United States Court of Appeals
For the First Circuit
No. 06-1035
JAMES J. MALOT; CAROLINE J. CHANTRY;
CONJUGAL PARTNERSHIP MALOT-CHANTRY,
Plaintiffs, Appellants,
v.
DORADO BEACH COTTAGES ASSOCIATES S. EN C. POR A., S.E.;
P.T. COTTAGES, INC.; DANIEL W. SHELLEY; SONIA SHELLEY;
CONJUGAL PARTNERSHIP SHELLEY-SHELLEY; A.B. AND C. COMPANIES;
JOHN DOE; RICHARD DOE; JENNY DOE; INSURANCE COMPANY A, B, AND C,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.
Antonio Cuevas-Delgado and Cuevas Kuinlam & Bermúdez, on brief
for appellants.
José Luis Novas-Debién, on brief for appellees.
February 23, 2007
TORRUELLA, Circuit Judge. Plaintiffs-appellants James J.
Malot ("Malot"), his wife, Caroline J. Chantry ("Chantry"), and
their conjugal partnership (collectively "Plaintiffs") brought this
breach of contract action against Dorado Beach Cottages Associates
and others (collectively "Defendants") following a failed real
estate deal. The district court dismissed Plaintiffs' case for
disregard of the court's discovery and management orders and for
failure to prosecute. Plaintiffs appeal the dismissal on the
grounds that dismissal with prejudice was too harsh a penalty under
the circumstances and that the district court abused its discretion
in dismissing the complaint as to all plaintiffs when only one of
the plaintiffs failed to comply with a discovery order. After
careful consideration, we reverse the district court's dismissal of
Plaintiffs' claims and remand for further proceedings.
I. Background and Prior Proceedings
In 1994, Plaintiffs entered into an agreement with Dorado
Beach Cottages Associates to participate in a real estate
development project in the Municipality of Dorado in Puerto Rico.
Plaintiffs later moved to California. A dispute arose between the
parties and Plaintiffs filed suit for breach of contract on
February 26, 2003 in the District of Puerto Rico.1 On January 27,
1
Defendants filed a counterclaim, which the district court
eventually dismissed without prejudice pursuant to Defendants'
request.
-2-
2004, the district court held an initial scheduling conference,2
setting a cut-off date of November 1, 2004 for all discovery
proceedings and requiring that Plaintiffs be available to be
deposed in Puerto Rico, since they chose Puerto Rico as the forum.
The scheduling order also indicated that the court would "not
hesitate to impose sanctions should obstinacy be present."
On March 12, 2004, Plaintiffs requested an extension of
time until April 4 to answer interrogatories, which were originally
due on March 25. They failed to meet the self-imposed deadline,
filing their answers on May 24. During the following months and on
its own initiative, the district court extended the cut-off date
for discovery twice, first to December 15, 2004, and then to
January 14, 2005, in an attempt to encourage settlement.
On September 21, 2004, after two failed attempts to
depose Plaintiffs, Defendants filed a motion to compel Plaintiffs
to appear for their depositions, and also requested the imposition
of sanctions of reasonable attorney fees. In response, Plaintiffs
explained that they had not been available to attend the suggested
dates of deposition due to the "very tight schedule in their
personal lives," given that Chantry was a pediatrician, a resident
teacher at the Medical Center of the University of California, and
in charge of research at the university, and Malot was involved in
2
This scheduling conference was held after the court imposed
sanctions on the defendants for failing to appear at the originally
scheduled conference.
-3-
another lawsuit in California. Plaintiffs suggested deposition
dates of the morning of October 20 for Chantry and all day
October 21 for Malot. On October 3, the district court set the
dates for Plaintiffs' depositions for October 20, 21, 22, and if
necessary, 23. The district court denied without prejudice
Defendants' request for attorneys fees "in connection with
plaintiffs [sic] obstinate refusal to appear to the taking of their
depositions," but warned Plaintiffs that "the Court will not
hesitate to impose sanctions, as a consequence of failure to comply
with this order."
