United States Court of Appeals
For the First Circuit
No. 01-1934
TOP ENTERTAINMENT INC., ANGELO MEDINA D/B/A PRODUCCIONES
ANGELO MEDINA, AND STAR ENTERTAINMENT, INC.,
Plaintiffs, Appellants,
v.
MARIA ORTEGA D/B/A SERVITEL,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]
Before
Torruella, Circuit Judge,
Coffin, Senior Circuit Judge,
and Selya, Circuit Judge.
Kevin G. Little, with whom Law Offices of David Efron was on
brief, for appellants.
Manuel R. Lopez, with whom Wilson, Suarez & Lopez was on
brief, for appellee.
April 5, 2002
COFFIN, Senior Circuit Judge. The district court dismissed
appellants’ case after concluding that they and their counsel
flouted a court order and then misled the court in attempting to
justify their disobedience. Appellants claim that their actions
were not so unreasonable as to justify dismissal of the case. We
reject their contention and hold that the dismissal was not an
abuse of discretion.
I. Background
On September 29, 1999, appellants Top Entertainment Inc.,
Angelo Medina d/b/a Producciones Angelo Medina, and Star
Entertainment, Inc. filed a three-page complaint against Maria
Ortega, d/b/a Servitel. The complaint cursorily alleged that
Ortega falsely purported to be appellants’ promoter for a series of
Ricky Martin concerts in Peru and Colombia. Later in the case,
when the district court ordered appellants to more fully explain
the allegations, they made an about-face. Appellants now claim
that the parties entered into an agreement that Ortega later
breached by failing to promote the concerts within its terms.
On May 24, 2000, the district court filed its Initial
Scheduling Conference Call, setting out the details for pre-trial
proceedings. On August 8, the parties attended the initial
scheduling conference. The district court entered an order on
August 30, reflecting the issues discussed during that meeting.
Based on the vagueness of the complaint, the August 30 Order
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required appellants to, inter alia, "submit an informative motion
on or before August 31, 2000 detailing the terms of the contractual
relationship between the parties hereto and how those were
breached." The Civil Notice Log Report (the official record of all
orders sent by the docket clerk) reflected that appellants’ counsel
received the order by facsimile transmission at 1:30 p.m. on August
31, 2000.
Appellants failed to respond to the order and never sought an
extension of time to respond. On November 8, 2000, the court
opined that appellants’ failure to answer was "both perplexing and
disturbing" and issued another order instructing plaintiffs to show
cause on or before November 15 as to why the case should not be
dismissed for failure to comply with the earlier order. On
November 14, appellants responded, claiming that they did not
comply because (1) counsel received the order in September, after
the August 31 deadline; and (2) counsel could not contact
appellants to flesh out the factual allegations because they were
on an extended world tour. The November 14 response contained
approximately one and a half pages of additional factual
allegations.
On May 3, 2001, the district court dismissed the action based
on appellants’ failure to respond timely to the August 30 order.
The district court concluded that appellants’ failure was
especially prejudicial because the absence of meaningful
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allegations in the complaint precluded both appellee from
adequately defending herself and the court from effectively
managing its docket. This timely appeal followed.
II. Discussion
A. The District Court’s Dismissal
A district court’s dismissal of a case for failure to comply
with a court order is reversible only if it was a clear abuse of
discretion. See Damiani v. Rhode Island Hosp., 704 F.2d 12, 17
(1st Cir. 1983) (noting that similar claims have "not received a
sympathetic ear from us"); see also Robson v. Hallenbeck, 81 F.3d
1, 2-3 (1st Cir. 1996) ("Mindful that case management is a fact-
specific matter within the ken of the district court, reviewing
courts have reversed only for a clear abuse of discretion."). We
find no such clear abuse of discretion here.
We begin with appellants’ first contention as to why their
failure to respond was justified, namely, that counsel did not
receive the order until September. At oral argument, counsel
conceded that the August 30 order was "served" on August 31 (i.e.,
his office was in possession of the faxed document), but asserted
that he did not "receive" it until sometime after that date.
