United States Court of Appeals
For the First Circuit
No. 01-2752
JOSE A. BATIZ CHAMORRO,
Plaintiff, Appellant,
v.
PUERTO RICAN CARS, INC., D/B/A THE HERTZ CORPORATION,
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
Selya, Circuit Judge,
Coffin and Cyr, Senior Circuit Judges.
Jorge Martínez Luciano, and Law Offices of Pedro Ortiz
Alvarez, PSC on brief for appellant.
Pedro J. Manzano-Yates, Luis F. Colón-Conde, and Fiddler
Gonzalez & Rodriguez, LLP on brief for appellee.
August 27, 2002
SELYA, Circuit Judge. On October 8, 1999, plaintiff-
appellant José A. Batiz Chamorro (Batiz) invoked federal question
jurisdiction, 28 U.S.C. § 1331, and brought an employment
discrimination action in the United States District Court for the
District of Puerto Rico against defendant-appellee Puerto Rican
Cars, Inc., d/b/a The Hertz Corporation (Hertz). Given the
posture of this appeal, the details of the underlying dispute
between Batiz and Hertz need not concern us. What matters is that
a little over two years after suit had been started, the district
court dismissed the case with prejudice for want of prosecution and
failure to comply with the court's orders. Batiz appeals. We
affirm.
The travel of the case is illuminating. After receiving
an extension, Hertz filed its answer on December 28, 1999. In
February of 2000, Batiz initiated a request for production of
documents. See Fed. R. Civ. P. 34. The parties exchanged some
desultory communications about this request, but could not achieve
consensus. In an attempt to bring matters to a head, Hertz moved
for a protective order on grounds that the document request
intruded upon time-barred periods and sought irrelevant materials.
Batiz did not oppose this motion, and only a few uncontroversial
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documents were produced.1 Batiz made no further efforts at
discovery, and the case stalled.
On October 25, 2000, the district court noted Batiz's
apparent lack of interest in pressing forward and ordered him to
show cause why the action should not be dismissed for want of
prosecution. Batiz received an extension of time within which to
reply and thereafter filed a response in which he (1) explained
what steps he had taken to prosecute the action, (2) pledged "to
avoid further delays," and (3) beseeched the court for an
"opportunity to continue" the pursuit of his claims. The district
court did not press the show-cause order, but, rather, scheduled a
status conference for December 15, 2000, at which time the parties
were instructed to inform the court no later than February 28,
2001, about how they intended to proceed with the diligent
prosecution of the action. Batiz ignored this order. Hertz
complied with it, listing various depositions that had been taken
following the status conference, describing the parties' informal
agreement to stay further discovery until April 17, 2001, and
limning its future plans (including its intention to move for
summary judgment).
Between May and September of 2001, the parties engaged in
limited discovery (e.g., Hertz unsuccessfully requested the
1
A magistrate judge eventually granted the unopposed motion on
December 5, 2000.
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production of documents and deposition transcripts, and Batiz
eventually made a second request for production of documents).
These maneuverings generated no docket activity. Apparently
dismayed both by the lack of activity and by Batiz's failure to
file the mandated progress report, the district court invoked Rule
41(b) of the Federal Rules of Civil Procedure2 and dismissed the
case with prejudice by order dated October 18, 2001. The clerk
entered the order on the docket on October 23, and Batiz filed a
timely motion to alter or amend. See Fed. R. Civ. P. 59(e). Hertz
opposed the motion. On November 5, the district court summarily
denied reconsideration. This appeal ensued.
Before we can address the merits of the appeal, we first
must dispel a procedural miasma created by poor draftsmanship. As
a general rule, a notice of appeal must specify the orders and
judgments that the appellant intends to contest. See Fed. R. App.
P. 3(c)(1)(C). The notice of appeal in this case targets only the
order denying reconsideration (to the exclusion of the order
dismissing the action). This raises the question of whether the
notice, as drafted, confers jurisdiction upon this court to review
the original order of dismissal.
Hertz's position — that Batiz has forfeited any right to
have this court review the district court's original decision – is
2
In pertinent part, this rule authorizes a district court to
dismiss an action "for failure of the plaintiff to prosecute or to
comply with . . . any order of the court." Fed. R. Civ. P. 41(b).