Chantry appeared for only two hours on October 20, but
offered to continue the deposition on October 21 from Orlando,
Florida via videoconferencing at her own expense. Defendants
refused the offer, citing the district court's clear requirement,
stated in both the initial scheduling conference and the October 3
order, that Plaintiffs should be available for depositions in the
forum that they themselves selected. Instead, the parties agreed
that Chantry would return to Puerto Rico to conclude her deposition
on November 23. Malot completed his deposition during the
specified dates.
During Malot's deposition on October 22 and by letter to
defense counsel dated November 9, Plaintiffs informed Defendants
that despite their previous agreement, Chantry was not available to
come to Puerto Rico on November 23 because the university
-4-
hospital's policy required at least six weeks' notice to cancel
scheduled appointments, and she had appointments scheduled for that
day. Plaintiffs again offered to continue the deposition by video
instead. Defense counsel indicated at Malot's deposition that
"[a]s things stand" the parties had an agreement to complete
Chantry's deposition in Puerto Rico on November 23, but that he
would consult with his client regarding Plaintiffs' offer and get
back to Plaintiffs' counsel. Defendants never responded further to
Plaintiffs' request, and Chantry did not appear in Puerto Rico on
November 23.
On January 12, 2005, two days before the discovery
deadline, the district court granted Plaintiffs' request to extend
discovery once again, this time to February 14. The court warned
the parties that no further extensions would be granted and advised
Plaintiffs' counsel that Chantry had to complete her deposition in
Puerto Rico before this date. Notwithstanding the warning, two
days before the deadline, Plaintiffs again requested an extension,
which would have been the fifth extension of the discovery
deadline. The district court denied the request. Chantry failed
to appear to complete her deposition.
On March 1, 2005, Defendants filed a motion to dismiss
pursuant to Federal Rule of Civil Procedure 37(b)(2).3 On July 28,
3
Plaintiffs' response was due on March 14, but on March 4,
Plaintiffs requested an extension until April 4, which the district
court "reluctantly" granted.
-5-
2005, the district court dismissed Plaintiffs' case with prejudice
for failure to obey a discovery order4 and failure to prosecute.5
The court acknowledged that
"[d]ismissal with prejudice is a harsh
sanction, . . . which should only be employed
when a Plaintiffs' [sic] misconduct has been
extreme, . . . and only after the district
court has determined that none of the lesser
sanctions available to it would truly be
appropriate." However, the Court explicitly
makes such a finding. Plaintiffs have failed
to prosecute their case and have persistently
failed to heed to Court's orders even after
receiving a forewarning as to sanctions.
(alterations and emphasis in original) (quoting Estate of Solís-
Rivera v. United States, 993 F.2d 1, 2 (1st Cir. 1993)).
On August 8, 2005, Plaintiffs moved for reconsideration,
but the district court denied the motion and reaffirmed its
previous order dismissing Plaintiffs' case. The district court
entered judgment on November 15, 2005. This appeal followed.
II. Discussion
We review dismissals under both Rule 37(b)(2) and Rule
41(b) for abuse of discretion. Angulo-Alvarez v. Aponte de la
4
Rule 37(b)(2) states in relevant part, "If a party . . . fails
to obey an order to provide or permit discovery, . . . 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: . . . (C) An
order . . . dismissing the action . . . ." Fed. R. Civ. P.
37(b)(2).
5
Rule 41(b) provides, "For failure of the plaintiff to prosecute
or to comply with these rules or any order of court, a defendant
may move for dismissal of an action or of any claim against the
defendant." Fed. R. Civ. P. 41(b).
