United States Court of Appeals
For the First Circuit
No. 07-1026
JAMES G. MALLOY, ET AL.,
Plaintiffs, Appellants,
v.
WM SPECIALTY MORTGAGE LLC, ET AL.,
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,
Selya, Senior Circuit Judge,
and Lipez, Circuit Judge.
Laird J. Heal on brief for appellants.
Andrew C. Glass, R. Bruce Allensworth, Phoebe S. Winder,
Gregory N. Blase and Kirkpatrick & Lockhart Preston Gates Ellis
LLP, on brief for appellees Ameriquest Mortgage Company and WM
Specialty Mortgage LLC.
Mark R. Freitas, George C. Rockas and Wilson, Elser,
Moskowitz, Edelman & Dicker LLP, on brief for appellee Daniel J.
Nigro, Esq.
January 7, 2008
Per Curiam. This is an appeal from the district court's
dismissal of a civil case, with prejudice, based on plaintiffs'
failure to respond to defendants' discovery requests. In addition
to the propriety of that sanction, the appeal also presents a
threshold issue of appellate jurisdiction.
The sequence of events relevant to the jurisdictional
issue was as follows: After plaintiffs failed to respond to
defendants' discovery requests, even after being ordered to do so
in response to defendants' motion to compel, defendants moved for
relief under Rule 37(b) of the Federal Rules of Civil Procedure,
including dismissal with prejudice. On November 29, 2006, the
district court granted the above motion, stating as follows:
The plaintiffs have filed no response to this
motion. The moving parties, on the other
hand, have outlined, in their memorandum in
support of the motion, a pattern of
noncompliance by the plaintiffs with their
obligations under the discovery rules of this
court. Accordingly, the court grants the
present motion to the extent that it seeks
dismissal of this action. This order is an
interlocutory one; it will become final on
December 8, 2006, unless, on or before that
date, the plaintiffs show cause why this case
should not be dismissed. If no response to
this order is filed by the plaintiffs by
December 7, 2006, the order will become a
final order of the court without further
action by the court. The clerk shall then
enter judgment for the defendants dismissing
this action. If the plaintiffs respond to
this order on or before December 8, 2006, this
order shall be stayed pending further order of
the court.
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The next day, November 30, 2006, the clerk entered judgment in
defendants' favor. A week later, on December 7, 2006, plaintiffs
moved to vacate the November 30th judgment, arguing that entry of
judgment was premature under the terms of the November 29th order,
that the delay was excusable, that plaintiffs themselves were not
to blame, that defendants were not prejudiced by the delay, and
that dismissal with prejudice was too harsh a sanction. On
December 28, 2006, before the district court had ruled on
plaintiffs' motion to vacate, plaintiffs filed a notice of appeal
from the November 30th judgment "to the extent that the entry of
judgment is a final decree for purposes of appeal." Finally, on
March 5, 2007, the district court denied plaintiffs' motion to
vacate without comment.
Viewing that sequence of events in a practical way, it
appears that the November 29th order was intended to be
interlocutory, that the November 30th judgment of dismissal was
therefore entered prematurely, and that plaintiffs' notice of
appeal from that judgment was also premature because, at the time
of the notice of appeal, a timely motion to vacate the November
30th judgment was pending. However, once the district court denied
the motion to vacate the November 30th judgment (implicitly
treating the motion as a response to its November 29th order to
show cause why the case should not be dismissed and finding it
unpersuasive), the November 30th judgment of dismissal became final
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and appealable. Although the notice of appeal from that judgment
was premature when filed, that notice became effective to appeal
the November 30th judgment when the court denied the motion to
vacate, which was, in essence, a timely1 motion to alter or amend
the judgment. See Fed. R. App. P. 4(a)(4)(B)(i). Accordingly, we
have jurisdiction over this appeal and so turn to the propriety of
the sanction imposed by the district court.
"A district court may dismiss an action for noncompliance
with a discovery order." Benitez-Garcia v. Gonzalez-Vega, 468 F.3d
1, 4 (1st Cir. 2006) (citing Fed. R. Civ. P. 37(b)(2)(C)). "When
a district court invokes this power, our review is for abuse of
discretion." Id. (citing Nat'l Hockey League v. Metro. Hockey
Club, Inc., 427 U.S. 639, 642 (1976) (per curiam)). Where, as
here, the dismissal is with prejudice, we consider a variety of
substantive and procedural factors to determine whether that
ultimate sanction was within the district court's discretion. Id.
at 5. "'Among [the substantive factors] commonly mentioned (this
list is not complete) are the severity of the violation, the
legitimacy of the party's excuse, repetition of violations, the
deliberateness vel non of the misconduct, mitigating excuses,
prejudice to the other side and to the operations of the court, and
the adequacy of lesser sanctions.'" Id. (quoting Robson v.
1
The motion was filed on December 7, 2006, within 10 days of
the November 30th judgment. See Fed. R. Civ. P. 59(e).
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Hallenbeck, 81 F.3d 1, 2-3 (1st Cir. 1996)). As to procedure, we
consider whether the offending party was given sufficient notice
and opportunity to explain its noncompliance or argue for a lesser
penalty. Id. at 7.
