter alia, that June 23, 2007, would be the deadline for

plaintiffs' expert disclosures and expert witness reports. The

court approved the new schedule on June 18, 2007.

Despite the court's accommodation, plaintiffs again

failed to comply with the revised scheduling order to which they

had agreed. As of July 19, 2007, almost one month after the

amended deadline, plaintiffs still had not made their mandatory

expert disclosures. On that date, defendants filed a second motion

to dismiss plaintiffs' claims as a sanction for noncompliance, this

time seeking dismissal with prejudice or, in the alternative, the

exclusion of plaintiffs' expert witnesses.

Plaintiffs filed a response on July 27, 2007, in which

they claimed, for the first time, that the discovery schedule to

which they had previously agreed "was overly ambitious and out of

sequence." In particular, plaintiffs asserted that their expert

witnesses would be unable to prepare reports until the conclusion

of discovery and asked that the court grant them an extension on

their expert reports until "30 days after the conclusion of the

deposition of fact witnesses."

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 On August 16, 2007, the court ordered plaintiffs to meet

their discovery obligations under the previous scheduling orders

and the Federal Rules of Civil Procedure by August 24, 2007. The

court warned plaintiffs that failure to comply fully with its order

would result in the exclusion of their experts' testimony from

trial.

The court's warning notwithstanding, the August 24

deadline passed without plaintiffs completing their required

disclosures. On August 28, defendants filed a third motion to

dismiss plaintiffs' complaint with prejudice or, in the

alternative, to exclude plaintiffs' expert witnesses. In response,

plaintiffs again sought an amendment to the dates in the discovery

order.

On September 24, 2007, the district court further

accommodated plaintiffs by granting their request to revise the

scheduling order. The amended order required plaintiffs to produce

expert reports by May 30, 2008, thirty days after depositions were

to be completed.

Discovery proceeded over the next several months, albeit

not always as planned. During a February 13, 2008, conference

call, the court ordered all parties to provide to all other parties

a transcript of any depositions they conducted; the order was

apparently triggered by plaintiffs' taking the position that they

were not required to do so. Additionally, although plaintiffs had

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originally scheduled approximately fifty depositions between

December 12, 2007, and March 25, 2008, they ultimately deposed a

total of two witnesses during that period. In April 2008,

plaintiffs also failed to produce a fact witness for his scheduled

deposition by defendants, in violation of an explicit court

order;the district court had ordered plaintiffs to produce the

witness after he failed to appear for a previously scheduled

deposition in November 2007. In response, the district court

barred the witness from testifying for plaintiffs.

On May 13, 2008, almost two weeks after the most recent

amended deadline for the completion of depositions, plaintiffs

filed a motion to further extend discovery, citing the death of one

of their opponent's attorney's husband in March of that year as the

cause of delays.1 Defendants' responsive motion argued that

plaintiffs' delay was not caused by defense counsel but was "of

their own fault." Defendants noted in part that "[t]he personal

situation of counsel for one of the Defendants on one particular

date does not constitute a sufficient reason for Plaintiffs'

inability to conclude discovery in a timely fashion over the past

seventeen and a half months." The district court denied

plaintiffs' motion to further revise the scheduling order on May

1
The affected defense attorney disputes plaintiffs'
characterization of the delay. Record evidence shows that she
returned to work about two weeks after her husband died and neither
requested nor received any alterations in the discovery schedule
while coping with her loss.

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23, 2008, and denied plaintiffs' motion for reconsideration of the

denial on June 30, 2008.

In the meantime, plaintiffs failed to file their expert

disclosures by May 30, 2008, as required by the amended scheduling

order.

On July 7, 2008, defendants filed another motion to

dismiss plaintiffs' claims with prejudice. Defendants noted the

court's earlier multiple amendments of the discovery schedule to

accommodate plaintiffs and urged that the latest missed deadline

was "part of a consistent pattern by Plaintiffs . . . of blatantly

ignoring the Court's orders and then belatedly requesting that such

deadline[s] be extended after already having expired." In an

informative motion filed that same day, defendants also notified

the court that plaintiffs had failed to supply copies of deposition

transcripts to all parties, as mandated by the court's February 13

order. Two days later, defendants filed a supplemental motion,

reporting that those deposition transcripts that plaintiffs had

provided were missing key pages, as well as exhibits totaling

several hundred more pages. Defendants asked the court to order

production of the missing documents.

