          United States Court of Appeals
                     For the First Circuit


No. 11-1747

                    ERIN HOOPER-HAAS ET AL.,

                     Plaintiffs, Appellees,

                               v.

                     ZIEGLER HOLDINGS, LLC,

                     Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF PUERTO RICO

         [Hon. José Antonio Fusté, U.S. District Judge]


                             Before

                       Lynch, Chief Judge,
                Selya and Lipez, Circuit Judges.



     D. Jeffrey Ireland and Faruki Ireland & Cox P.L.L. on brief
for appellant.
     Gabriel I. Peñagarícano-Soler on brief for appellees.



                        August 10, 2012
            SELYA, Circuit Judge.       This is an appeal from the entry

of   a    default   and     a   subsequent    judgment.       After   careful

consideration,      we    conclude   that    the   court   acted   within   its

discretion when it entered the default as a sanction for persistent

noncompliance with court-ordered deadlines.                We also conclude,

however, that the court erred in granting relief beyond the scope

of relief to which the plaintiffs were entitled.            Consequently, we

affirm in part, vacate in part, and remand for the entry of a

revised judgment.

I.   BACKGROUND

            This contretemps grows out of a failed real estate

transaction.    Early in 2008, defendant-appellant Ziegler Holdings,

LLC, purchased the right to civil possession of a beachfront

residence (the Property) in Vieques, Puerto Rico, from plaintiffs-

appellees Erin Hooper-Haas, Larry Alex Haas, and Craig Howland-

Hooper.1   The precise details of the sale are largely irrelevant to

this appeal; what is pertinent here is that the appellant agreed to

make monthly payments over the course of four years, culminating in

a final balloon payment; maintain insurance on the Property; and

indemnify the appellees for attorneys' fees of $5,000 in the event

of an enforcement action.

      1
       Civil possession (posesión civil) is a type of property
interest, which refers to the possessory interest an individual may
hold where title in a parcel of real estate is vested in another
(in this case the municipality of Vieques). P.R. Laws Ann. tit.
31, § 1421.

                                      -2-
           For a time, matters progressed apace.     Then, in June of

2010, the appellant stopped making monthly payments, asserting that

the appellees had misrepresented various aspects of the Property.

The appellees responded by suing the appellant in a Puerto Rico

court.   In their complaint, they prayed for a declaration that the

sale was void, the return of the possessory interest in the

Property, and $5,000 in attorneys' fees.           Invoking diversity

jurisdiction, the appellant removed the case to the United States

District Court for the District of Puerto Rico.        See 28 U.S.C.

§§ 1332(a)(1), 1441. The appellant then answered the complaint and

counterclaimed for breach of contract.

           The district court issued an initial scheduling order on

September 20, 2010.   See Fed. R. Civ. P. 16(b).   The court directed

the submission of pretrial memoranda by November 2 and scheduled a

pretrial conference for November 9.    The scheduling order required

the parties, inter alia, to meet, confer, and exchange various

discovery materials prior to the anticipated conference. The court

warned that any failure to comply with the terms of the scheduling

order would result in "stiff penalties, including but not limited

to the entry of default."

           The appellant paid no apparent heed to the court's

admonition.   It failed to submit its pretrial memorandum on or

before November 2.    Moreover, it frustrated the appellees' efforts

to have the parties meet and confer regarding discovery prior to


                                 -3-
the November 9 conference, and it did not disclose the materials

specified in the court's order within the prescribed timeframe.

          At the November 9 conference, the appellant's lawyers

advised the court that they had been unable to reach their client

for some time.2   The court rebuked the appellant for missing the

various deadlines and warned that it "will not tolerate . . . non-

compliance" with its orders. Despite its displeasure, however, the

court granted the appellant "a final opportunity to litigate,"

reset the deadline for filing the pretrial memorandum to December

8, and recessed the pretrial conference to December 15.   The court

explicitly warned that it would mete out sanctions for any failure

to comply with this new timetable.

          December 8 came and went without any sign of either the

appellant's pretrial memorandum or its required disclosures.   The

December 15 conference was therefore aborted, and the appellees

moved, inter alia, for the entry of default as a sanction.     The

appellant did not file an opposition to this motion.

          On January 13, 2011, the district court granted the

motion, struck the answer and counterclaim, and entered a default.



     2
       Citing this inability, counsel had moved to withdraw on
September 30.     The court had denied the motion because the
appellant had no other counsel of record, and limited liability
companies, like corporations, cannot litigate pro se. See Rowland
v. Cal. Men's Colony, Unit II Men's Advisory Council, 506 U.S. 194,
201-02 (1993); United States v. Hagerman, 545 F.3d 579, 581-82 (7th
Cir. 2008); Instituto de Educacion Universal Corp. v. U.S. Dep't of
Educ., 209 F.3d 18, 22 (1st Cir. 2000).

                               -4-
See Fed. R. Civ. P. 37(b)(2)(A)(vi), 54(a). The court specifically

found the appellant's misconduct to be willful.               Hooper-Haas v.

