UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
No. 95-1981
CHUANG INVESTMENTS,
Plaintiff and Defendant-in-Counterclaim-Appellant,
v.
EAGLE INNS, INC.,
d/b/a WORCESTER HOWARD INN HOTEL
AND COLLEGE SQUARE APARTMENTS,
Defendant, and
MARRIOTT FAMILY RESTAURANTS, INC.,
Defendant and Plaintiff-in-Counterclaim-Appellee,
v.
Y.C. HOSPITALITY, INC., and
YING C. CHUANG,
Defendants-in-Counterclaim-Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Boudin, Circuit Judge,
Bownes, Senior Circuit Judge,
and Lynch, Circuit Judge.
Robert D. Cohan with whom James D. Gotz and Cohan & Rasnick were
on briefs for appellants.
John O. Mirick with whom Mirick, O'Connell, De Mallie & Lougee
was on brief for appellee.
April 9, 1996
Per Curiam. In March 1993, Chuang Investments, Inc.
filed suit in state court against Marriott Family
Restaurants, Inc., alleging that Marriott had violated a
lease agreement. Marriott removed the case to the district
court and counterclaimed against Chuang Investments, Inc.,
Y.C. Hospitality, Inc., and Dr. Ying C. Chuang. It appears
that Dr. Chuang controls Chuang Investments, Inc. and that
Y.C. Hospitality, Inc. is now dissolved. Dr. Chuang then
asserted his own claim against Marriott.
In October 1993, the district court entered a discovery
order requiring that discovery be completed by July 1994.
Marriott filed deposition notices in February 1994 directed
to Dr. Chuang and the Chuang companies, which Dr. Chuang
ignored. In April 1994, Marriott filed interrogatories and
document requests, which also went unanswered, and a motion
to compel discovery based on the deposition notices.
Dr. Chuang then wrote a letter dated April 17, 1994, to
the court saying that he had suffered a gunshot wound and, on
his doctor's advice, needed a year's postponement. The court
immediately directed Dr. Chuang to file an affidavit from his
doctor and scheduled a hearing. In the meantime, the
attorneys for Dr. Chuang and his companies moved to withdraw
because they had not been paid. Dr. Chuang did not submit
the requested affidavit.
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At the June 1994 hearing the district court told Dr.
Chuang that he would be given 14 days more to file the
affidavit from his doctor that had been requested in April
1994 and, absent the affidavit, he had 30 days to get new
counsel. The court specifically advised Dr. Chuang that he
risked default if he did not secure counsel, since the
corporations had to be represented by counsel and Dr. Chuang
did not propose to represent himself.
Thereafter, in June 1994, Dr. Chuang filed letters--not
affidavits--from two doctors saying, respectively, that he
needed a month's postponement and six months' postponement.
He did not obtain new counsel. In July 1994, Marriott moved
to dismiss the claims against it and for defaults as to
liability on its claims against Dr. Chuang and his companies.
The grounds stated were the repeated failures of the Chuang
parties to respond to discovery requests. Dr. Chuang and his
companies opposed the motions; but for the next eight months
they took no other action on the case.
Finally, on May 12, 1995, the district court filed an
eight-page memorandum and order describing the sequence of
events and granting Marriott's motion. Thereafter, the
Chuang parties, now with new counsel, sought reconsideration
which was denied. A hearing was held, damages were fixed on
the Marriott claims, and judgment was entered disposing of
the case. The Chuang parties now appeal, raising as their
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sole issue whether the district court abused its discretion
in granting Marriott's motion.
On appeal, the Chuang parties argue that Dr. Chuang's
gunshot wound--apparently a knee injury that was the subject
of surgery in January 1994--prevented him from attending his
deposition. They say that his delay in securing affidavits
and new counsel and in responding to discovery was the result
of mental and physical trauma, and some difficulty in
speaking English. We are also told that the delays were not
egregious and that Marriott was not prejudiced by the delay.
We think it is clear that Dr. Chuang has not excused his
failure to comply with the court orders or his discovery
obligations (the Chuang brief does not seek to distinguish
between his position and that of the two Chuang
corporations). It may be that he had a medical excuse for
not attending the depositions, cf. United States v. DeFrantz,
708 F.2d 310, 312 (7th Cir. 1983); but nothing in the later
letters from the doctors--or two medical affidavits belatedly
submitted on reconsideration--even begins to explain why he
did nothing for almost 18 months.
Nor is there anything to the claim of lack of prejudice.
There may be no showing of special prejudice (e.g., a lost
witness); but, in a period of overloaded dockets, prejudice
to the court is inherent in needless delays and
postponements. As for Marriott, it has been left with
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litigation needlessly hanging over its head and has been
forced to litigate about discovery compliance that should
have been automatic or only briefly delayed. See Robson v.
Hallenbeck, No. 95-1595, slip op. at 8-9 (1st Cir. Apr. 3,
1996).
It is true that default is a severe sanction but the
facts already cited reveal a pattern of non-compliance and
inattention by Dr. Chuang. See Damiani v. Rhode Island
Hosp., 704 F.2d 12, 15-16 (1st Cir. 1983). For months, Dr.
Chuang failed to comply with the twice-issued direction that
he provide an affidavit, and he failed either to secure
counsel as directed or, if additional time was needed, to
request and justify a postponement. Nor did Dr. Chuang make
a serious effort to comply with the discovery demands
outstanding against him for almost 18 months prior to
default.
The district court showed considerable patience in this
case. It provided a warning and a second chance, and it then
waited for a substantial period. In ordering the dismissal
and default, the court wrote a careful explanation of what
had happened and why the court was entering its order. We
think that the remedy was well within the discretion of the
district court, Damiani, 704 F.2d at 13, and that nothing in
the submissions filed on reconsideration required it to alter
its position.
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Affirmed.
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