United States Court of Appeals
For the First Circuit
No. 02-1387
BETHZAIDA CINTRÓN-LORENZO ET AL.,
Plaintiffs, Appellants,
v.
DEPARTAMENTO DE ASUNTOS DEL CONSUMIDOR ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin and Cyr, Senior Circuit Judges.
Nicolas Nogueras on brief for appellants.
Roberto J. Sánchez Ramos, Solicitor General, Vanessa Lugo
Flores, Deputy Solicitor General, and Jaime Mercado-Almodóvar,
Assistant Solicitor General, on brief for appellees.
December 10, 2002
SELYA, Circuit Judge. This appeal arises out of an
unsuccessful suit by plaintiff-appellant Bethzaida Cintrón-Lorenzo
(Cintrón) against her former employer, defendant-appellee
Departamento de Asuntos del Consumidor (DACO).1 Before us, Cintrón
challenges both the district court's order dismissing her case for
want of diligent prosecution and its sequential order denying her
motion for reconsideration. For the reasons elucidated below, we
reject her appeal.
The subsidiary facts are fairly straightforward (although
the record is ragged and the briefs confuse certain of the dates).
DACO hired Cintrón as an attorney in or around 1997. The working
relationship did not go smoothly. As a result, Cintrón filed a
multifaceted claim of discrimination with the Equal Employment
Opportunity Commission (EEOC) during the year 2000. In that
document she charged DACO with violating the Americans with
Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213, by refusing to
accommodate her physical disability, and with political
discrimination based upon her support of the Popular Democratic
Party. In due course, the EEOC issued a right-to-sue letter.
1
Cintrón's parents and niece also appear as plaintiffs and
appellants. Because their claims are purely derivative, we treat
the case as if Cintrón was the sole plaintiff and appellant. By
the same token, Cintrón sued not only DACO (an agency of the Puerto
Rican government) but also several public officials, including
Angel E. Rotger-Sabat, José A. Alicea-Rivera, José M. Cintrón-
García, Zenaida García-Villegas, Gladys E. Méndez-Hernández,
Gerardo R. Picó-Del Rosario, and Elvia M. Camayd-Vélez. We refer
to the defendants, collectively, as DACO.
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On August 15, 2000, Cintrón, armed with the right-to-sue
letter, filed a pro se complaint in the federal district court.
She again claimed that DACO had violated both the ADA and her right
to free political association under the First Amendment. For good
measure, she also alleged, inter alia, violations of the Fifth and
Fourteenth Amendments; 42 U.S.C. §§ 1983 and 1985; various sections
of the Puerto Rico Constitution; and a potpourri of local laws. In
an amended complaint, filed as a matter of right, see Fed. R. Civ.
P. 15(a), she added a Rehabilitation Act claim under 29 U.S.C. §
794.
On November 29, 2000, the district court, citing
Cintrón's failure to seek the issuance and service of summonses,
ordered her to show cause why her case should not be dismissed for
lack of diligent prosecution. See Fed. R. Civ. P. 4(m) (requiring
service within 120 days from the filing of a complaint). The
court's order was entered on the docket on December 4, 2000, and,
shortly thereafter, Cintrón served the defendants. She also filed
a written rejoinder in which she stated that difficulties in trying
to obtain legal representation had led to the delay. She indicated
that she would need an additional forty-five to sixty days to
retain counsel. The court did not respond but, by not pressing the
matter, effectively granted her the desired grace period.
On February 16, 2001, Cintrón requested a further sixty-
day extension in order to procure legal representation. Four days
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later, DACO served the plaintiff with a motion to dismiss the
action for lack of subject matter jurisdiction and failure to state
a claim.2 On March 15, 2001, DACO gave notice that it had served
the plaintiff with a supplementary motion to dismiss. Cintrón did
not respond to either of these filings.
In April of 2001, the further sixty-day extension sought
in Cintrón's February 16 motion expired without an entry of
appearance on her behalf. She remained mute. On June 4, 2001,
DACO filed yet a third motion to dismiss, but Cintrón again
neglected to reply.
