United States Court of Appeals
For the First Circuit
No. 01-2648
HEIDI CROSSMAN,
Plaintiff, Appellant,
v.
RAYTHEON LONG TERM DISABILITY PLAN,
RAYTHEON COMPANY, and
METROPOLITAN LIFE INSURANCE COMPANY,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge]
Before
Torruella, Circuit Judge,
B. Fletcher,* Senior Circuit Judge,
and Lipez, Circuit Judge.
William P. Boland, with whom Gleason Law Offices, P.C. was on
brief, for appellant.
Carmel A. Craig, with whom James F. Kavanaugh, Jr., Stephen S.
Churchill, and Conn Kavanaugh Rosenthal Peisch & Ford, LLP were on
brief, for appellees.
December 31, 2002
*
Hon. Betty B. Fletcher, of the Ninth Circuit, sitting by
designation.
TORRUELLA, Circuit Judge. Plaintiff-appellant Heidi
Crossman appeals from the district court's dismissal of her
complaint for failure to prosecute. The district court dismissed
Crossman's claim because of William P. Boland's, her counsel's,
failure to appear for the initial scheduling conference. Because
we conclude that the district court abused its discretion in meting
out this harsh sanction, we reverse and remand the case to the
district court for further proceedings.
I. Background
On May 31, 2001, Crossman filed a complaint against
defendants-appellees, Raytheon Long Term Disability Plan, Raytheon
Company, and Metropolitan Life Insurance Company ("Raytheon and
MetLife"), seeking benefits and alleging breach of fiduciary duty
under the Employee Retirement Income Security Act of 1974, 29
U.S.C. §§ 1001 et seq. After Raytheon and MetLife timely filed an
answer, the district court issued a Notice of Scheduling Conference
("Notice"). The Notice required that the parties attend an initial
scheduling conference on September 26, 2001. Prior to the
scheduling conference, the Notice required the parties to confer,
the plaintiff to present a settlement proposal to the defendants,
and the parties to file a joint statement. Under the terms of the
Notice, failure to fully comply could result in sanctions under
Local Rule 1.3 of the District of Massachusetts. Such sanctions
include "dismissal, default, or the imposition of other sanctions
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as deemed appropriate by the judicial officer." D. Mass. Loc.
R. 1.3.
On September 5, 2001, Boland sent a proposed joint
statement to Raytheon and MetLife's counsel via fax. Defense
counsel sent a response to Boland via mail and fax, and also
requested a conference to discuss the statement. After receiving
no response to that communication, defense counsel left a message
for plaintiff's counsel. Once again, Boland failed to respond. As
of September 19, 2001, the deadline for the filing of the joint
statement, Raytheon and MetLife's counsel had received no further
communication from Boland regarding the joint statement. The
defense counsel then proceeded to serve and file a statement for
the defendants, rather than a joint statement.
Boland failed to appear for the initial scheduling
conference on September 26, 2001. The next day, the district court
dismissed Crossman's complaint for failure to prosecute, but no
factual findings accompanied the order of dismissal.
On October 4, 2001, Crossman filed a motion to vacate the
order of dismissal. In support of the motion, Boland filed a sworn
affidavit stating that he had received the Notice but inadvertently
failed to enter the scheduling conference on his calendar. On
October 15, 2001, Raytheon and MetLife filed an opposition to
plaintiff's motion to vacate dismissal in which they gave their
version of the events preceding the scheduling conference.
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Defendants argued that plaintiff's counsel must have been on notice
of the conference given the proposed joint statement, the repeated
attempted contacts by defense counsel,1 and the service of the
defendant's statement, which was filed in lieu of a joint
statement. The defendants also argued that preparing for and
attending the aborted scheduling conference constituted prejudice.
On October 31, 2001, the district court denied Crossman's motion to
vacate the order of dismissal "for reasons substantially as stated
in defendants' opposition." This timely appeal followed.
II. Standard of Review
Trial courts have broad authority to manage their
dockets, including the ability to sanction attorneys or to dismiss
cases for counsel's failure to comply with pre-trial orders. Fed.
R. Civ. P. 16(f), 41(b); see Jones v. Winnepesaukee Realty, 990
F.2d 1, 5 (1st Cir. 1993). Although we review choice of sanctions
for clear abuse of discretion, the district court's power to
discipline is not without limit. See Figueroa Ruiz v. Alegría, 896
F.2d 645, 647 (1st Cir. 1990) (indicating the district court's
power to issue sanctions is not unfettered); Enlace Mercantil
Internacional, Inc. v. Senior Indus., Inc., 848 F.2d 315, 317-18
(1st Cir. 1988) (discussing "limitations on the use of dismissal as
a penalty"); Damiani v. Rhode Island Hosp., 704 F.2d 12, 17 (1st
1
The "repeated" contacts included a mailed and faxed request for
a meeting and a follow-up message.