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not entirely without force. The pendency of a timely Rule 59(e)
motion tolls the running of the appeal period from the original
judgment. See Fed. R. App. P. 4(a)(4); Fed. R. Civ. P. 59(e).
Nevertheless, an appeal from an order denying such a motion is
generally not considered to be an appeal from the underlying
judgment. Mariani-Giron v. Acevedo-Ruiz, 945 F.2d 1, 3 (1st Cir.
1991).
The holding in Mariani-Giron does not mean, however, that
an appellate court invariably is bound to read the notice of appeal
literally. Such formalism is not obligatory; instead, our
precedents encourage us to construe notices of appeal liberally and
examine them in the context of the record as a whole. See e.g.,
Kotler v. Am. Tobacco Co., 981 F.2d 7, 11 (1st Cir. 1992). That
function proceeds with a recognition that the core purpose of a
notice of appeal is to "facilitate a proper decision on the
merits." Foman v. Davis, 371 U.S. 178, 182 (1962). In light of
these principles, it is not surprising that courts faced with
poorly drafted notices of appeal occasionally have been known to
rescue the technically defaulted portion of an appeal. E.g., Town
of Norwood v. New Eng. Power Co., 202 F.3d 408, 415 (1st Cir.
2000). We caution, however, that such rescue missions are not
automatic, and litigants will do well to draft notices of appeal
with care.
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Against this backdrop, we inspect Batiz's notice of
appeal. Notwithstanding its focus on the order denying
reconsideration, the text of the notice mentions the original
judgment and notes that "[s]aid Judgment dismissed the . . . action
on the ground[] of want of prosecution." Read in context, this
reference is consistent with a desire to have this court review the
propriety of the original dismissal for want of prosecution. The
fact that Batiz, in his appellate briefs, presents exactly the same
arguments as to the original order of dismissal and as to the
denial of his subsequent motion for reconsideration provides
further justification for ascribing to him an intent to seek review
of both orders. See Town of Norwood, 202 F.3d at 415. Finally,
both sides have fully briefed the merits, and undertaking appellate
review of the original order of dismissal would not unfairly
prejudice Hertz. Cf. Kelly v. United States, 789 F.2d 94, 96 n.3
(1st Cir. 1986) (explaining that an appellee who is not misled by
a misstatement in a notice of appeal is, by definition, not
prejudiced by it). We conclude, therefore, that the notice of
appeal, while carelessly drafted, provides a sufficient foundation
for the exercise of appellate jurisdiction over the original order
of dismissal. See Foman, 371 U.S. at 181-82; In re San Juan Dupont
Plaza Hotel Fire Litig., 45 F.3d 564, 567 (1st Cir. 1995); LeBlanc
v. Great Am. Ins. Co., 6 F.3d 836, 839-40 (1st Cir. 1993).
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Having resolved the jurisdictional question, we turn to
the two disputed orders. We begin our analysis with bedrock: the
effective administration of justice requires that trial courts
possess the capability to manage their own affairs. Chambers v.
NASCO, Inc., 501 U.S. 32, 43 (1991). The authority to order
dismissal in appropriate cases is a necessary component of that
capability. See Link v. Wabash R.R. Co., 370 U.S. 626, 630-31
(1962). Moreover, the inherent power of trial courts to dismiss
cases for want of prosecution or disregard of judicial orders is
reinforced and augmented by Rule 41(b). See id.; HMG Prop.
Investors, Inc. v. Parque Indus. Rio Canas, Inc., 847 F.2d 908, 916
(1st Cir. 1988).
It is self-evident that "courts cannot function if
litigants may, with impunity, disobey lawful orders." HMG Prop.
Investors, 847 F.2d at 916. For that reason, courts must be given
considerable leeway in exercising their admitted authority to
punish laggardly or noncompliant litigants. It follows logically
that "the trier's determination to dismiss a case for such reasons
should be reviewed only for abuse of discretion." Aoude v. Mobil
Oil Corp., 892 F.2d 1115, 1117 (1st Cir. 1989).
Even so, dismissal with prejudice is a severe sanction.