Counsel’s misleading of the district court as to this distinction
is unjustifiable. The fact that counsel’s office received the
faxed order in August would be enough to show that this argument
was meritless. However, appellants went beyond the bounds of
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credulity and attempted to excuse their conduct by arguing, in
essence, that their failure to respond timely excused them from
responding at all. We would be inclined to uphold the district
court’s decision to sanction appellants even if it were based
solely on the absurdity of this argument.
Appellants, however, proffered another faulty justification:
that counsel could not contact them to discuss the factual
allegations because they were on an extended world tour. This
explanation is in reality a confession of deficiency in pleading.
Rule 11 of the Federal Rules of Civil Procedure forbids parties and
their counsel from alleging factual contentions that lack
evidentiary support. Given appellants’ about-face regarding the
very basis on which the complaint was filed, it is apparent that
the complaint violated Rule 11. At oral argument, counsel
submitted that the false allegations were a result of
miscommunications between he and appellants. Such
miscommunications do not excuse the misconduct. Had appellants
followed the strictures of Rule 11, counsel would not have needed
to contact appellants during their travels to flesh out the factual
allegations upon which the case was based.
Additionally, counsel had ethical obligations to remain in
contact with appellants while they were traveling. Canon 19 of
Puerto Rico’s Canons of Professional Ethics provides that
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The lawyer should always keep his client informed about
every important issue which arises in the development of
the case which has been entrusted to him.
P.R. Laws Ann. tit. 4, App. IX, Canon 19; see also Spiller v.
U.S.V. Labs., Inc., 842 F.2d 535, 537 (1st Cir. 1988) ("The
defendant should not be made to suffer because the plaintiff has
failed to establish an effective means of communication with his
attorney."). Counsel’s inability to contact his clients thus is
not a supportable justification. Especially in this electronic
age, where cell phones, email, and pagers have become the norm, it
is simply incredible that counsel could not contact his clients for
more than two months. Even if communication had been impossible,
counsel should have explained the circumstances to the court.
Moreover, to the extent that counsel submitted that he had to meet
personally with appellants to obtain the information, the leanness
of the November 14 response plainly shows that the sought-after
information was hardly voluminous, and easily could have been
ascertained during a short telephone call. The district court was
thus justified in sanctioning appellants based on their deliberate
non-responsiveness.
Appellants alternatively claim that even if the court was
justified in sanctioning them, dismissal was too harsh, and a
lesser sanction would have been appropriate. A single instance of
prohibited conduct cannot be a basis for dismissal if the conduct
was not "particularly egregious or extreme." Benjamin v. Aroostook
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Med. Ctr., Inc., 57 F.3d 101, 107 (1st Cir. 1995). We have given
as examples of such conduct "extremely protracted inaction
(measured in years), disobedience of court orders, ignorance of
warnings, contumacious conduct, or some other aggravating
circumstance." Cosme Nieves v. Deshler, 826 F.2d 1, 2 (1st Cir.
1987). Here, after concluding that the allegations in the
complaint were vague, the court gave appellants the opportunity to
correct those deficiencies. Not only did appellants fail to
respond, but when they finally did, they misrepresented to the
court that they did not timely receive the order, and essentially
declared that appellants’ travel schedule was more important than
the court’s order. All of these actions gave the district court
ample reason to dismiss the case.1
Furthermore, as we have concluded in the past, "it is well
settled that the question on review is not whether we would have
imposed a more lenient penalty had we been sitting in the trial
judge's place, but whether the trial judge abused his discretion in
imposing the penalty he did." Spiller, 842 F.2d at 537; see also
Figueroa Ruiz v. Alegria, 896 F.2d 645, 649 (1st Cir. 1990)
(finding that district court need not consider lesser sanctions
where a party is "guilty not only of simple delay but of
1
We do not factor into our analysis appellee’s catalogue of
appellants’ other alleged transgressions. The district court
relied only on the circumstances surrounding the August 30 order,
which, as discussed above, provided sufficient authority to dismiss
the case.
