United States Court of Appeals
For the First Circuit
No. 00-1278
JOSE ANTONIO ORTIZ-LOPEZ, ET AL.,
Plaintiffs, Appellants,
v.
SOCIEDAD ESPAÑOLA DE AUXILIO MUTUO Y
BENEFICIENCIA DE PUERTO RICO, ETC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Torruella, Chief Judge,
Campbell, Senior Circuit Judge,
and Selya, Circuit Judge.
John Ward-Llambías with whom Ricardo Ruiz-Diaz and Ward &
Ward were on brief for appellants.
Jeannette M. López-de-Victoria for appellee.
May 3, 2001
CAMPBELL, Senior Circuit Judge. Plaintiffs sued
Sociedad Española de Auxilio Mutuo Y Beneficencia de Puerto Rico
(hereinafter the “hospital”) in the district court under, inter
alia, the Emergency Medical Treatment and Active Labor Act
(EMTALA), the “anti-dumping statute.”1 EMTALA requires the
hospital to “appropriately screen” and “stabilize” the patient
before transferring her to another facility. See 42 U.S.C.A. §
1395dd(a) and (b). Plaintiffs are the family of deceased Rosa
Rivera, who died after succumbing to an allegedly self-inflicted
overdose of painkillers after arriving at the emergency room of
the hospital. Plaintiffs allege in their complaint that the way
Rivera was treated by defendant’s staff fell short of EMTALA’s
requirements.
Plaintiffs, however, never reached trial on their
EMTALA claim. On the day scheduled for trial, the court found
that plaintiffs had committed serious discovery abuses by
withholding information they were required to furnish, including
1
Initially, in addition to the EMTALA claim, plaintiffs
alleged malpractice claims against fictitious co-defendants
under the district court’s supplemental jurisdiction. Those
claims and defendants were voluntarily dismissed from the action
on June 7, 1999.
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information relative to their proposed expert witness. As a
sanction, the court ruled that plaintiffs’ expert witness would
not be allowed to testify. Thereafter, it granted defendant’s
motion to dismiss2, concluding that plaintiffs could not prove
their EMTALA claim without the excluded evidence. This appeal
followed.
In the course of the year preceding the scheduled
trial, the defendant filed three motions to compel under Rule
37(a) and (b).3 The district court acted on these motions
immediately prior to the time the jury trial was scheduled to
begin, January 24, 2000. Defendant’s allegations in those
motions to compel were two-fold.
First, defendant alleged (and the district court later
found) that for nearly three years plaintiffs had failed to
fully and truthfully answer interrogatories concerning the
deceased’s medical history as repeatedly requested by the
defendant and as required by the Federal Rules of Civil
Procedure, see Fed. R. Civ. P. 26(e) (subsection of rule
2 Defendant’s motion, filed December 13, 1999, was entitled
“Motion To Dismiss For Lack Of Subject Matter Jurisdiction
and/or For Failure To State A Claim For Which Relief Can Be
Granted.” For purposes of brevity here, we entitle it simply
Motion to Dismiss.
3 The three motions to compel were filed on June 16, 1999,
July 29, 1999 and January 18, 2000. The action itself was filed
on November 8, 1996 and discovery began on May 16, 1997.
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requiring the supplementation of automatic discovery, such as
interrogatory answers, when the disclosing party learns “that in
some material respect the information disclosed is incomplete or
incorrect”). When asked at which hospitals and when and by whom
the deceased had been treated in the past, plaintiffs answered
by naming only three hospitals but without providing any further
information. They claimed not to have any more specific
information. When defendant again requested information about
Rosa Rivera’s prior medical treatment, asking specifically for
medical documents and information, such as names of treating
physicians and the dates of such treatment (to which plaintiffs
had exclusive access), the plaintiffs did not respond.4 As it
turns out, the deceased had been hospitalized for five months in
1991 (for what seems to have been a combination of mental health
problems and cervical cancer) and was afterwards in and out of
hospitals for cancer treatment. Not until the day of trial,
during settlement negotiations, did the defendant learn of this
4 Although defendant managed to get permission from
plaintiffs to request hospital records of the deceased through
court order, a required procedure under Puerto Rico law, see
Puerto Rico Law 101 of July 1965, §3-202, the very general
information plaintiffs provided defendant in order to fulfill
those requests was inadequate. The hospitals to whom defendant
submitted the requests for information about Rosa Rivera were
unable to find many relevant records based on the information
provided.
