                Not for Publication in West's Federal Reporter

          United States Court of Appeals
                       For the First Circuit

No. 07-2620

                       LUIS M. CORUJO, ET AL.,
                        Plaintiffs, Appellees,

                                     v.

              EUROBANK, SUCCESSOR IN INTEREST TO THE
                    BANK & TRUST OF PUERTO RICO,
                        Defendant, Appellant,
                         ____________________

                     SIRO PÉREZ-OLIVA, ET AL.,
                            Defendants.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF PUERTO RICO
          [Hon. Jaime Pieras, Jr., U.S. District Judge]


                                  Before

                      Boudin, Lipez and Howard,
                           Circuit Judges.



     José F. Sarraga, Eugene F. Hestres-Vélez and Bird Bird &
Hestres, P.S.C., on brief for appellant.
     Rubén T. Nigaglioni, Veronica Ferraiuoli and Antonio
Valiente, Nigaglioni & Ferraiuoli Law Offices, P.S.C., on brief
for appellees.
     Harvey Weiner, Jill M. Brannelly and Peabody & Arnold, LLP,
on brief amici curiae for Calvesbert Law Offices.


                           November 17, 2008
           Per   Curiam.    Defendant,     Eurobank,   appeals   from   the

district   court's    dismissal,   without   prejudice,   of   plaintiffs'

complaint for lack of prosecution.           The dismissal was based on

plaintiffs' failure to file a memorandum prior to the initial

scheduling conference, as required by the district court's initial

scheduling conference order.       On appeal, Eurobank understandably

does not object to the dismissal per se but argues that it should

have been with prejudice, as it had unsuccessfully argued in a

motion to amend the judgment.      A side issue, which turns out to be

irrelevant, is whether the district court had subject matter

jurisdiction.    For the reasons discussed below--essentially, that

the district court did not abuse its discretion in dismissing this

case without, rather than with, prejudice--we summarily affirm.

           Although    Eurobank    alleged    lack   of   subject   matter

jurisdiction in its answer to the complaint, it made no motion to

dismiss the case on that ground, and the district court had no

occasion to consider the issue before it dismissed the case at the

initial scheduling conference.      Regardless of whether the district

court lacked subject matter jurisdiction over plaintiffs' claims,

in the absence of a judicial determination that such jurisdiction

was lacking, the court had the power to "requir[e] those practicing

before [it] to conduct themselves in compliance with the applicable

procedural rules in the interim, and to . . . impose . . .

sanctions in the event of their failure to do so,"               Willy v.


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Coastal Corp., 503 U.S. 131, 139 (1992), at least where, as here,

the sanction "'does not signify a district court's assessment of

the legal merits of the complaint.'"             Id. (quoting Cooter & Gell v.

Hartmarx Corp., 496 U.S. 384, 396 (1992)).

               Therefore, without resolving the question of subject

matter jurisdiction, we turn to the issue of whether dismissing the

case       without,   rather    than    with,   prejudice   was   an    abuse   of

discretion and conclude that it was not.                Our resolution of that

issue results largely from the highly deferential standard of

appellate review that applies.              "Since the district court has

first-line       authority      for    case-management      decisions    and    is

intimately familiar with the ebb and flow of the cases on its

docket, an appellate court should 'step softly' when asked to set

aside a district court's choice of sanctions for the violation of

a case-management order."             Torres v. Puerto Rico, 485 F.3d 5, 10

(1st Cir. 2007).        Even if it would have been within the court's

discretion       to   dismiss    the     case    with   prejudice--a     doubtful

proposition,      given   "no    pattern    of    the   plaintiffs     repeatedly

flouting court orders,"1 Benitez-Garcia v. Gonzalez-Vega, 468 F.3d


       1
      The only instance of noncompliance identified by the district
court was plaintiffs' failure to file a memorandum prior to the
initial scheduling conference, as required by the court's initial
scheduling conference order. Because there is no transcript of the
scheduling conference in the record, and the appellant has not used
the procedures of Rule 10(c) of the Federal Rules of Appellate
Procedure to create a record of that proceeding, we will disregard
the various unsupported representations of the parties and the
amicus as to precisely what transpired there. Bogan v. City of

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1, 5 (1st Cir. 2006); see also Link v. Wabash R.R. Co., 370 U.S.

626, 64 (1962) ("[declining to] decide whether unexplained absence

from a pretrial conference would alone justify a dismissal with

prejudice if the record showed no other evidence of dilatoriness on

the part of the plaintiff")--that would not mean that dismissing it

without prejudice was outside the court's discretion to choose a

less severe sanction.   Cf. Benitez-Garcia, 468 F.3d at 6 (faulting

district court for failing to "consider[] whether a sanction as

severe as dismissal with prejudice was needed or whether other

sanctions might well have sufficed").

           Consequently, we summarily affirm the district court's

judgment and its denial of the motion to amend.       1st Cir. R.

27.0(c).   The motion of amici curiae for leave to participate in

oral argument is denied as moot.




Boston, 489 F.3d 417, 424 (1st Cir. 2007).

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