On June 21, 2001, the district court advised Cintrón that
it would give her until July 2, 2001 to retain counsel and/or
answer the pending motions. In that order, the court noted that it
had, in effect, given Cintrón extra time; and that the extensions
she had sought had "long elapsed." The court explicitly warned
Cintrón that "[t]his [the grace period lasting through July 2,
2001] is the last extension before considering dismissing the case
for lack of diligent prosecution." The court's admonition went
unheeded: Cintrón did nothing, and, on July 16, 2001, the district
court, true to its word, dismissed the case under Fed. R. Civ. P.
41(b) for lack of prosecution.
2
Alternatively, DACO sought a stay of proceedings pending the
Supreme Court's decision in a case then under consideration. That
case has since been decided. See Board of Trustees of Univ. of
Ala. v. Garrett, 531 U.S. 356 (2001). The stay request is,
therefore, moot.
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On July 27, 2001, an attorney filed an entry of
appearance on Cintrón's behalf, along with a motion for
reconsideration.3 The court summarily denied the motion. This
appeal followed.
We turn first to the district court's dismissal of the
case for want of diligent prosecution. Cintrón's basic argument is
that she was suffering from many afflictions (physical,
psychological, and emotional) during the spring of 2001. These
culminated in the performance of a biopsy on June 8, followed by a
cancer diagnosis two weeks later. The problem, however, is that
she failed to bring any of these travails to the attention of the
district court in a timeous fashion. Instead, Cintrón dawdled for
upwards of seven months; her only meaningful response during that
period was a filing, early on, that attributed her dilatoriness to
3
Cintrón's counsel styled this motion as a motion for relief
from judgment under Fed. R. Civ. P. 60(b) and contended that the
district court should set aside its earlier order based upon
excusable neglect. That creates an immediate problem for Cintrón,
as a Rule 60(b) motion does not toll the running of the appeal
period on the original judgment (and, therefore, an appeal from the
denial of such a motion does not bring the merits of the underlying
judgment up for review). See Karak v. Bursaw Oil Corp., 288 F.3d
15, 18-19 (1st Cir. 2002); Rodriguez-Antuna v. Chase Manhattan Bank
Corp., 871 F.2d 1, 2 (1st Cir. 1989). Here, however, Cintrón's
motion was filed within ten days of the entry of the district
court's original judgment. Since we are not bound by a party's
choice of label, we elect, favorably to Cintrón, to consider the
motion as a motion to alter or amend the judgment under Fed. R.
Civ. P. 59(e). See Lopez v. Corporación Azucarera de P.R., 938
F.2d 1510, 1513-14 (1st Cir. 1991); Silk v. Sandoval, 435 F.2d
1266, 1267-68 (1st Cir. 1971). This enables us to reach the merits
of the original order of dismissal.
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difficulty in securing the services of outside counsel. In that
filing, she asked for an additional sixty days within which to
retain counsel. But that period — like the initial forty-five-to-
sixty-day period that she had specified — came and went without the
achievement of any noticeable progress. During and after that
interval, she neither secured counsel, nor answered the several
pending motions, nor apprised the court of a need for more time,
nor revealed that her efforts were hampered by medical problems.
Against this backdrop, the order of dismissal cannot be
faulted.4 A district court, as part of its inherent power to
manage its own docket, may dismiss a case sua sponte for any of the
reasons prescribed in Fed. R. Civ. P. 41(b). E.g., Link v. Wabash
R.R. Co., 370 U.S. 626, 629-31 (1962). Lack of diligent
prosecution is such a reason. Id. at 630-31. We review the
district court's dismissal of a case for want of prosecution only
for abuse of discretion. Id. at 633; Tower Ventures, Inc. v. City
of Westfield, 296 F.3d 43, 46 (1st Cir. 2002). In undertaking that
review, we consider all pertinent circumstances and balance the
authority of the court to prevent undue delay against the policy of
4
We analyze this issue in terms of Fed. R. Civ. P. 41(b) and
the district court's inherent case-management powers. In
undertaking this task, we note that the plaintiff has not developed
any argument based upon the district court's local rule governing
dismissals for lack of prosecution, D.P.R.R. 313.1, and, thus, we
do not consider that rule. See United States v. Zannino, 895 F.2d
1, 17 (1st Cir. 1990) (explaining that issues not squarely raised
on appeal are deemed abandoned).