Plaintiffs did not respond to any of these motions. They

filed no opposition to the defendants' request that the case be

dismissed with prejudice.

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 On August 5, 2008, the district court granted defendants'

July 2008 motion to dismiss. Vallejo, slip op. at 6. The court

noted that plaintiffs had "repeatedly disobeyed [its] scheduling

orders, beginning with their violation of the initial disclosure

deadline and including their continued failure to make the required

expert witness reports available, in contravention of both [the]

original scheduling order and the new scheduling order explicitly

agreed upon by the parties themselves." Id. at 4. It also cited

plaintiffs' failure to provide all defendants with complete

deposition transcripts, despite the court's explicit order that

they do so. Id. The court described defendants' repeated efforts

to notify plaintiffs of various deficiencies in their discovery

materials, as well as the court's grant of "several extensions of

time to cure these defects and . . . warn[ing to] Plaintiffs that

there would be consequences if they failed to do so." Id. at 4-5.

Finally, the district court emphasized plaintiffs'

failure to explain their misconduct, noting that since defendants'

July 7, 2008, motion to dismiss, plaintiffs "had ample time to

offer some justification for their malfeasance, but . . . chose to

make no response." Id. at 5. As a result, the court found that

plaintiffs' failure to timely make expert disclosures was not

"substantially justified." Id. It also held that plaintiffs'

conduct during discovery had inherently prejudiced defendants'

ability to prepare for trial, while "drain[ing] resources of the

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parties as well as th[e] court." Id. (citing Ortiz-Lopez v.

Sociedad Espanol de Auxilio Mutuo y Benefiencia de P.R., 248 F.3d

29, 35 (1st Cir. 2001)).

For all these reasons, the district court found dismissal

warranted under both Fed. R. Civ. P. 37(b)(2)(A) and Fed. R. Civ.

P. 37(c) and granted defendants' motion to dismiss plaintiffs'

federal claims with prejudice. Id. at 5-6. It dismissed

plaintiffs' remaining claims under Puerto Rico law without

prejudice. Id. at 6.

B. Post-Dismissal Procedural History

We briefly outline the flurry of motions that followed

the district court's dismissal. This was the only point at which

plaintiffs made their present arguments before the district court.

The parties' post-dismissal filings are also the basis for

defendants' erroneous challenge to our jurisdiction.

On August 21, 2008, plaintiffs filed a motion for

reconsideration under Fed. R. Civ. P. 59(e), asking the court to

reassess its dismissal of their claims. Defendants timely opposed

plaintiffs' motion on September 12, 2008. At no point did

plaintiffs file a motion to reply to defendants' opposition, as

required by the Puerto Rico District Court's Local Rule 7(c).

Meanwhile, defendants filed their own motion for

reconsideration on August 23, 2008, asking the district court to

modify its holding to dismiss plaintiffs' commonwealth-law claims

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with prejudice. Plaintiffs sought and were granted an extension of

time, until October 1, 2008, to oppose defendants' motion.

On October 1, 2008, plaintiffs' filed a so-called

"Combined Response to Defendants' Filings Regarding Plaintiffs'

Motion for Reconsideration." Although styled as a reply to

defendants' motion for reconsideration, the six-page response

restated arguments raised in plaintiffs' own motion for

reconsideration and made only glancing mention of defendants'

pending request to dismiss their commonwealth-law claims.

On October 6, 2008, defendants filed a motion to strike

plaintiffs' "Combined Response," urging that it amounted to further

briefing on plaintiffs' motion for reconsideration, for which

plaintiffs had neither requested nor obtained leave. Defendants

sought an order: (1) striking plaintiffs' combined response for

noncompliance with Local Rule 7(c); (2) denying plaintiffs' motion

for reconsideration; and (3) granting defendants' motion for

reconsideration, which plaintiffs had not properly opposed.

The district court granted defendants' motion to strike

"in all respects" on October 20, 2008. That same day, it entered

a separate order denying plaintiffs' motion for reconsideration.

Four days later, defendants filed a motion for

clarification of the court's order. The motion noted a discrepancy

in the docket number referenced in the order granting a motion to

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strike2 and asserted that the order was "not clear as to the relief

granted therein."

