
USCA1 Opinion

	




          April 5, 1995         [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-2169                              BENJAMIN HERNANDEZ, ET AL.,                               Plaintiffs, Appellants,                                          v.                            JOSE HERNANDEZ-COLON, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                          Selya and Boudin, Circuit Judges.                                             ______________                                 ____________________            Peter John Porrata on brief for appellants.            __________________                                 ____________________                                 ____________________                      Per   Curiam.      Plaintiffs-appellants   Benjamin                      ____________            Hernandez and  Liduvina  Silva appeal  the  district  court's            denial of their  motion pursuant  to Fed. R.  Civ. P.  60(b),            seeking relief from the court's sua sponte dismissal of their                                            ___ ______            complaint for failure  to prosecute pursuant to  Fed. R. Civ.            P.  41(b).  We reverse and  remand for proceedings consistent            with this opinion.                      As the district  court did  not provide  otherwise,            its  dismissal was  with prejudice  and on  the merits.   See                                                                      ___            LeBeau  v. Taco Bell, Inc., 892 F.2d 605, 607 (7th Cir. 1989)            ______     _______________            (dismissal  for want  of prosecution  was  on the  merits and            "with prejudice" where judgment  did not "otherwise  state");            Nagle v. Lee,  807 F.2d  435, 442-43 (5th  Cir. 1987)  (where            _____    ___            judgment did not state whether it was without prejudice, Rule            41(b)  requires  court  to  treat  dismissal  as  being  with            prejudice and on the merits).                      We  review dismissals  pursuant  to Rule  41(b) for            abuse  of discretion.  Pinero Capo  v. United States,  7 F.3d                                   ___________     _____________            283,  284  (1st  Cir.  1993).     We  normally  respect,  and            encourage,  the efforts  of district  courts to  manage their            dockets decisively.  Still,  in this instance, the unrebutted            information in the record  indicates that the plaintiffs were            prosecuting their  case and had  not disregarded any  rule or            order.   Although  this may not  have been clear  at the time            that the district court dismissed the  action sua sponte, the                                                          ___ ______            facts were brought out on the Rule 60(b) motion.                      Only  91  days passed  between  the  filing of  the            complaint  and   its  dismissal   by   the  district   court.            Plaintiffs had not disobeyed any  court orders or ignored any            warnings, since none had been issued. Compare Pinero  Capo, 7                                                  _______ ____________            F.3d at 284 (affirming  Rule 41(b) dismissal where appellants            had  repeatedly  violated  discovery  orders   despite  clear            warnings that  dismissal would result and the court had first            imposed lesser  sanctions).  Nor had  appellants violated any            procedural  rules.    Although  plaintiffs  failed  to  serve            defendants during  that 91-day period,  Fed. R. Civ.  P. 4(m)            and  Local Rule 313.1(A) permit service to be made within 120            days  of the filing of a complaint. Cf. Jardines Bacata, Ltd.                                                ___ _____________________            v. Diaz-Marquez, 878 F.2d 1555, 1560 (1st Cir. 1989) (holding               ____________            that  it was an abuse  of discretion to  dismiss case against            certain defendants  for lack of  prosecution where plaintiffs            had complied with D.P.R.L.R. 313.1(B)).                      This  case is not before us on direct appeal of the            dismissal  order, however.  It is an appeal from the district            court's denial of plaintiffs' Rule  60(b) motion.  Rule 60(b)            provides, in relevant part, as follows:                      On motion  and  upon such  terms  as  are                      just, the  court may  relieve a  party or                      party's legal representative from a final                      judgment,  order  or  proceeding for  the                      following   reasons:       (1)   mistake,                                         -3-                      inadvertence,   surprise,   or  excusable                      neglect . . . .            We  review  denials  of  Rule  60(b)  motions  for  abuse  of            discretion.  de la Torre v. Continental Ins. Co., 15 F.3d 12,                         ___________    ____________________            14  (1st Cir.  1994).    "[T]he  trial  court's  exercise  of            discretion  must be  colored by  a recognition  that, because            Rule 60(b)  is a vehicle for  'extraordinary relief,' motions            invoking the  rule should be granted  'only under exceptional            circumstances.'" Id. (citations omitted).                               ___                      Although  plaintiffs failed to  specify the section            of Rule 60(b)  upon which  they relied, it  is apparent  that            they  sought  relief  for  the  reason  of  their  "excusable            neglect"  of  their case.   The  Rule  60 motion  referred to            "personal problems" between appellants (who are married) that            had  hampered  their   ability  to  communicate   with  their            attorney,   leading  to  their   attorney's  withdrawal  and,            ultimately, to the dismissal of  the complaint for failure to            prosecute.    Plaintiffs  also  stated in  their  Rule  60(b)            motion,  which  was  filed  by  the  same  attorney  who  had            previously withdrawn, that they  had begun discovery and that            the  delay in serving the  summonses resulted from a tactical            decision to take depositions before completing service.                      Ordinarily, we do not look with favor on the use of            a Rule 60(b)  motion to perform the office  of a motion under            Rule 59(e), which is  subject to a 10-day limitation.  On the            other  hand, the  dismissal in  this case  was without  prior                                         -4-            warning  and  followed  immediately  upon the  heels  of  the            withdrawal  by  plaintiffs'  attorney.    Nor  is  there  any            evidence of prejudice  from the  delay.  Under  all of  these            circumstances, we conclude that  the Rule 60(b) motion should            have been granted.  See Carter v. United States, 780 F.2d 925                                ___ ______    _____________            (11th  Cir.  1986) (reversing  denial  of  Rule 60(b)  motion            seeking  relief  from  Rule  41(b)  dismissal  under  similar            circumstances);  see also  Link v.  Wabash Railroad  Co., 370                             ___ ____  ____     ____________________            U.S. 626, 632 (1962) (noting that the lack of prior notice of            Rule  41(b)  dismissal for  lack of  prosecution is  "of less            consequence"   given  "the  escape  hatch  provided  by  Rule            60(b).")                      We intend  no criticism of the  able district judge            who, at the time of the dismissal, could easily have believed            that  the  case  was  not  being  seriously  pursued  by  the            plaintiffs.    But in  light  of  the subsequent  information            provided, we  do  not think  that  the dismissal  can  stand.            Plaintiffs are now on notice that they must pursue their case            seriously and without further delay.                      For the  foregoing  reasons, the  district  court's            denial of the Rule  60(b) motion is reversed and  the case is                                                ________            remanded  to  the district  court for  proceedings consistent            ________            with this opinion.                                         -5-