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from the plaintiffs, although defendant had requested
information of this type all along.
During the hearing on the motions to compel, the
district court determined that plaintiffs’ withholding of this
information was in bad faith. “They [the plaintiffs] know when
their sister, . . . his wife was hospitalized and they have kept
you [their counsel] in the dark as to all of this because
certainly five months hospitalization, it certainly is of such
magnitude that a husband or a sister or mother would know and
would have told you . . . [in the course of] answering
interrogatories . . . . I am not implying that you [plaintiffs’
counsel] are at fault. It is your client. They have tried to
keep defendants in the dark as to your client’s
problems . . . .”
While the court found purposeful evasion in failing to
reveal Rosa Rivera’s medical history, supra, this was not the
finding that led directly to the dismissal of plaintiffs’ case.
Defendant’s second allegation contained in their last two
motions to compel was the basis for the exclusionary ruling that
ultimately ended the case. Defendant complained that plaintiffs
had failed to comply with the automatic expert disclosure
requirements of Rule 26(a)(2)(B), to wit, providing the names of
court cases in which their designated expert had previously
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testified. Defendant successfully argued that this omission
should cost plaintiffs the use of their expert without whom they
would be unable to make out a case.
Plaintiffs’ response to this allegation, in writing and
at argument before the district court, was that it had been
impossible to produce the required information because their
expert did not “keep his records” that way (allegedly the
plaintiffs’ expert did not keep a list of all the cases in which
he testified and only remembered the attorneys’ names).
Plaintiffs further responded that they had fulfilled Rule
26(a)(2)’s requirement by providing to the defendant the names
of some of the attorneys with whom the expert had previously
worked.
After hearing arguments on all outstanding motions to
compel and, after recessing for a time in which the parties
could negotiate further and the court could conduct some
independent research into the motions pending, the court
thereupon granted defendant’s motion to exclude plaintiffs’
expert witness. Plaintiffs protested that they would have no
way to admit relevant documents other than through their expert
witness. The court noted that that being the case, plaintiffs
might not be able to make out their EMTALA claim. The court
informed both parties they had the afternoon and evening to
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discuss the matter and recessed until the following morning when
the jury would be brought in for opening arguments.
The next day, January 25, 2000, in an attempt to get
the court to reverse its previous ruling excluding their expert
witness, plaintiffs’ counsel produced to defendant and the court
-- contrary to their earlier arguments that such information was
unavailable -- a list of all the court cases in which their
expert witness had previously testified. Calling plaintiffs’
belated proffer both “an insult” and “a shame”, the district
court refused plaintiffs’ list and then invited both parties to
present arguments as to why the case should or should not be
dismissed for failure to state a claim or, in the alternative,
for lack of subject matter jurisdiction, the plaintiffs having
lost their chance to present evidence as to their one remaining
claim. Thereupon defendant renarrated the lengthy story of its
frustrating attempts to obtain discovery. At the conclusion of
defendant’s story, to which plaintiffs had little relevant to
add, the district court announced its dismissal of the
plaintiffs’ case with prejudice.
Plaintiffs say little in their appellate briefs and
argument by way of justifying their failure to have provided the
above-described discovery. Instead, plaintiffs contend that the
district court misapplied the law of this circuit when it
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excluded the expert evidence as a discovery sanction without
first having made a finding that plaintiffs were in violation of
a court order to compel. Plaintiffs point to Rule 37(b)(2),
which provides:
(b) Failure to Comply With Order
If a party or an officer, director, or
managing agent of a party . . . fails to
obey an order to provide or permit
discovery, including an order made under
subdivision (a) of this rule . . . the court
in which the action is pending may make such
orders in regard to the failure as are just,
and among others the following:
(A) An order that the matters regarding
which the order was made or any other
designated facts shall be taken to be
established for the purposes of the action
in accordance with the claim of the party
obtaining the order;
(B) An order refusing to allow the
disobedient party to support or oppose
designated claims or defenses, or
prohibiting that party from introducing
designated matters in evidence;
(C) An order striking out pleadings or parts
thereof, or staying further proceedings
until the order is obeyed, or 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) (emphasis added). Plaintiffs cite case
law from this circuit holding that “[Rule 37]’s language clearly
requires two things as conditions precedent to engaging the
gears of the rule’s sanction machinery: a court order must be
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in effect, and then must be violated, before the enumerated
sanctions can be imposed.” R.W. International Co. v. Welch
Foods, Inc., 937 F.2d 11, 15 (1st Cir. 1991).