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disobedience of a court order as well"); Farm Constr. Servs., Inc.
v. Fudge, 831 F.2d 18, 20 (1st Cir. 1987) (holding that a court
need not "attempt less severe sanctions before turning to the
sanction of dismissal"). Likewise, we reject the argument that
appellants should not be punished for the misdeeds of their
counsel.2 See Link v. Wabash R.R. Co., 370 U.S. 626, 633-34 (1962)
("There is certainly no merit to the contention that dismissal
[because of] counsel’s unexcused conduct imposes an unjust penalty
on the client. Petitioner voluntarily chose this attorney as his
representative in the action, and he cannot now avoid the
consequences of the acts or omissions of this freely selected
agent. Any other notion would be wholly inconsistent with our
system of representative litigation. . . ."); see also Farm Constr.
Servs., 831 F.2d at 18 ("This Circuit, following Link, has turned
a ‘deaf ear’ to the plea that the sins of the attorney should not
be visited upon the client.") (collecting cases).
B. Appellee’s Motion for Appellate Sanctions
Finally, we turn to appellee’s motion for appellate sanctions,
based on the frivolity of this appeal. Rule 38 of the Federal
Rules of Appellate Procedure permits us to levy sanctions against
a party that brings a frivolous appeal. The purpose of such a
2
Velazquez-Rivera v. Sea-Land Service, Inc., 920 F.2d 1072
(1st Cir. 1990), the only case cited by appellants in support of
this argument, is not on point. Rather, that case stands only for
the unremarkable proposition that dismissal is an improper sanction
for inadvertent, as opposed to willful, failures.
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penalty is to "discourage litigants from wasting the time and
monetary resources of both their opponents and the nation's
judicial system with legal arguments that do not merit
consideration." E.H. Ashley & Co. v. Wells Fargo Alarm Serv., 907
F.2d 1274, 1280 (1st Cir. 1990). Appellants chose not to file a
substantive response, instead relying on their appellate briefs.
We have already concluded that appellants willfully disobeyed
the district court, and then compounded their problems by
misleading the court as to when the order was received. This was
therefore not a dismissal based on isolated or inadvertent conduct.
Moreover, throughout this appeal, appellants have in one breath
characterized their actions as "unintentional," and in the next,
explained that they deliberately waited until the conclusion of the
world tour to obtain the information. Mere characterizations of
actions as unintentional cannot carry the day. Given the clear
evidence that appellants’ actions were deliberate, even a cursory
reading of the caselaw would have led to the conclusion that the
district court could not have abused its discretion in dismissing
the case. See, e.g., Morgan v. Mass. Gen. Hosp., 901 F.2d 186, 195
(1st Cir. 1990) ("[W]e cannot find that the district court abused
its discretion where, as here, the appellant willfully violated
procedural rules and orders of the district court."). Because both
the record and the relevant caselaw are plain, it is obvious that
appellants had no realistic chance of success in this appeal. See
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Transnational Corp. v. Rodio & Ursillo, Ltd., 920 F.2d 1066, 1072
(1st Cir. 1990) (finding that an appeal is "frivolous when the
appellant should have realized the weakness of his legal
position").
We also conclude that counsel played a significant role in
unnecessarily prolonging this case. As discussed above, counsel
admitted that the allegations in the complaint were false (and thus
violated Rule 11 of the Federal Rules of Civil Procedure).
Furthermore, until oral argument, counsel continued to assert that
he did not timely receive the Order. Therefore, we find that
counsel and appellants should be held jointly and severally liable
for sanctions. See Cruz v. Savage, 896 F.2d 626, 635 (1st Cir.
1990) (assessing sanctions against an attorney for frivolous
appeal); see also Bartel Dental Books Co. v. Schultz, 786 F.2d 486,
491 (2d Cir. 1986) ("Attorneys can be held jointly and severally
liable with their clients under Rule 38 for bringing frivolous
appeals."). As our opinion indicates, the basis for the district
court’s action and for the awarding of sanctions is fully revealed
in the briefs of the parties. The facts are few and the law is
clear. But appellee not only delayed the filing of her motion for
sanctions until shortly before oral argument, but favored us with
thirty pages of briefing. The irritation produced by lengthy
frustration does not justify adding overextended argumentation to
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our workload. Accordingly, we award double costs and attorneys’
fees in the amount of $2000.
The district court judgment is affirmed.
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