On October 28, 2008, the district court granted the

motion for clarification, explaining that its order "was intended

to and did grant [defendants'] motion for reconsideration" and

directed the entry of an amended judgment dismissing plaintiffs'

commonwealth-law claims with prejudice. The amended judgment was

entered on October 29, 2008.

Plaintiffs filed notice of this appeal on November 28,

2008.

II.

Plaintiffs urge that the district court chose an

unnecessarily severe sanction and that they should have been given

additional notice before the case was dismissed.3 Plaintiffs did

2
The district court's October 20 order referred to
defendants' motion to strike as docket number 244; defendants'
motion to strike was docket number 242.
3
Defendants make two meritless challenges to our
jurisdiction over this appeal. First, defendants assert that
plaintiffs' notice of appeal was untimely under Fed. R. App. P.
4(a). This argument ignores the fact that notice was filed within
thirty days of the court's amended judgment, which, as defendants
conceded in their motion to clarify, was necessary to resolve a
genuine ambiguity. Such a judgment "winds the appeals clock anew."
Air Line Pilots Ass'n v. Precision Valley Aviation, Inc., 26 F.3d
220, 223 n.2 (1st Cir. 1994) (citing FTC v. Minneapolis-Honeywell
Co., 344 U.S. 206, 211-12 (1952)).
Defendants next urge that the notice of appeal provided
insufficient notice under Fed. R. App. P. 3(c)(1). We construe the
requirements of Rule 3 liberally, "analyzing the notice of appeal
in the context of the entire record." Constructora Andrade
Gutiérrez, S.A. v. Am. Int'l Ins. Co. of P.R., 467 F.3d 38, 44 (1st

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not properly raise their arguments below, and they are waived.

Even if plaintiffs had preserved their claims, on these facts, the

district court did not abuse its discretion.

We begin with the waiver. Plaintiffs chose not to oppose

defendants' July 2008 motion to dismiss or otherwise timely raise

their arguments before the district court. Plaintiffs now assert

that they opted not to oppose defendants' motion "because they were

in the difficult position of conceding that their expert's . . .

testimony would be barred." The argument is utterly without merit.

By their own admission, plaintiffs made a deliberate decision not

to raise their present claims at the appropriate time;4 their

Cir. 2006) (internal quotation marks omitted). Here, although the
caption of plaintiffs' notice includes only Robert Vallejo, its
text clearly refers to "Robert Vallejo and other plaintiffs." As
the plaintiffs on appeal are the same three plaintiffs who have
litigated this case from the outset, this filing provided
defendants sufficient notice of their opponents on appeal. See
Young v. Gordon, 330 F.3d 76, 80 (1st Cir. 2003); cf. Santos-
Martinez v. Soto-Santiago, 863 F.2d 174, 175 (1st Cir. 1988)
(finding a notice of appeal that "purported to be filed for 'all
plaintiffs'" inadequate when several of the original plaintiffs
were not parties to the appeal).
4
To the extent that plaintiffs raised their present claims
before the district court, it was solely and improperly in their
motion for reconsideration of the sanction order. "[A]rguments
that could have been raised before may not be raised for the first
time in a motion for reconsideration." Marks 3 Zet-Ernst Marks
GmBh & Co. KG v. Presstek, Inc., 455 F.3d 7, 16 (1st Cir. 2006); 11
Charles A. Wright, et al., Federal Practice & Procedure § 2810.1,
at 127-28 (2d ed. 1995). Plaintiffs have not cited a single
authority in support of their assertion that their failure to
timely oppose the motion to dismiss did not constitute waiver, and
their claim that the argument could not have been raised until
after the sanction had been imposed is completely meritless.

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choice mandates waiver of those claims on appeal. See Dunellen,

LLC v. Getty Props. Corp., 567 F.3d 35, 38 (1st Cir. 2009);

Sullivan v. Nat'l Football League, 34 F.3d 1091, 1097 n.1 (1st Cir.

1994).

Plaintiffs' claims that the district court abused its

discretion are, in any event, meritless. On these facts, the

district court's sanction was not an abuse of its discretion.

