United States Court of Appeals
For the First Circuit
No. 08-1548
MARIA VELÁZQUEZ LINARES,
Plaintiff, Appellant,
v.
UNITED STATES ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, U.S. District Judge]
Before
Lynch, Chief Judge,
Selya and Howard, Circuit Judges.
José M. Casanova Edelmann on brief for appellant.
Lori J. Dym, Chief Counsel, Appellate Division, United States
Postal Service, and Ray E. Donahue, Lead Counsel, on brief for
appellees.
November 10, 2008
SELYA, Circuit Judge. On February 10, 2006, plaintiff-
appellant Maria Velázquez Linares slipped and fell while a patron
at the post office in Cataño, Puerto Rico. Neither the details
surrounding her fall nor the extent of her injuries and damages are
germane to this appeal. Instead, we fast-forward to March 3, 2008,
when the plaintiff sued the United States and others under the
Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680.
The plaintiff duly filed her paper complaint in the
district court. The Clerk issued a notice on March 13 stating that
the case was subject to the electronic case management system.
That is relevant because the court had in place a standing order —
Standing Order No. 1 — providing in pertinent part that, in such
cases, "parties shall promptly provide the Clerk with electronic
copies of all documents previously provided in paper form." The
plaintiff did not furnish an electronic copy of her complaint. On
March 24 — three weeks after the commencement of the suit — the
district court, acting sua sponte, dismissed the action without
prejudice. The court at the same time fined plaintiff's counsel
$150 as a sanction.
The plaintiff filed the complaint electronically five
days later and moved for reconsideration. In that motion, her
counsel explained that electronic filing had not been accomplished
earlier because of a malfunctioning computer in his law office.
Counsel attached a statement from a computer technician who
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verified the malfunction and related that he had been hired to
repair the defect on March 22.
The district court denied the motion for reconsideration
without comment on April 2. The next day, the plaintiff docketed
a notice of appeal. The district court responded by issuing a nunc
pro tunc electronic order noting that "even if counsel's computer
malfunctioned, he waited too long to cure his noncompliance with
Standing Order No. 1."
We need not tarry. When a trial court is faced with a
violation of a court order, it may choose from a "broad universe of
possible sanctions." Tower Ventures, Inc. v. City of Westfield,
296 F.3d 43, 46 (1st Cir. 2002). Each case is sui generis. Thus,
in making the choice of a condign sanction, the court must give
individualized consideration to the particular circumstances of the
case. Id. We review the court's order for abuse of discretion.
Id.
Dismissal is among the most severe of sanctions, and it
should not be imposed without good reason. See Young v. Gordon,
330 F.3d 76, 81 (1st Cir. 2003) (explaining that "dismissal should
not be viewed either as a sanction of first resort or as an
automatic penalty for every failure to abide by a court order").
The district court in this case believed that dismissal was
appropriate because the plaintiff had transgressed Standing Order
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No. 1. Under the totality of the circumstances, we find that
conclusion problematic.
Standing Order No. 1 does not provide a set time within
which a party must furnish an electronic copy of a pleading
previously filed in paper form. The order merely recites that the
electronic copy shall be supplied "promptly." That term has a
protean quality; what is "prompt" in one person's mind may not be
"prompt" in another's, and what is "prompt" in one set of
circumstances may be laggardly in a different set of circumstances.
Given this uncertainty, we think it ordinarily would require the
passage of more time than elapsed here to warrant sua sponte
dismissal, without prior notice, on such a ground. See Velázquez-
Rivera v. Sea-Land Serv., Inc., 920 F.2d 1072, 1076 (1st Cir.
1990); cf. Rosario-Díaz v. González, 140 F.3d 312, 315 (1st Cir.
1998) (noting that "litigants have an unflagging duty to comply
with clearly communicated case-management orders") (emphasis
supplied).
The district court, of course, had two easily available
alternatives. First, the court as an institution could have used
a fixed time parameter in place of "promptly." Second, the court
in this case could have called the plaintiff's attention to
Standing Order No. 1, demanded compliance within a specified time
frame, and then taken action if that demand had gone unrequited.
See, e.g., Chamorro v. Puerto Rican Cars, Inc., 304 F.3d 1, 4-5
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(1st Cir. 2002) (approving use of show-cause order in analogous
circumstance). Here, however, the record on appeal contains no
indication that the court afforded any forewarning of this sort to
the plaintiff.1
Were there aggravating circumstances, the situation might
be more fluid. See, e.g., Cósme Nieves v. Deshler, 826 F.2d 1, 2
(1st Cir. 1987). But in this case, the record reflects none. For
aught that appears, plaintiff's counsel is a first-time offender;
there is not the slightest whiff of bad faith, contumacious
conduct, or habitual procrastination on his part. Moreover, he
presented a plausible justification for the failure to furnish an
electronic copy of the complaint more celeritously — and the
district court did not question the truth of this explanation.
Finally, the defendants have not made any showing of
prejudice. Indeed, their main argument seems to be that the
dismissal order should not be treated seriously because it operated
without prejudice. See Appellees' Br. at 7. That argument
overlooks the inevitable costs associated with reinstituting an
1
The district court has published a Manual for Civil and
Criminal Cases, Administrative Procedure for Filing, Signing and
Verifying Pleadings and Papers by Electronic Means in the United
States District Court for the District of Puerto Rico, Rev. July
26, 2006 (the Manual). With respect to electronic filing, section
II.A.2 of the Manual states that if a complaint is filed in paper
form only, the Clerk shall notify the filer that she has twenty-
four hours to file the complaint electronically. If no electronic
copy is then filed, the Clerk shall issue a second notice. Id.
There is no indication on the docket that any such notices were
transmitted in this case.
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action as well as the court's imposition of a monetary sanction to
accompany the dismissal.
We need go no further. In the peculiar circumstances of
this case, we hold that the district court read the standing order
too inflexibly and acted outside the realm of its discretion in
dismissing the action and imposing a monetary sanction without
first affording the plaintiff notice and a brief opportunity to
cure. See Vinci v. Consol. Rail Corp., 927 F.2d 287, 288 (6th Cir.
2001) (stating that although a standing order may have put
plaintiff on notice that dismissal could be imposed for failure to
follow a court order, the "mechanical" dismissal of an action
because the attorney missed a required filing date was an abuse of
discretion absent notice of the deficiency). Accordingly, we
vacate the order appealed from and remand for further proceedings
consistent with this opinion.
The order for dismissal and for sanctions is reversed.
The case is reinstated. All parties shall bear their own costs.
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