Here, the violation was relatively severe. By the time
the dismissal became final on March 5, 2007, plaintiffs' discovery
responses were more than seven months overdue under the applicable
rules and more than five months overdue under the court's order
granting defendant Ameriquest's motion to compel. Compare Torres-
Vargas v. Pereira, 431 F.3d 389, 393 (1st Cir. 2005) (finding a
party's disregard of a court order to be "a paradigmatic example of
extreme misconduct"), with Benitez-Garcia, 468 F.3d at 6-7 (finding
that missing discovery deadlines by four months or less, absent a
motion to compel or court order, was insufficiently egregious to
warrant dismissal with prejudice). Nor was there any indication
that, absent dismissal, the responses would have been promptly
provided. The violation was also part of a broader pattern of
delay. Plaintiffs did not provide their initial disclosures within
the time agreed to by the parties and eventually did so, three
weeks late, only after being reminded by one of the parties that
the disclosures were overdue. They also failed to respond to
another defendant's discovery requests until ordered to do so. And
a third defendant's motion to compel overdue responses was pending
at the time the case was dismissed.
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Perhaps most significant, plaintiffs proffered no
legitimate excuse for the delay. Rather, plaintiffs' counsel
attributed the delay to his inexperience practicing law, the
incompetence of his support staff, and his own deliberate decision
to direct his attention to cases of paying clients instead of this
pro bono matter. Such excuses are legally insufficient. Young v.
Gordon, 330 F.3d 76, 82 (1st Cir. 2003); In re Power Recovery Sys.,
Inc., 950 F.2d 798, 801 n.8 (1st Cir. 1991).
Plaintiffs' passing comment that they themselves were
blameless for the delay and therefore should not be punished by
dismissal of their claims is unavailing. Even if we were to
consider this perfunctory argument, but see United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (deeming such arguments
waived), it would fail. This circuit has "consistently 'turned a
deaf ear to the plea that the sins of the attorney should not be
visited upon the client.'"2 KPS & Assocs., Inc. v. Designs By FMC,
Inc., 318 F.3d 1, 16 (1st Cir. 2003) (quoting Farm Constr. Servs.,
Inc. v. Fudge, 831 F.2d 18, 21 (1st Cir. 1987)).
Although the prejudice to defendants appears relatively
slight, that factor, standing alone, is not dispositive. Even
without prejudice to the defendants, dismissal may still be
2
This is not to say that sanctions against counsel himself
would have been inappropriate here. See Fed. R. App. P. 37(b)(2)
(authorizing sanctions against counsel). That question is not
before us.
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warranted to further "the judiciary's strong institutional interest
in ensuring that litigants honor court orders." Tower Ventures,
Inc. v. City of Westfield, 296 F.3d 43, 47 (1st Cir. 2002).
Moreover, any lack of prejudice here is outweighed by the other
factors already discussed.
As to the adequacy of lesser sanctions, our review is
highly deferential to the district court's on-the-scene judgment.
Young, 330 F.3d at 81. Although the district court did not
expressly consider lesser alternatives, none was suggested by the
plaintiffs. And the court's implicit reasons for choosing
dismissal with prejudice can be inferred from defendants' arguments
in opposition to plaintiffs' motion to vacate, which the district
court implicitly adopted. Cf. United States v. Jiménez-Beltre, 440
F.3d 514, 519 (1st Cir. 2006) (en banc) (making such inferences in
the criminal sentencing context), cert. denied, 127 S. Ct. 928
(2007). Those arguments--that a lesser sanction would have been
ineffective--are well-founded. Even after the court warned
plaintiffs that dismissal was imminent, no discovery responses were
provided in the three months that passed before the motion to
vacate was denied and the dismissal became final. Indeed, rather
than turn his full attention to providing such responses,
plaintiffs' counsel took on a new criminal case pro bono. Although
plaintiffs' counsel asked the court to permit plaintiffs to obtain
substitute counsel, there is no evidence of any attempt to do so.
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Under these circumstances, we see no abuse of discretion in the
district court's choice of sanction.
As to procedural considerations, plaintiffs had ample
notice of the prospect of dismissal and opportunity to offer
excuses for their delay or to advocate for lesser sanctions.
Defendants' motion for sanctions expressly sought dismissal with
prejudice, yet plaintiffs filed no opposition to the motion in
general or to that sanction in particular. The district court
noted the lack of opposition to the motion but gave plaintiffs a
further opportunity to show cause why the case should not be
dismissed. Although a judgment of dismissal was mistakenly entered
before the time for responding to the show cause order had expired,
plaintiffs did advance their excuses for delay and arguments
against dismissal in a motion to vacate that judgment, which the
court had under advisement for several months before denying it.
This case is therefore readily distinguishable from those where the
sanctioned party had no notice of the potential dismissal or
opportunity to oppose it. Cf. Malot v. Dorado Beach Cottages
Assocs., 478 F.3d 40, 45 (1st Cir. 2007) (court dismissed the case
without warning that it was considering that sanction); Benitez-
Garcia, 468 F.3d at 3-4, 6-7 (court dismissed the case before
plaintiff had an opportunity to respond to defendants' motion to
dismiss and denied plaintiffs' motion for reconsideration on
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technical grounds the day after it was filed without giving them an
opportunity to file a conforming motion).
Finding no substantive or procedural abuse of discretion,
we affirm the district court's judgment. See 1st Cir. R. 27.0(c).
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