Ziegler Holdings, LLC, No. 10-1712, 2011 WL 147904, at *4 (D.P.R.

Jan. 13, 2011).         It concluded that the appellant's repeated

failures to respond to the discovery requests and to comply with

the court's scheduling order were efforts "to unjustifiably delay

the proceedings."       Id.

            Five   days   later,   the    appellant,    represented   by   new

counsel, sought reconsideration of the entry of default. The court

summarily denied this motion.

            In    the   ordinary   course,    a   defaulted    defendant     is

precluded from further contesting the factual averments in the

complaint giving rise to liability, but such a defendant may

nonetheless contest the relief sought.             See Bonilla v. Trebol

Motors Corp., 150 F.3d 77, 82 (1st Cir. 1998).             On May 17, 2011,

the district court convened an evidentiary hearing for the purpose

of determining what relief was appropriate.            The court allowed the

appellant to be heard on the question of relief.               Following the

hearing, the court voided the sale and granted the appellees

possession of the Property.        See Hooper-Haas v. Ziegler Holdings,

LLC, No. 10-1712, 2011 WL 2134377, at *5 (D.P.R. May 26, 2011).             It

also awarded damages consisting of the balance of the sale price

($110,546.05),     accrued    interest     ($6,909.13),    attorneys'      fees

($5,000),   and    reimbursement    for    insurance     premiums   that    the


                                     -5-
appellant had failed to pay ($3,316).             Id.   This timely appeal

ensued.

II.   ANALYSIS

            In this court, the appellant challenges both the entry of

the default and the relief granted.            We bifurcate our discussion

accordingly.

                         A.    Entry of Default.

            We review a district court's entry of a default sanction

for abuse of discretion.       Companion Health Servs., Inc. v. Kurtz,

675 F.3d 75, 83 (1st Cir. 2012) (citing Crispin-Taveras v. Mun'y of

Carolina, 647 F.3d 1, 7 (1st Cir. 2011)).           An abuse of discretion

"occurs when a material factor deserving significant weight is

ignored, when an improper factor is relied upon, or when all proper

and no improper factors are assessed, but the court makes a serious

mistake in weighing them."         Indep. Oil & Chem. Workers of Quincy,

Inc. v. Procter & Gamble Mfg. Co., 864 F.2d 927, 929 (1st Cir.

1988).    Within this rubric, we assay the district court's factual

findings for clear error.          Indigo Am., Inc. v. Big Impressions,

LLC, 597 F.3d 1, 3 (1st Cir. 2010).               Conclusions of law are

appraised   de   novo,   and   a    material    error   of    law   invariably

constitutes an abuse of discretion.         Jensen v. Phillips Screw Co.,

546 F.3d 59, 64 (1st Cir. 2008).

            We have said before, and today reaffirm, that a party who

flouts a court order does so at its own peril.               See, e.g., Tower


                                      -6-
Ventures, Inc. v. City of Westfield, 296 F.3d 43, 45-46 (1st Cir.

2002). A court faced with a disobedient litigant has wide latitude

to choose from among an armamentarium of available sanctions.                See

Jones v. Winnepesaukee Realty, 990 F.2d 1, 5 (1st Cir. 1993).                The

entry of a default is one of these sanctions.              Default is strong

medicine, see       Crispin-Taveras, 647 F.3d at 7, and should be

prescribed only in egregious cases, see John's Insulation, Inc. v.

L. Addison & Assocs., Inc., 156 F.3d 101, 109 (1st Cir. 1998).

              Be that as it may, default may be a condign sanction when

a court is confronted with a persistently noncompliant litigant.

In an appropriate case, the availability of this sanction may well

"play[]   a    constructive     role   in    maintaining   the    orderly    and

efficient      administration    of    justice."       Remexcel    Managerial

Consultants, Inc. v. Arlequín, 583 F.3d 45, 51 (1st Cir. 2009)

(internal quotation marks omitted) (quoting KPS & Assocs., Inc. v.

Designs by FMC, Inc., 318 F.3d 1, 13 (1st Cir. 2003)).

              The   appropriateness    of    a   default   sanction   must   be

evaluated on a case by case basis.           See Young v. Gordon, 330 F.3d

76, 81 (1st Cir. 2003). This evaluation implicates the totality of

the circumstances.       Relevant factors include, but are not limited

to, the nature of the misconduct, its repetition (or lack thereof),

its degree of deliberateness, the extent to which the offender had

fair warning of the possible consequences of misconduct, the

availability vel non of an opportunity to offer an explanation or


                                       -7-
to plead for leniency, the legitimacy of any proffered excuse, any

other aggravating or mitigating circumstances, the presence or

absence of prejudice to the other party, the degree of interference

with the functioning of the court, and the adequacy of lesser

sanctions. See Vallejo v. Santini-Padilla, 607 F.3d 1, 8 (1st Cir.