To ensure against arbitrariness, a reviewing court must balance the
trial court's authority to impose such a sanction against the
obvious policy considerations that favor disposition of cases on
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the merits. See Zavala Santiago v. Gonzalez Rivera, 553 F.2d 710,
712 (1st Cir. 1977); Richman v. Gen. Motors Corp., 437 F.2d 196,
199 (1st Cir. 1971). This is an "open-ended balancing test," HMG
Prop. Investors, 847 F.2d at 917 n.13, conducted with due respect
for the trial court's first-hand knowledge of the nuances of the
case and the (sometimes recondite) agendas of the parties.
In Enlace Mercantil Internacional, Inc. v. Senior
Industries, Inc., 848 F.2d 315, 317 (1st Cir. 1988), we said that
the sanction of dismissal for want of prosecution is appropriate
only when the plaintiff's misconduct has been "extreme." For this
purpose, however, extreme misconduct comes in many shapes and
forms, ranging from protracted foot-dragging to defiance of court
orders to ignoring warnings to other aggravating circumstances.
Cosme Nieves v. Deshler, 826 F.2d 1, 2 (1st Cir. 1987). A classic
form of aggravating circumstance is a wasteful expenditure of the
court's time. Enlace, 848 F.2d at 317.
In this instance, the district court dismissed the case
because Batiz, after being suitably forewarned – the court earlier
had issued a show-cause order that specifically mentioned the
possibility of dismissal – nevertheless flouted the court's direct
order to furnish a progress report. In the district court's view,
this stonewalling not only exhibited "a disregard for the court's
time and schedule" but also made manifest "a repeated unwillingness
to move this case forward." These reasons, if well-founded,
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describe conduct extreme enough to warrant dismissal. The
question, then, is whether the district court's description of
Batiz's behavior finds adequate support in the record. We think
that it does.
The district court's decree of December 15, 2000
"instructed [the parties] to inform the Court by February 28, 2001,
how they will proceed with this case." This was clear, direct, and
to the point: the order obligated both Hertz and Batiz to file
progress reports within the stipulated time frame. Hertz complied;
Batiz did not. That was a blatant violation of the court's order
– and one that undermined the court's studied effort to manage its
docket. See Tower Ventures, Inc. v. City of Westfield, ___ F.3d
___, ___ (1st Cir. 2002) [No. 02-1145, slip op. at 5-6] ("To manage
a crowded calendar efficiently and effectively, a trial court must
take an active role in case management. Scheduling orders are
essential tools in that process — and a party's disregard of such
orders robs them of their utility."). This conduct breached
Batiz's duty to the court, see Rosario-Diaz v. Gonzalez, 140 F.3d
312, 315 (1st Cir. 1998) (discussing a party's "unflagging duty to
comply with clearly communicated case-management orders"), and
wasted the court's time in the bargain.
In an attempt to confess and avoid, Batiz points to
Hertz's progress report, tells us that he agrees with Hertz's
assessment, and argues that it would have been superfluous to file
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his own report because such a statement would have covered the same
ground. That argument smacks of post-hoc rationalization, and the
district court, in denying reconsideration, flatly rejected it. In
all events, the argument goes wide of the mark. The district court
directed both parties to file progress reports and it was entitled
to know how each of them viewed the case. Batiz could have
complied with the order either by a submission that tracked Hertz's
report or by simply stating that he agreed with Hertz's summary.
What he could not do was to take it upon himself to ignore the
order and leave the district court guessing.
Batiz's other justification for noncompliance is that his
counsel was busy with a complicated jury trial. We consistently
have refused to accept such excuses, see, e.g., Tower Ventures, ___
F.3d at ___ n.7 [slip op. at 7 n.7]; Mendez v. Banco Popular de
P.R., 900 F.2d 4, 8 (1st Cir. 1990); Pinero Schroeder v. FNMA, 574
F.2d 1117, 1118 (1st Cir. 1978) (per curiam), and we see no basis
for applying a different standard here. The fact that an attorney
has other fish to fry is not an acceptable reason for disregarding
a court order.
In a last-ditch effort to salvage the case, Batiz asserts
that the district court violated its own local rules. Focusing on
D.P.R.R. 313, he argues that the rule limits a trial judge's
authority, under Rule 41(b), to dismiss a case with prejudice for
want of prosecution. To the extent that this argument is true, it
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does not help Batiz: the district court's action was fully
consistent with D.P.R.R. 313 as presently written. We explain
briefly.