-6-
Torre, 170 F.3d 246, 251 (1st Cir. 1999). Claims that a court has
abused its discretion in dismissing a case for failure to adhere to
discovery orders or for failure to prosecute have "not received a
sympathetic ear from us." Damiani v. R.I. Hosp., 704 F.2d 12, 17
(1st Cir. 1983) (collecting cases). Nevertheless, we must fairly
balance the court's venerable authority over case management with
the larger concerns of justice, including the strong presumption in
favor of deciding cases on the merits. Torres-Vargas v. Pereira,
431 F.3d 389, 392 (1st Cir. 2005); Batiz Chamorro v. Puerto Rican
Cars, Inc., 304 F.3d 1, 4 (1st Cir. 2002).
The appropriateness of a particular sanction thus depends
on the circumstances of the case. Torres-Vargas, 431 F.3d at 392.
In particular, as the district court noted, "[d]ismissal with
prejudice is a harsh sanction, which should be employed only when
a plaintiff's misconduct has been extreme and only after the
district court has determined that none of the lesser sanctions
available to it would truly be appropriate." Estate of Solís-
Rivera, 993 F.2d at 2 (emphasis, citations, and internal quotation
marks omitted).
In Benítez-García v. González-Vega, a recent case very
similar to the one before us, we reiterated a non-exclusive list of
substantive factors to consider when reviewing sanctions orders:
"the severity of the violation, the legitimacy of the party's
excuse, repetition of violations, the deliberateness vel non of the
-7-
misconduct, mitigating excuses, prejudice to the other side and to
the operations of the court, and the adequacy of lesser sanctions."
468 F.3d 1, 5 (1st Cir. 2006) (quoting Robson v. Hallenbeck, 81
F.3d 1, 2-3 (1st Cir. 1996)). We also noted a procedural dimension
to our review as well, which addresses concerns such as notice,
opportunity to be heard, and the court's explanation for its choice
of sanction. Id. at 5-7; Robson, 81 F.3d at 3.
The first few factors lend themselves to a single
discussion. Without a doubt, the disregard of court orders
qualifies as extreme behavior, and we do not take such insolence
lightly. E.g., Torres-Vargas, 431 F.3d at 393. At the same time,
we have explained that "not . . . every breach of a scheduling
order warrants dismissal." Tower Ventures, Inc. v. City of
Westfield, 296 F.3d 43, 46 (1st Cir. 2002). In fact, we recently
noted that we were unable to find a case in this circuit in which
we had upheld a dismissal with prejudice based on a single instance
of noncompliance with a discovery order. Benítez-García, 468 F.3d
at 5.
At first glance, the circumstances of this case present
a closer call than we faced in Benítez-García, where we found "no
pattern of the plaintiffs repeatedly flouting court orders." Id.
Here, the plaintiffs have evinced a pattern of delay, which clearly
-- and understandably -- antagonized the district court. They
repeatedly requested, and were granted, extensions and missed
-8-
court- and self-imposed deadlines. The district court also
observed that Plaintiffs had "obstinately" failed to complete their
depositions.
In context, however, the delay was not as severe as the
district court implied. Although the original cut-off date for
discovery was November 1, the district court itself extended the
discovery deadline to January 14 to encourage settlement
negotiations. In order to complete Chantry's deposition,
Plaintiffs first requested and were granted an extension of one
month; their second request for an extension, which was denied,
contemplated a March 15 deadline. If the extension had been
granted, the total delay caused by Plaintiffs in relation to
completing discovery would only have been two months. We tend to
reserve dismissal with prejudice for delays measured in years, see
Cosme Nieves v. Deshler, 826 F.2d 1, 2 (1st Cir. 1987) (collecting
cases), while reversing dismissals for conduct resulting in delays
of merely a few months. Pomales v. Celulares Telefónica, Inc., 342
F.3d 44, 48 (1st Cir. 2003); see also Benítez-García, 468 F.3d at
5.
More importantly, perhaps, Plaintiffs offered legitimate
reasons for their failure to complete their depositions on the
dates initially arranged by Defendants. Chantry also advised both
the court and Defendants that she would have only one morning
during the scheduled deposition dates in October. Although she
-9-
agreed to a date in November to complete the deposition, she
promptly informed Defendants of her inability to do so to.