Plaintiffs’ argument fails because the district court
did not act here under Rule 37(b)(2)(B), the provision at issue
in Welch Foods. Rule 37(b)(2)(B) does indeed contemplate a
threshold determination by the court that the offending party
has failed to comply with a court order issued under Rule 37(a).
But the same is not true where automatic discovery provisions of
Rule 26(a) and 26(e) are violated, triggering subsection (c) of
the same Rule 37. See Fed. R. Civ. P. 37(c). Subsection (c) of
Rule 37 provides, in relevant part, that should a court find
that
a party that without substantial
justification fails to disclose information
required by Rule 26(a) or 26(e)(1) [, that
party] shall not, unless such failure is
harmless, be permitted to use as evidence at
a trial, at a hearing, or on a motion any
witness or information not so disclosed. In
addition to or in lieu of this sanction, the
court, on motion and after affording an
opportunity to be heard, may impose other
appropriate sanctions. In addition to
requiring payment of reasonable expenses,
including attorney's fees, caused by the
failure, these sanctions may include any of
the actions authorized under subparagraphs
(A), (B), and (C) of subdivision (b)(2) of
this rule and may include informing the jury
of the failure to make the disclosure.
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Fed. R. Civ. P. 37(c)(1). Under part (c), therefore, a court
order issued under part (a) need not first be violated before
the court may impose the sanctions provided under (c). What the
district court must find under Rule 37(c) is that the offending
parties were not “substantially justified” in failing to
disclose information required by Rule 26(a) or Rule 26(e) and
that the failure to disclose was not harmless. This is a “self-
executing sanction for failure to make a disclosure required by
Rule 26(a), without need for a motion under subdivision
[37](a)(2)(A).” Fed. R. Civ. P. 37, advisory committee notes.
It is true that when defendant requested sanctions
here, it referred to Rule 37(a) and (b) rather than to Rule
37(c). However, the record of the proceedings indicates that
the court, in refusing to allow plaintiffs to call their expert,
expressly invoked Rule 37(c) and not 37(b). On the first
hearing on this issue (the first day of trial), the district
court cited to and quoted the text of Rule 37(c)(1). “This is
what I [am] going to do. I [am] going to read from the Federal
Rules of Civil Procedure, 37(c)(1) which [is] the one that
provides for the sanctions in the event that the party fails to
make the required disclosure . . . [under] Rule 26(a)[,] which
this one is (a)(2)(B) . . . .” The district court referred
explicitly to the so-called “self-executing” provision of Rule
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37(c)(1) and to the mandatory disclosure requirements for expert
witnesses. The court then made the explicit finding that
plaintiffs’ discovery abuse was not substantially justified and
was not harmless.
From what I have heard, it is not harmless.
I mean, you were requested, you were
notified since June of last year, notified
that the [expert] report was deficient, that
it did not comply with the rules. . . .
Now, there has been no explanation brought
to the court of why this expert is unable or
unwilling to provide a report which complies
with the rules. . . . The selection [or]
retention of an expert witness is within the
control of the party employing the expert.
That is[,] to the exten[t] that there is a
disadvantage created by the expert’s failure
to disclos[e , it] must be born by the party
retaining the expert witness.
We accordingly find no merit in plaintiffs’ argument
that the court could not impose sanctions as it was not
enforcing a Rule 37(a) order. The only question is whether the
sanctions it imposed were within its authority and discretion
under Rule 37(c)(1). We hold they were.