Batiz relies on cases in which we vacated dismissals for
want of prosecution because they clashed with the District of
Puerto Rico's local rules. E.g., Jardines Bacata, Ltd. v. Diaz-
Marquez, 878 F.2d 1555 (1st Cir. 1989); Martinez Class v. Caribe
Hilton Hotel, 784 F.2d 12 (1st Cir. 1986). Each of those
decisions, however, was premised upon a finding that the order of
dismissal conflicted with a now-defunct provision of the local
rules. That provision limited dismissal for want of prosecution to
cases in which "no substantial proceedings of record have been
taken for a term of six (6) months as shown by the record docket."
D.P.R.R. 313.1(B) (repealed Apr. 29, 1997). Since substantial
proceedings had occurred within the proscribed six-month period, we
held that dismissal for want of prosecution was improper. See
Jardines Bacata, 878 F.2d at 1560; Martinez Class, 784 F.2d at 12.
The case at bar arises under a different regime. In its
amended form, applicable here, the comparable provision of D.P.R.R.
313.1(B) restricts the class of cases subject to dismissal for want
of prosecution to those in which "a certificate of readiness for
trial has not been filed within one (1) year after the filing of
the action." Batiz does not allege that this case falls within the
prophylaxis of that restriction.
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Relatedly, Batiz complains about the fact that the
dismissal operates with prejudice, asseverating that this feature
violates D.P.R.R. 313.2. But that rule allows the court to direct
that the dismissal of a case will operate as an adjudication on the
merits. See D.P.R.R. 313.2 (stating that the dismissal of a case
"shall not operate as an adjudication of the merits, unless the
Court . . . directs otherwise") (emphasis supplied). The court
made such an express direction here.
We add a coda. Although Batiz's arguments are
unpersuasive, the court imposed a heavy-duty sanction. Were
Batiz's disregard of the court's order an isolated incident, this
sanction — dismissal with prejudice — would give us pause. Here,
however, the district court supportably viewed Batiz's failure to
file the court-ordered progress report as part of a pattern. On at
least two occasions, Batiz had neglected to respond to discovery
requests; he had not replied either to Hertz's motion for a
protective order or to Hertz's demands for document production; and
over a two-year span, he had made only a token effort at
discovery.3 The case languished to such an extent that the court
3
We note that Batiz, in responding to the show-cause order on
November 16, 2000, told the district court that he would "tailor"
a revised request for production of documents in an effort to quell
the objections raised in Hertz's motion for a protective order.
Despite this pledge, a revised request was not served until
September of 2001. This inexplicable ten-month gap aptly
illustrates why the district court (understandably, in our view)
grew impatient.
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was forced to issue a show-cause order in an effort to move it
along. That order, although ultimately withdrawn, placed Batiz on
notice that further procrastination in the prosecution of his
action would not be well-received. Under the circumstances, Batiz
spurned the order to file a progress report at his peril. See
Rosario-Diaz, 140 F.3d at 315.
We need go no further. Historically, appellate courts
have not lent a sympathetic ear to the importunings of those who
claim that a trial judge abused his or her discretion by dismissing
a case for want of prosecution. E.g., Damiani v. R.I. Hosp., 704
F.2d 12, 17 (1st Cir. 1983). This case is in that tradition. By
lollygagging throughout the proceedings, Batiz set the stage for
the denouement that was to follow. When he disregarded the order
to file a progress report, that was the straw that broke the
dromedary's back. Given that omission and what had occurred (or,
more precisely put, what had not occurred) over the two-year life
of this case, the trial court did not abuse its discretion by
dismissing this action for want of prosecution.4 Because that is
4
It is, of course, settled that a trial judge does not need to
exhaust milder sanctions before resorting to dismissal when a
noncompliant litigant has disregarded court orders and been
suitably forewarned. E.g., Tower Ventures, ___ F.3d at ___ [slip
op. at 5]; Top Entertainment Inc. v. Ortega, 285 F.3d 115, 119 (1st
Cir. 2002); Velazquez-Rivera v. Sea-Land Serv., Inc., 920 F.2d
1072, 1076 (1st Cir. 1990); Figueroa-Ruiz v. Alegria, 896 F.2d 645,
649 (1st Cir. 1990); HMG Prop. Investors, 847 F.2d at 918.
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so, the court, by definition, did not abuse its discretion in
refusing to alter or amend the judgment.
Affirmed.
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