
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1432                       JOSE ANTONIO PI ERO CAPO, etc., et al.,                               Plaintiffs, Appellants,                                          v.                              UNITED STATES OF AMERICA,                                      Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Raymond L. Acosta, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                  Cyr, Circuit Judge,                                       _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________             Rafael A. Oliveras Lopez for appellants.             ________________________             Maria Hortensia  Rios Gandara, Assistant  United States Attorney,             _____________________________        with whom Charles E. Fitzwilliam, United States Attorney, was on brief                  ______________________        for appellee.                                 ____________________                                   October 20, 1993                                 ____________________                    Cyr, Circuit Judge.   Appellants  brought this  medical                    Cyr, Circuit Judge.                         _____________          malpractice action in  the United States  District Court for  the          District  of Puerto Rico on  April 15, 1991.   Thereafter, appel-          lants repeatedly  violated various discovery-related  orders duly          entered by the district  court.  On November 10,  1992, following          numerous  requests  and  three  unsuccessful  motions  to  compel          discovery, the  appellee moved for sanctions  against appellants,          including the dismissal of all their claims, with prejudice.  See                                                                        ___          Fed. R. Civ. P. 41(b).  On March 15, 1993, almost two years after          its commencement,  the district court dismissed  the action, with          prejudice, due to  appellants' "consistent failure  to diligently          prosecute their claims despite the specific deadlines  set by the          Court to respond to interrogatories and furnish discovery related          to expert witnesses."   Appellants did not move  for reconsidera-          tion, but chose to seek appellate relief.  We affirm.                    We review  Rule 41(b)  dismissals for abuse  of discre-          tion.   Aoude v. Mobil Oil  Corp., 892 F.2d 1115,  1117 (1st Cir.                  _____    ________________          1989).  After careful  consideration of all relevant circumstanc-          es, under  the "open-ended  balancing test" appropriate  in these          matters,  Figueroa Ruiz v. Alegria,  896 F.2d 645,  648 (1st Cir.                    _____________    _______          1990),  we conclude  that the  district court  did not  abuse its          discretion.  We do  so in light of appellants'  repeated failures          to comply  with reasonable discovery requests  and with discovery          orders, notwithstanding the district court's clear warnings  that          dismissal could           result; the unsuccessful efforts by the district court to  assure          compliance by imposing,  in the first instance,  the lesser sanc-          tion  of a $300 fine  against appellants' counsel;  the months of          delay,  and the many motions  and conferences before the district          court,   occasioned  by their  dilatory conduct;  their counsel's          failure either to take  appropriate action in a timely  manner or                                                                         __          to present to the  district court many of the  belated justifica-          tions urged on appeal.  In addition, the justifications belatedly          proffered on appeal, credited at  face value, provide no explana-          tion for the  final two-month delay  (January to March 15,  1993)          during which counsel  concededly was able to  function as counsel          yet  failed  to comply  with  the  district court's  longstanding          discovery  orders.  Finally, even  now counsel offers no explana-          tion for failing to request reconsideration of the district court          dismissal order entered March 15, 1993.                    The  crux of  appellants'  argument on  appeal is  that          their counsel's medical  problems prevented him from  functioning          as a lawyer.   Unfortunately for appellants,  this claim presents          too little, too late, to the  wrong court.  The dilatory behavior          extended  at least  from  February through  November, 1992,  not-          withstanding that the district court warned of possible dismissal          in March and  May, 1992, after  having ordered a  $300 fine as  a          sanction against  appellants' counsel.1  Nevertheless,  not until                                        ____________________               1At  a  status conference  in  August 1992,  the  court also          warned  of the  possible  dismissal of  the claims  of appellants          Maria  de los Angeles and Jose Ivan Pi ero Rivera.  The dismissal          of their claims is no longer challenged.                                          3          December 3, 1992, did appellants' counsel explain to the district          court in an "informational motion" that he had been incapacitated          from October 15 to November 24, 1992.  At best, this would excuse          five  and one-half weeks of  a sustained ten-month  delay, and no          sufficient  reason  is suggested  for  the  failure to  prosecute          during other periods.  The failure to take any  further action in          the  district court after the filing of the December, 1992 infor-          mational motion  is particularly  egregious.  Yet  even crediting          all representations made by  appellants' counsel at oral argument          on appeal, no explanation  has been suggested for the  final two-          month  delay  between January  and  March 15,  1993, or  for  the          failure  to  request  reconsideration  of  the  dismissal  order.          Although  we are not unsympathetic  to appellants' plight in this          case, we  cannot  conclude that  the  district court  abused  its          discretion by  dismissing their claims  by reason of  their coun-          sel's abject failure to prosecute.2                    Affirmed.3                    Affirmed.                    ________                                        ____________________               2In  these egregious  circumstances,  we must  heed our  own          admonition  and  "the teaching  of the  Court  in Link  v. Wabash                                                            ____     ______          Railroad Co., 370  U.S. 626 (1962), that the acts or omissions of          ____________          counsel  are visited upon the client[,]" United States v. One Lot                                                   _____________    _______          of $25,721.00 in Currency,  938 F.2d 1417, 1422 (1st  Cir. 1991);          _________________________          see also  Corchado v.  Puerto Rico  Marine Management,  Inc., 665          ___ ____  ________     _____________________________________          F.2d 410, 413 (1st Cir. 1981), cert. denied, 459 U.S. 826 (1982).                                         ____  ______          Of  course,  this means  that appellants  will  be left  to their          remedies against counsel.               3We  direct the Clerk to  provide the clerk  of the district          court  with a  copy of this  opinion, in  order that  copies (and          Spanish translations) may be mailed directly to each appellant by          the district court.                                          4