Under Rule 37(c), the district court’s latitude is
wide. See Poulin v. Greer, 18 F.3d 979, 984 (1st Cir. 1994).
For failure to make the specified discovery, the district court
is directed to preclude as evidence “any witness or information
not so disclosed,” and “[i]n addition to or in lieu of this
sanction, the court, on a motion and after affording an
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opportunity to be heard, may impose other appropriate
sanctions . . . [which] may include any of the actions
authorized under subparagraphs (A), (B), and (C) of subdivision
(b)(2) of this rule.” Fed. R. Civ. P. 37(c). These latter
provisions specifically provide for “prohibiting that party from
introducing designated matters into evidence” (subparagraph
(b)(2)(B)) and for “dismissing the action” (subparagraph
(b)(2)(C)). The range of sanctions provided in Rule 37(c), from
the most harsh (total exclusion and dismissal of the case) to
more moderate (limited exclusion and attorney’s fees), gives the
district court leeway to best match the degree of non-compliance
with the purpose of Rule 26’s mandatory disclosure requirements.
See Klonski v. Mahlab, 156 F.3d 255, 269 (1st Cir. 1998) (“[T]he
new rule [37(c)] clearly contemplates stricter adherence to
discovery requirements, and harsher sanctions for breaches of
this rule, and the required sanction in the ordinary case is
mandatory preclusion.”)
In this case, over the course of six months, defendant
repeatedly warned the plaintiffs – through correspondence and
motions to the court – that plaintiffs’ expert disclosures were
deficient. In particular, defendant asked for the list of what
plaintiffs claims were “forty or more” cases in which their
expert had previously testified. Defendant explained, and the
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district court credited the explanation, that without the
information about the cases in which plaintiffs’ expert has
previously testified, defendant was prevented from deposing him
as to his prior experience in EMTALA cases, which he claimed was
extensive and on which he was going to buttress his own opinion
in this case. Also, as plaintiffs planned exclusively to rely
on their expert to support their claim of an EMTALA violation,
the expert’s credibility and persuasiveness, supported by his
qualifications and his experience, would be directly at issue.
It was, therefore, reasonable for the district court to find
that plaintiffs’ failure to provide defendant with this
information prejudiced defendant’s case.5
Here, plaintiffs’ deficient expert report flies in the
face of the purpose of the mandatory expert disclosure
requirements delineated in Rule 26(a)(2), which Rule 37(c) is
intended to uphold and facilitate. See Fed. R. Civ. P. 26
5
As the court noted, plaintiffs’ proffer of the requested
information on the day after the trial was to begin, and after
the court had already ruled against the plaintiffs on this
issue, showed that the plaintiffs misled both the party and the
court when they said they were unable to procure the requested
information. The belated proffer also was insufficient to cure
the harm caused to the defendant as the trial had already begun;
the district court, having delayed the trial date twice already
at the plaintiffs’ request, was not going to delay it any
further; and therefore, the defendant was short of time, due to
no fault of its own, to properly prepare cross-examination and
rebuttal of plaintiffs’ expert based on the new information.
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advisory committee’s note (stating that the threat of “[r]evised
Rule 37(c)(1) [is to] provide an incentive for full
disclosure”). See also Richard M. Heimann & Rhonda L. Woo,
Import of Amended Federal Rule of Civil Procedure 26(a), 506
PLI/Lit 279, 293 (July-Aug. 1994) (stating that the availability
of the automatic sanctions pursuant to Rule 37(c)(1) “put[s]
teeth into the rule”). The purpose of a “detailed and complete”
expert report as contemplated by Rule 26(a), Fed. R. Civ. P. 26
advisory Committee’s note, is, in part, to minimize the expense
of deposing experts, and to shorten direct examination and
prevent an ambush at trial. See Klonski, 156 F.3d at 269;
Sylla-Sawdon v. Uniroyal Goodrich Tire Co., 47 F.3d 277, 284
(8th Cir. 1995). See also Thibeault v. Square D Co., 960 F.2d
239, 244 (1st Cir. 1992) (stating that “[t]his sort of
disclosure is consonant with the federal courts' desire to make
a trial less a game of blindman's buff and more a fair contest
with the basic issues and facts disclosed to the fullest
practical extent”). Failure to include information concerning
the retained expert that is specifically required by Rule
26(a)(2)(B) -- such as “a listing of any other cases in which
the witness has testified as an expert at trial or by deposition
within the preceding for years”, see Rule 26(a)(2)(B) --
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frustrates the purpose of candid and cost-efficient expert
discovery.