District courts' authority to dismiss an action as a sanction for

noncompliance with a discovery order is well established. E.g.,

Benitez-Garcia v. Gonzalez-Vega, 468 F.3d 1, 4 (1st Cir. 2006); see

also Fed. R. Civ. P. 37(b)(2)(A)(v). Although dismissal of a case

may at times be a harsh sanction, we have routinely recognized that

it is an essential tool for district courts' effective exercise of

their "right to establish orderly processes and manage their own

affairs." Young v. Gordon, 330 F.3d 76, 81 (1st Cir. 2003).

"Mindful that case management is a fact-specific matter within the

ken of the district court," we will reverse "only for a clear abuse

of discretion." Robson v. Hallenbeck, 81 F.3d 1, 2-3 (1st Cir.

1996); see also Benitez-Garcia, 468 F.3d at 4 (citing Nat'l Hockey

League v. Metro. Hockey Club, Inc., 427 U.S. 639, 642 (1976) (per

curiam)). "This standard of review is not appellant-friendly--and

a sanctioned litigant bears a weighty burden in attempting to show

that an abuse occurred." Young, 330 F.3d at 81; see also id.

("[A]ppellate panels traditionally give district courts

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considerable leeway in the exercise of the latter's admitted

authority to punish noncompliant litigants."); Damiani v. R.I.

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

Given the array of litigation misconduct faced by

district courts, our review of a court's choice of a particular

sanction must necessarily "be handled on a case-by-case basis."

Tower Ventures, Inc. v. City of Westfield, 296 F.3d 43, 46 (1st

Cir. 2002). Where, as here, a district court has opted for the

severe sanction of dismissal with prejudice, our inquiry is both

substantive and procedural. E.g., Malloy v. WM Specialty Mortgage,

512 F.3d 23, 26 (1st Cir. 2008) (per curiam).

Although our fact-specific review necessarily "def[ies]

mechanical rules," relevant substantive factors include "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."

Robson, 81 F.3d at 2. Pertinent procedural considerations include

"whether the offending party was given sufficient notice and

opportunity to explain its noncompliance or argue for a lesser

penalty." Malloy, 512 F.3d at 26.

We turn first to the substantive factors. Plaintiffs

concede that they repeatedly missed court-mandated deadlines and

that the court "exhibit[ed] patience and understanding by . . .

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extending the discovery deadline[s]." They urge, however, that the

court failed to properly consider mitigating factors for their

allegedly minor misconduct and imposed a harsher-than-necessary

sanction.

Plaintiffs' effort to minimize their misconduct

understates the significance of their repeated violations of

scheduling orders. Although courts should not be too quick to

resort to dismissal, e.g., Benitez-Garcia, 468 F.3d at 5,

"disobedience of court orders, in and of itself, constitutes

extreme misconduct (and, thus, warrants dismissal)," Tower

Ventures, 296 F.3d at 46; see also Rosario-Diaz v. Gonzalez, 140

F.3d 312, 315 (1st Cir. 1998). To the extent that plaintiffs

challenge the district court's finding of prejudice, "[r]epeated

disobedience of a scheduling order is inherently prejudicial,

because disruption of the court's schedule and the preparation of

other parties nearly always results." Robson, 81 F.3d at 4. The

effects of repeated delinquency may be particularly acute in cases,

like this one, that involve many parties. Moreover, in this case,

plaintiffs' "failure to achieve the time line that [they] had

recommended weighs heavily against [them]." Young, 330 F.3d at 82;

see also Tower Ventures, 296 F.3d at 47 ("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.").

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 Nor did the district court abuse its discretion by

rejecting plaintiffs' excuses for their persistent violations of

scheduling and other discovery-related orders. Plaintiffs'

purported explanations for their repeated misconduct lack merit or

credibility. Plaintiffs rely heavily on the allegedly

"extraordinarily daunting" obstacle posed by the death of the

husband of one of their opponent's attorneys. Their argument is

contradicted by evidence that the affected attorney returned to her

office about two weeks after her husband's death and "neither

requested nor agreed to a sine die continuance of the

depositions/proceedings in the case."5

Further, to the extent that plaintiffs suggest a finding

of bad faith is a prerequisite for imposing a sanction of

dismissal, that claim is flatly contradicted by our caselaw. E.g.,

Young, 330 F.3d at 82. Given plaintiffs' pattern of misconduct in

this case, the court did not abuse its discretion by dismissing

their claim without expressly holding they had acted in bad faith.