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the law favoring the disposition of cases on the merits. See HMG
Prop. Investors, Inc. v. Parque Indus. Rio Canas, Inc., 847 F.2d
908, 917 (1st Cir. 1988); Richman v. Gen. Motors Corp., 437 F.2d
196, 199 (1st Cir. 1971). We remain mindful, however, that courts
— especially trial courts — "must be given considerable leeway in
exercising their admitted authority to punish laggardly or
noncompliant litigants." Batiz Chamorro v. P.R. Cars, Inc., 304
F.3d 1, 4 (1st Cir. 2002).
Here, the court exhibited extraordinary patience. First,
it warned Cintrón, as early as December of 2000, that she was
risking dismissal for lack of prosecution. Second, when Cintrón
requested up to sixty days to put her case back on track, the court
gave her that indulgence. Third, when she sought a further sixty-
day period within which to regroup, the court again indulged her
(and, indeed, effectively gave her twice that amount of time).
Even at that juncture, the court did not dismiss the action
outright, but, rather, issued another warning and allowed Cintrón
a further opportunity to make amends. Cintrón rewarded this
magnanimity by stonewalling: she never communicated with the court
in an effort either to explain her personal situation or to shed
light on what efforts she was making to obtain legal
representation. In the end, the court was faced with Cintrón's
protracted — and largely unexplained — noncompliance with time
limits imposed by standing rules and specific orders. This
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protracted noncompliance, in the teeth of explicit warnings, amply
justified a termination of the action. See Top Entertainment Inc.
v. Ortega, 285 F.3d 115, 118-19 (1st Cir. 2002); Figueroa Ruiz v.
Alegria, 896 F.2d 645, 648 (1st Cir. 1990); cf. Tower Ventures, 296
F.3d at 46 (explaining that "disobedience of court orders, in and
of itself, constitutes extreme misconduct (and, thus, warrants
dismissal)").
We think it is particularly noteworthy that Cintrón
requested successive extensions of time within which to retain
counsel, thus impliedly promising compliance by the end of that
aggregate period. As we have said, "[w]hen 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." Tower Ventures, 296 F.3d at 47. Cintrón's failure to
achieve the time line that she herself had suggested weighs heavily
against her. See id. (holding that, absent "excusatory
circumstances," a litigant's failure to adhere to such a deadline
"warrants an inference of deliberate manipulation").
Cintrón's argument that pro se plaintiffs deserve greater
leniency strikes us as disingenuous. There are, of course, some
settings in which such leniency is appropriate. See, e.g., Haines
v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam); Instituto de
Educacion Universal Corp. v. United States Dep't of Educ., 209 F.3d
18, 23-24 (1st Cir. 2000). Here, however, the district court's
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intentions were plain; it issued two explicit warnings. Equally as
important, Cintrón herself is an attorney (albeit not a member of
the federal bar) who should have been well aware of the
consequences of a dogged failure to comply with court orders. At
the very least, Cintrón could — and should — have notified the
court both of her inability to comply and of the reasons for that
noncompliance. Having been warned twice that noncompliance could
result in dismissal, she maintained a stoic silence at her peril.
We turn next to Cintrón's motion for reconsideration.
However that motion is characterized, see supra note 3, we review
the district court's disposition of it for abuse of discretion.
See Teamsters, Chauffeurs, Warehousemen & Helpers Union v.
Superline Transp. Co., 953 F.2d 17, 19 (1st Cir. 1992) (explicating
standard of review referable to Rule 60(b) motions); Appeal of Sun
Pipe Line Co., 831 F.2d 22, 24-25 (1st Cir. 1987) (explicating
standard of review referable to Rule 59(e) motions). We discern no
abuse of the trial court's discretion here.