As discussed, infra, the district court was entitled
to conclude on this record, as it did conclude, that plaintiffs’
failure to comply with the automatic disclosure rule of Rule
26(a) was both without substantial justification and not
harmless. For this, the district court – after hearing argument
from both sides – sanctioned the plaintiffs by excluding their
expert testimony entirely, a harsh sanction to be sure, but one
that is nevertheless within the wide latitude of the rule.6 See
Fed. R. Civ. P. 37(c) (incorporating Rule 37(b)(2)(B) which
authorizes the district court to prohibit the offending party
from introducing designated matters in evidence). See also
Sheek v. Badger, 235 F.3d 687, 694 (1st Cir. 2000) (stating that
after the district court made a finding that the defendant
failed to supplement its expert report as required by the
automatic expert disclosure requirements, under Rule 37(c) the
district court could have excluded the expert from testifying
entirely – “a sanction well within the district court’s scope of
6 We need not determine whether the exclusion of plaintiffs’
expert was specifically authorized and directed by Rule 37(c)’s
prohibition against the use of “any witness or information not
so disclosed.” Whether or not this first sentence of Rule 37(c)
applied, exclusion of the expert and dismissal of the case was
clearly authorized under subparagraphs (B) and (C) of
subdivision (b)(2) of Rule 37, incorporated into 37(c).
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discretion” – but chose only to exclude those portions of the
expert’s testimony based on the undisclosed information); Samos
Imex Co. v. Nextel Co., 194 F.3d 301, 305 (1st Cir. 1999)
(citing Rule 37(c) as authority for the proposition that “as
amended, the civil procedure rules make clear that exclusion of
evidence [such as an expert’s testimony] is a standard sanction
for a violation of the duty of disclosure under Rule 26(a)”);
Sears Roebuck & Co. v. Goldstone & Sudalter, 128 F.3d 10, 18 n.7
(1st Cir. 1997) (affirming the district court’s exclusion under
Rule 37(c) of expert testimony because the proffering party
failed to disclose the expert’s identity in the beginning of the
litigation, although the identity was later disclosed);
Thibeault, 960 F.2d at 245 (affirming the trial court’s
preclusion at trial of plaintiff’s expert testimony for failure
to supplement interrogatories concerning expert’s proposed
testimony). On this well-developed record indicating that the
plaintiffs’ disregard of discovery rules was egregious and may
have been deliberate and willful, we cannot say this sanction
was an abuse of discretion. See Grajales-Romero v. American
Airlines, Inc., 194 F.3d 288, 297 (1st Cir. 1999)(“A district
court’s rule 37 sanctions decision is reviewed for abuse of
discretion.”). We, therefore, affirm the district court’s
ruling excluding plaintiffs’ expert testimony under Rule 37(c).
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The district court never reached the merits of the
other motions to compel – the subject of which was the
misstatement and absence of information from answers to
interrogatories regarding Rosa Rivera’s extensive
hospitalization – because, on the second day of the scheduled
trial, the court concluded that without plaintiffs’ expert
witness, they could not make out their EMTALA claim and thereby
dismissed the plaintiffs’ case. In so doing, the district court
was responding to yet another pending motion -- defendant’s
motion to dismiss.7 This is apparently because of the
crystalizing situation – discussed at length during the previous
day’s hearing and raised again the second day of trial – that
without their expert, the plaintiffs were not going to be able
enter into evidence the documents and testimony that would
support its EMTALA claim. As the district court said on that
last day:
You have been made aware at least since last
summer of the deficiencies in the discovery
provided by the plaintiffs . . . . I think
you are aware of the rule now that you come
in today with that belated[] case list
. . . and I think what you are trying to do
is play around with the Court. Even if I
. . . allowed the medical record to come
7 On the first day of trial, before hearing the parties on
the outstanding motions to compel, the district court explicitly
acknowledged defendant’s motion to dismiss, saying that “the
matter is under advisement.” See supra note 2.