Plaintiffs' claim that their attorneys were responsible

for the discovery violations and they did not "personally

contribute[] to any delays" is similarly unavailing. "Visiting the

sins of the attorney . . . on the client is of course inherent in

5
Plaintiffs' assertion that defendants' allegedly superior
resources somehow justified plaintiffs' persistent noncompliance
with court orders also fails. The claim ignores the court's
repeated efforts to accommodate plaintiffs' needs, which were met
with continued violations.

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the nature of the adversary system." Figueroa Ruiz v. Alegria, 896

F.2d 645, 650 n.5 (1st Cir. 1990) (alteration in original)

(internal quotation marks omitted); see also Link v. Wabash R. Co.,

370 U.S. 626, 633-34 (1962).

Plaintiffs also perfunctorily argue that the district

court abused its discretion by failing to consider lesser

sanctions. Recognizing that "reviewing courts, properly employing

the benefit of hindsight, [may be] heavily influenced by the

severity of outright dismissal as a sanction for failure to comply

with a discovery order," Nat'l Hockey League, 427 U.S. at 642, we

show considerable deference "to the district court's on-the-scene

judgment" when selecting the appropriate sanction, Malloy, 512 F.3d

at 27.

Here, plaintiffs' repeated violations occurred despite

the court's generous accommodations of their scheduling concerns.

Plaintiffs also failed to improve their conduct after the court

earlier imposed a lesser sanction of barring testimony from the

witness whom plaintiffs had failed to produce for his scheduled

deposition. And while "the district court did not expressly

consider lesser alternatives" when granting defendants' final

motion to dismiss, "none was suggested by the plaintiffs." Malloy,

512 F.3d at 27; see also Tower Ventures, 296 F.3d at 46; Damiani,

704 F.2d at 15 (noting that nothing in the Federal Rules of Civil

Procedure "states or suggests that the sanction of dismissal can be

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used only after all the other sanctions have been considered or

tried").

Plaintiffs' procedural argument is also without merit.

Plaintiffs urge that the district court failed to explicitly warn

them that their claim might be dismissed. Although notice is not

required before imposing dismissal as a sanction, "counsel's

disregard of a prior warning from the court exacerbates the

offense, and the lack of warning sometimes mitigates it." Robson,

81 F.3d at 3. Here, the district court warned all parties at the

outset of discovery that noncompliance with the scheduling order

would not be tolerated and subsequently warned plaintiffs in August

2007 that they would be sanctioned for failure to meet deadlines.

Plaintiffs' claim of detrimental reliance on the latter

warning lacks merit. That warning was given almost one year before

the court dismissed the case. During the intervening months,

plaintiffs (1) violated two more scheduling orders (despite the

court further adjusting the calendar to accommodate them), (2)

violated a court order to produce a witness for deposition, (3)

violated a court order to provide complete copies of deposition

transcripts to all parties, and (4) had completed only a fraction

of their proposed discovery.

Plaintiffs were also put on notice of the risk of

dismissal by defendants' filing of their final motion to dismiss.

"Defendants' motion for sanctions expressly sought dismissal with

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prejudice, yet plaintiffs filed no opposition to the motion in

general or to that sanction in particular." Malloy, 512 F.3d at

28. This motion, which the district court waited one month before

granting, afforded plaintiffs "notice of the prospect of dismissal

and opportunity to offer excuses for their delay or to advocate for

lesser sanctions." Id. The district court's ruling expressly

relied on the fact that plaintiffs had been given the chance to

explain their behavior or otherwise oppose the motion and had "made

no attempt to explain themselves." Vallejo, slip op. at 5.6

III.

For the reasons discussed above, we affirm the district

court's judgment.

6
Plaintiffs' reliance on Malot v. Dorado Beach Cottages
Associates, 478 F.3d 40 (1st Cir. 2007), in this regard is
misplaced. In Malot, our determination that the district court
abused its discretion rested in significant part on our finding
that the various substantive factors militated against dismissal,
id. at 43-45. Moreover, in Malot, there was no indication that
plaintiffs had failed to avail themselves of the opportunity to
contest dismissal by opposing defendants' motion to dismiss. Id.
at 43.

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