For convenience, we use the Rule 60(b) standard (although
the outcome would be the same under the jurisprudence of Rule
59(e)). We have made it transparently clear that relief under Rule
60(b) "is extraordinary in nature." Karak v. Bursaw Oil Corp., 288
F.3d 15, 19 (1st Cir. 2002). Accordingly, "motions invoking that
rule should be granted sparingly." Id. In considering such a
motion, we recognize the district court's "intimate, first-hand
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knowledge of the case," and, thus, defer broadly to that court's
informed discretion. Id.
Cintrón claims that her failure to prosecute was the
result of excusable neglect (and, therefore, should have been
forgiven). She identifies her personal problems and her inability
to retain counsel as exceptional circumstances justifying relief
from judgment. We reject this proffer. The determination of what
constitutes excusable neglect in a given case requires that the
court take into account the totality of the circumstances
surrounding the movant's omissions. Pioneer Inv. Servs. Co. v.
Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993); Dávila-
Álvarez v. Escuela de Medicina, 257 F.3d 58, 64 (1st Cir. 2001).
At a bare minimum, a party who seeks relief from judgment
on the basis of excusable neglect must offer a convincing
explanation as to why the neglect was excusable. Graphic Comm'ns
Int'l Union v. Quebecor Printing Prov., Inc., 270 F.3d 1, 5 (1st
Cir. 2001); Hosp. del Maestro v. NLRB, 263 F.3d 173, 175 (1st Cir.
2001) (per curiam). Cintrón has not carried this burden: the
length of the delay was inordinate in this case; Cintrón's
condition varied over time; and even if her ailments interfered to
some extent with her ability to secure counsel — a matter on which
we take no view — she offers no credible excuse for not
communicating her plight to the district court in a timely fashion.
When a litigant (especially a litigant who is trained as a lawyer)
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elects to file a suit pro se, her duty of attending to the case is
not automatically excused by personal tragedy or emotional
upheaval.
The plaintiff's failure to communicate with the court
brings this point into sharp focus. As we explained two decades
ago, a party's "first obligation is to make every effort to comply
with the court's order. The second is to seek consent if
compliance is, in fact, impossible. And the third is to seek court
approval for noncompliance based on a truly valid reason." Damiani
v. R.I. Hosp., 704 F.2d 12, 17 (1st Cir. 1983). Cintrón blatantly
violated this code of conduct: among other things, she failed not
only to inform the district court of her alleged impairments but
also to seek judicial approval for her repeated noncompliance with
procedural rules, court orders, and a series of deadlines. Even
taking her description of her afflictions at face value, nothing
about them excuses this persistent failure to communicate. Giving
due weight to all of the circumstances surrounding Cintrón's
extensive neglect, we would be hard pressed to find it excusable.
A fortiori, we cannot find that the district court's denial of her
motion for relief from judgment was an abuse of discretion.
That ends this aspect of the matter. Although Cintrón's
case evokes sympathy, we often have remarked that hard cases have
a propensity to make bad law. E.g., Burnham v. Guardian Life Ins.
Co., 873 F.2d 486, 487 (1st Cir. 1989). Bearing in mind that the
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district court "is best positioned to determine whether the
justification proffered in support of a Rule 60(b) motion should
serve to override the opposing party's rights and the law's
institutional interest in finality," Karak, 288 F.3d at 19, we
conclude that the circumstances to which Cintrón alludes, taken as
a whole, are not sufficiently excusatory to demand the
extraordinary relief that she requests.
We need go no further. "In our adversary system of
justice, each litigant remains under an abiding duty to take the
legal steps that are necessary to protect his or her own
interests." Cotto v. United States, 993 F.2d 274, 278 (1st Cir.
1993). Given Cintrón's patent disregard of this duty, extending
over many months, we hold that the district court acted within its
discretion both in dismissing Cintrón's case for lack of
prosecution and in denying her motion for reconsideration.
Affirmed.
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