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in, there is no way that you can prove [an
EMTALA violation]. A proffer is not
sufficient. A proffer in trial does not
supply whatever is missing from the
witnesses . . . . [A]nd even if you [rely
on] an adverse witness, . . . . that
adverse witness is going to tell you that
they followed the protocol and they rendered
an appropriate medical screening] . . . .
That is if I allowed you do that which I am
not going to allow you to do . . . .
. . . .
It is a shame, I am really sad and
sorry to see that such practice has occurred
in my courtroom but that is the ruling of
the court so since you will not have any
testimony of . . . a medical expert and
since you cannot prove that it was an EMTALA
violation and since there is a motion to
dismiss pending by counsel for the
defendants, with this turn of events I am
going to grant the motion to dismiss and I
am going to enter a judgment in favor of the
defendant dismissing this case at this
moment. There will be no more jury trial, I
am granting defendant’s motion to dismiss
for failure to state that claim under which
relief can be granted in view of the fact
that you have no evidence to prove the
EMTALA violation.
Without an expert witness through which to enter
medical records or provide an opinion in support of their
allegations that the defendant failed to “appropriately screen”
and “stabilize” Rosa Rivera’s emergency condition, allegedly
causing her death, plaintiffs could not satisfy their burden of
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proving an EMTALA violation. We find no legal error in the
district court’s ruling dismissing plaintiffs’ case.8
Plaintiffs’ last attempt at salvaging their case is to
argue that the district court abused its discretion when it
dismissed plaintiffs’ case with prejudice. Plaintiffs argue
that dismissal with prejudice is too harsh a sanction because
the discovery problems were caused by justifiable
misunderstandings and because, plaintiffs believe, defendant
will not be prejudiced should plaintiffs be permitted to
reinstate their case. We disagree. Conduct which may warrant
dismissal of a claim with prejudice includes "disobedience of
court orders, [disregarding] warnings, [and] contumacious
conduct...." Figueroa Ruiz v. Alegria, 896 F.2d 645, 648 (1st
Cir. 1990) (quotation marks omitted). The district court made
explicit and lengthy findings of egregious discovery abuses by
the plaintiffs that support precisely this standard. The
district court was well within its discretion in concluding that
8Although it is true, as appellants points out, that the
effect of excluding their expert was to dismiss their case, we
note that dismissal of the case is one of the sanctions provided
by Rule 37(c)(1), as it incorporates 37(b)(2)(C) into its
arsenal. See Rule 37(c). See also Damiani v. Rhode Island
Hosp., 704 F.2d 12, 15 (1st Cir. 1983)(discussing the Supreme
Court’s ruling in National Hockey League v. Metropolitan Hockey
Club, 427 U.S. 639 (1979) as “a turning point in the law on the
use of the sanction of dismissal for failure to obey a discovery
order”).
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plaintiffs’ disregard for their obligations under the Federal
Rules of Civil Procedure warranted the most severe sanction.
See Goldman, Antonetti, Ferraiuoli, Axtmayer & Hertell v. Medfit
Int'l, Inc., 982 F.2d 686, 691-92 (1st Cir. 1993) (upholding a
dismissal with prejudice under Fed. R. Civ. P. 16(f) for party’s
failure to appear at the scheduled pretrial and settlement
conference, his failure to prepare a pretrial order, and his
failure to otherwise comply with the court's orders); Barreto v.
Citibank, N.A., 907 F.2d 15, 16 (1st Cir. 1990) (taking note of
the "well established principle that discovery orders, other
pre-trial orders, and, indeed, all orders governing the
management of a case are enforceable under pain of sanction for
unjustifiable violation" and holding that dismissal was
warranted to deter litigants from misconduct impeding the
court's ability to manage its limited resources).
For all of these reasons, we affirm the judgment below.
Costs to appellees.
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