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Cir. 1983) (indicating that district court decisions regarding
sanctions are not simply "rubber-stamped").
III. Discussion
Although "[a] district court unquestionably has the
authority to dismiss a case with prejudice for want of prosecution"
in order to manage its docket, the court must consider the nature
and number of violations on the part of counsel prior to taking
such action. Zavala Santiago v. González Rivera, 553 F.2d 710, 712
(1st Cir. 1977); see also Robson v. Hallenbeck, 81 F.3d 1, 2-3 (1st
Cir. 1996) (indicating factors to be considered in determining
appropriateness of sanctions include "severity . . . [and]
repetition of violations"). According to Boland, he received the
Notice and thus was aware that a scheduling conference would take
place, but a clerical error at counsel's office resulted in the
failure to enter the date of the conference on the office calendar.
Although we acknowledge the need to deter delays and enforce
orders, we cannot say that the behavior here rose to the level
necessary to support the harsh penalty of dismissal -- the record
does not support the defendants' argument that Boland engaged in a
series of deliberate violations. See Velásquez-Rivera v. Sea-Land
Serv., Inc., 920 F.2d 1072, 1076 (1st Cir. 1990) (reversing
district court's dismissal of complaint where the only misconduct
was the "inadvertent if inexcusable failure of counsel to attend
the [scheduling] conference"); Richman v. General Motors Corp., 437
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F.2d 196, 199 (1st Cir. 1971) (holding that "[d]ismissal is a harsh
sanction which should be resorted to only in extreme cases" that
have a clear record of delay or contumacious conduct); 6A Wright,
Miller & Kane, Federal Practice & Procedure § 1531 (2d ed. 1990)
(hereinafter Wright & Miller) ("Parties should not be denied relief
solely because of a procedural error or unless clearly contumacious
behavior is involved."). Here, the district court's dismissal
appeared predicated on failure to comply with the Notice,2 which is
not the type of action that alone should support the sanction of
dismissal. See Top Entertainment, Inc. v. Ortega, 285 F.3d 115,
118 (1st Cir. 2002) ("A single instance of prohibited conduct
cannot be a basis for dismissal if the conduct was not
'particularly egregious or extreme'") (quoting Benjamin v.
Aroostook Med. Ctr., Inc., 57 F.3d 101, 107 (1st Cir. 1995));
Wright & Miller § 1531 n.10 (collecting cases indicating that
dismissals absent contumacious behavior generally constitute an
abuse of discretion).
In evaluating the propriety of dismissal, we also
consider whether it was necessary to avoid prejudice to the
opposing party. See Robson, 81 F.3d at 2-3 (including "prejudice
2
Boland violated the Notice in the following ways: (1) he did not
finish preparing the joint statement, (2) he did not file the joint
statement, and (3) he did not attend the scheduling conference.
Rather than being violations of separate orders and thus a pattern
of disobedience, however, we believe the behavior boiled down to
what was quite possibly an inadvertent failure to comply with one
judicial order.
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to the other side and to the operations of the court" as another
factor relevant to the evaluation of sanctions); accord Zavala
Santiago, 553 F.2d at 712. Defendants argue that the expense
incurred in unsuccessfully attempting to communicate with Boland
and in preparing for and attending an aborted scheduling conference
constitutes prejudice. While it is unfortunate that such efforts
and preparation were in vain, such fruitless expenditures are not
unusual in the course of litigation and do not rise to the level of
prejudice justifying dismissal. See Richman, 437 F.2d at 199
(indicating that incurring litigation-related expenses did not
constitute prejudice to the defendant).
Prior to choosing the harsh sanction of dismissal, a
district court should consider the "broad panoply of lesser
sanctions available to it," such as "contempt, fines, conditional
orders of dismissal, etc." Id. The severe sanction of dismissal
serves as a powerful "means of deterring others from frustrating
the district court's well justified efforts at docket management,"
but it is not the only such deterrent. Zavala Santiago, 553 F.2d
at 713 (internal citations omitted); see also Damiani, 704 F.2d at
15. The "adequacy of lesser sanctions" should have entered the
district court's calculus. Robson, 81 F.3d at 2-3. The court did
not indicate any such consideration of alternative sanctions, and
thus we find the dismissal constituted an abuse of discretion.
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IV. Conclusion
For the foregoing reasons, we reverse and remand the case
to the district court with instructions to reinstate the case to
its status as of the time of dismissal. Costs are awarded to
appellant Crossman pursuant to Fed. R. App. P. 39(a)(3).
Reversed and remanded.
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