Furthermore, Chantry attempted on multiple occasions to
comply with the discovery order in question by completing her
deposition via teleconference. The district court's insistence
that Plaintiffs complete their depositions in person in Puerto Rico
seems somewhat inconsistent with the same court's haste to complete
discovery. While we express no opinion on the reasonableness of
the district court's requirement, we note that Plaintiffs made
concrete efforts to comply with the court's discovery orders and
find no evidence of deliberate misconduct.
The prejudice factor also weighs in Plaintiffs' favor.
Both sides contributed to the contentiousness and lethargic pace of
the discovery process. As noted above, the defense was sanctioned
for failing to attend the first scheduling conference. Defendants
were also uncooperative and unresponsive with regard to Plaintiffs'
attempts to comply with the court's schedule. The only prejudice
to Defendants -- or to the court, for that matter -- is their loss
of time, which we explained above was not proportionate to the
sanction imposed. No one has pointed to any reason why the
relatively short delay would affect Defendants' ability to litigate
the case. See Benítez-García, 468 F.3d at 6.
The final substantive factor relevant here is the
adequacy of lesser sanctions, which in this case is inextricably
-10-
related to the procedural dimension of our review. Rule 37(b)
provides the district court with a veritable arsenal of sanctions,
including designating certain facts as established, awarding
attorney's fees, and holding the disobedient party in contempt.
The district court gave no explanation for its conclusion that any
lesser sanction would be inappropriate, see Robson, 81 F.3d at 3
("The presence or absence of an explanation by the district court
may also be a factor [in our review of sanctions]."), and we find
no support for this conclusion in the procedural record. The court
did not attempt to exhaust its milder options, nor did it first
warn Plaintiffs that they might face dismissal with prejudice. HMG
Property Investors, Inc. v. Parque Indus. Río Cañas, Inc., 847 F.2d
908, 918 (1st Cir. 1988) ("[T]he law is well established in this
circuit that where a noncompliant litigant has manifested a
disregard for orders of the court and been suitably forewarned of
the consequences of continued intransigence, a trial judge need not
first exhaust milder sanctions before resorting to dismissal.").
Although prior notice is not a prerequisite to dismissal
with prejudice, it is an important consideration. See Robson, 81
F.3d at 3 ("[C]ounsel's disregard of a prior warning from the court
exacerbates the offense, and the lack of warning sometimes
mitigates it."). Here, the parties were forewarned in the initial
scheduling order that their obstinacy could result in sanctions.
The district court again specifically warned Plaintiffs that it
-11-
would not hesitate to impose sanctions for noncompliance with its
order scheduling deposition dates. This latter warning, however,
occurred in the context of denying attorney's fees to Defendants in
relation to their motion to compel Plaintiffs' depositions.
Despite these warnings, Plaintiffs could not have had realistic
notice that they faced the harsh sanction of dismissal with
prejudice. As discussed above, they attempted to comply with
court-ordered deadlines and their intransigence had otherwise
minimal consequences to Defendants and the court.
III. Conclusion
While we do not condone the disregard of a court order in
this or any case, we must also act to protect the fairness of the
judicial process. In this case, we are compelled to conclude that
the district court abused its discretion in dismissing the
Plaintiffs' case with prejudice. Accordingly, we need not reach
Plaintiffs' second argument regarding the dismissal against all
plaintiffs for one plaintiff's misconduct.
For the reasons stated above, we reverse the district
court's dismissal and remand for further proceedings. We express
no opinion regarding otherwise appropriate sanctions for
Plaintiffs' violation of the court's prior discovery orders. We
further note that Plaintiffs have now been suitably warned of the
range of sanctions available to the district court should they
-12-
disregard the court's authority to manage its schedule in the
future.
Reversed.
-13-