      [NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

         United States Court of Appeals
                    For the First Circuit


No. 00-2361

                     RICHARD MAX STRAHAN,

                    Plaintiff, Appellant,

                              v.

                NEW ENGLAND AQUARIUM, ET AL.,

                    Defendants, Appellees.
                     ____________________

No. 00-2363

                     RICHARD MAX STRAHAN,

                    Plaintiff, Appellant,

                              v.

                    ROBERT HURST, ET AL.,

                    Defendants, Appellees.


        APPEALS FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

       [Hon. Douglas P. Woodlock, U.S. District Judge]



                            Before

                      Boudin, Chief Judge,
               Selya and Lipez, Circuit Judges.
     Richard Max Strahan on brief pro se.
     Edward T. Patten on brief for appellee Dolphin Fleet of
Provincetown, Inc.
     Ansel B. Chaplin and Chaplin & Chaplin on brief for appellee
Center for Coastal Studies.
     Joseph F. Shea and Nutter, McClennen & Fish on brief for
appellee New England Aquarium.
     John C. Cruden, Acting Assistant Attorney General, Samuel
D. Rauch and Mark R. Haag, Attorneys, Department of Justice, and
Francis H. Esposito, Office of the Chief Counsel, United States
Coast Guard, on brief for Federal appellees.



                        January 15, 2002
          Per Curiam. In these consolidated pro se appeals,

Richard Max Strahan challenges the summary dismissal of

separate lawsuits alleging violation of § 9 of the Endangered

Species Act ("ESA"), 16 U.S.C. § 1538(a).           The lawsuits were

brought on behalf of listed species of whales, and in one

case, also on behalf of listed species of sea turtles.            For

the following reasons, we affirm.

          Strahan v.      New England Aquarium challenges the

practices of whale watch vessels operated by the New England

Aquarium and the Dolphin Fleet of Provincetown, Inc. Strahan

v. Hurst challenges United States Coast Guard operations.

In both cases, defendants filed motions for summary judgment

and   Strahan    sought   extensions    of   time   for   responding.

Roughly three months after the last extension expired, and

in the absence of any further filings by Strahan (must less

any   document    supporting   an      opposition    to   defendants'

motions), the district court dismissed the two suits for lack

of prosecution under Fed. R. Civ. P. 41(b) and on the

alternative ground that the motions for summary judgment were

well-founded.

            A summary judgment motion cannot be granted based

on an adverse party's failure to respond.            See Carmona v.

Toledo, 215 F.3d 134 n.9 (1st Cir. 2000); Fed. R. Civ. P.
56(e) (if adverse party fails to respond, "summary judgment,

if   appropriate,   shall   be    entered")     (emphasis   added).

However, there is some authority that, notwithstanding this

rule, a case can be dismissed at the summary judgment stage

under Rule 41(b) if the court determines that the plaintiff's

failure to respond constitutes a failure to prosecute.         See,

e.g., Custer v. Pan American Life Ins. Co., 12 F.3d 410, 415

(4th Cir. 1993); Lediju v. New York City Dep't of Sanitation,

173 F.R.D. 105, 110 (S.D.N.Y. 1997).

           In the instant case, Strahan's failure to meet the

extended deadlines for filing oppositions fell against a

recent background of missed deadlines and delay on his part.

Contrary to his suggestion, a warning is not an absolute

requirement before dismissal.          See Robson v. Hallenbeck, 81

F.3d 1, 3-4 (1st Cir. 1996).      Strahan had the opportunity to

explain his defaults by way of a motion to reinstate.            He

filed such a motion but did not proffer any valid excuses.



           Arguably, Strahan's conduct rose to the level of a

failure to prosecute under Rule 41(b).         However, we need not

decide whether the dismissals can be upheld on this basis

alone.   The district court did not purport to dismiss the two

cases solely on this ground but rather made an independent


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 determination that summary judgment was warranted.                            Upon

 review   of    the   record,     we,    too,    are   persuaded        that    the

 dismissals were otherwise justified.

               Summary    judgment      was    warranted    in    New    England

 Aquarium based on Strahan's failure to comply with Loc. R.

 56.1, which justified the court in deeming admitted the facts

 presented in the movants' statements of undisputed facts.

 See Ruiz Rivera v. Riley, 209 F.3d 24, 28 (1st Cir. 2000).

 Strahan suggests on appeal, without record citation, that the

 record contains "several scientific studies" sufficient to

 create a material issue of fact.                However, the presence of

 Loc. R. 56.1, requiring Strahan to file a response to guide

 the court, removed any requirement that otherwise might exist

 that the district court ferret through the record before

 ruling on defendants' summary judgment motions.                    See Jaroma

 v. Massey, 873 F.2d 17, 21 (1st Cir. 1989).                     In any event,

 Strahan fails to specifically identify any of these studies

 or explain how they enhance his claims.1

               The   dismissal    in    Hurst    was   warranted        based    on

 Strahan's      failure    to    comply       with   the   sixty-day      notice


    1 We also reject Strahan's suggestion that summary judgment
was improper because he was provided inadequate opportunity for
discovery. Strahan does not articulate what discovery he sought
or needed, and, thus, provides no basis to question the district
court's handling of discovery.

                                        -5-
 requirement    before     filing     suit.   See   16   U.S.C.   §

 1540(g)(2)(A)(i) (providing that a citizen may not bring suit

 under the ESA prior to sixty days after written notice of an

 alleged violation has been given to the Secretary and the

 alleged violator).      Strahan sent his notice of intent to sue

 on March 19, 1998, and the complaint was filed only twenty-

 eight days later.       This court has interpreted the sixty-day

 notice requirement in environmental statute citizen suits

 strictly.    See Water Keeper Alliance v. United States Dep't

 of Defense, 271 F.3d 21, 29 (1st Cir. 2001).2

             Affirmed.




    2We recognize that the notice mailed in Hurst purported to
be a "continuation" of notices sent between 1989 and 1992.
However, in the interim, Strahan litigated Strahan v. Linnon,
94cv11128, involving a substantially identical "takings" claim.
In 1997, Linnon was resolved in the Coast Guard's favor. See
Strahan v. Linnon, 967 F. Supp. 581 (D. Mass. 1997). Hurst is
based, in part, on events that post-date Linnon. However, to
the extent that the second suit could go forward and is not
precluded by the first, new notice and a full sixty-day period
was required.

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