2010); Robson v. Hallenbeck, 81 F.3d 1, 2-3 (1st Cir. 1996).                   In

the last analysis, these factors require a court to balance the

desirability    of   resolving     cases   on    the    merits    against     the

importance    of   "the    orderly   and   efficient      administration       of

justice."    See Remexcel, 583 F.3d at 51 (internal quotation marks

omitted) (quoting KPS & Assocs., Inc. v. Designs by FMC, Inc., 318

F.3d 1, 13 (1st Cir. 2003)).

             In the case at hand, the relevant factors predominate

heavily in favor of the district court's action.                      The court

repeatedly warned the parties that failure to comply with its

scheduling     orders     would   result   in    severe    sanctions.          It

specifically    mentioned    default.      The   appellant       ignored    those

warnings and persistently flouted deadlines set by the court. This

"disobedience of court orders, in and of itself, constitutes

extreme   misconduct."       Tower   Ventures,    296    F.3d    at   46.     The

egregiousness of the appellant's misconduct is underscored both by

its repetitive nature and by the district court's supportable

finding that the appellant had acted willfully in ignoring a series




                                     -8-
of deadlines.       See Global NAPs, Inc. v. Verizon New Eng. Inc., 603

F.3d 71, 94 (1st Cir. 2010).

            Here,     moreover,    the   district       court    did    not    act

impulsively    or    in   haste.    It   provided   a    free    pass    for   the

appellant's original noncompliance but warned the appellant that

further noncompliance would have dire consequences.              The appellant

did not learn any lesson from this second chance; it simply

repeated its earlier misconduct and disregarded the new set of

deadlines. Given the commission of these serial infractions in the

face   of   pointed    warnings    and   the   absence    of    any    compelling

explanation for the appellant's recalcitrance, we think that it was

reasonable for the district court to conclude — as it did — that

the admittedly strong interest in deciding cases on the merits was

overborne by the crushing weight of aggravating factors.

            In an effort to blunt the force of this reasoning, the

appellant musters a battalion of counter-arguments.               None of these

counter-arguments is persuasive.

            To begin, the appellant contends that the default should

be set aside because lesser sanctions were not tried.                          This

contention is unavailing: where, as here, the sanction fits the

misconduct, a trial court is not obliged to withhold the sanction

until it has first slapped the offender on the wrist.                          See

Companion Health, 675 F.3d at 84; cf. Damiani v. R.I. Hosp., 704

F.2d 12, 15 (1st Cir. 1983) (stating that "[t]here is nothing in


                                     -9-
[Rule 37(b)] that states or suggests that the sanction of dismissal

can be used only after all the other sanctions have been considered

or   tried").     In   this   instance,    the   sanction   of   default   is

proportionate to the egregious misconduct that provoked it.

             The appellant's reliance on our decision in Benitez-

Garcia v. Gonzalez-Vega, 468 F.3d 1 (1st Cir. 2006), is mislaid.

In determining there that a sanction of dismissal with prejudice

was overly harsh, we noted that the plaintiffs had received neither

advance warning nor an opportunity to oppose the sanction and

explain their noncompliance.      See id. at 5-7.       Here, however, the

appellant was given two pointed warnings and had an opportunity

(which it eschewed) to oppose the appellees' request for the entry

of a default.

             Next, the appellant insists that the missed deadlines

were   the    unintentional    byproduct    of    the   breakdown   in     its

relationship with its counsel.      Once that breakdown occurred, the

appellant says, it worked diligently to secure successor counsel

and rectify the situation.       But the district court, which had a

bird's-eye view of the events as they played out, see Young, 330

F.3d at 82, rejected this explanation. The court warrantably found

that, notwithstanding the asserted breakdown in communications,

there was no good reason why the defendant could not have worked

with its original counsel until a replacement was identified.              At

any rate, the passage of many months between the occurrence of the


                                   -10-
breakdown and the date on which new counsel first appeared casts

considerable    doubt   on    the     appellant's   self-serving   claim   of

diligence.3

          We need not linger long over the appellant's plaint that

default was inappropriate because its conduct in no way prejudiced

the appellees.    "Repeated disobedience of a scheduling order is

inherently prejudicial, because disruption of the court's schedule

and the preparation of other parties nearly always results."

Robson, 81 F.3d at 4.        That black-letter principle fits this case

like a glove.

          The appellant's other counter-arguments are jejune, and

we dismiss them out of hand.          We discern no abuse of discretion in

the district court's decision to enter a default as a sanction for

the appellant's flagrant disregard of court-imposed deadlines.

                                 B.    Relief.

          The appellant's remaining assignment of error relates to

the scope of the relief granted by the court below.          Its principal




     3
       To be sure, at various times, the appellant's principal
transmitted to the district court correspondence concerning its
travails in retaining new counsel. For two reasons, the district
court was under no obligation to consider these submissions.
First, the appellant was represented by counsel at the time. See,
e.g., United States v. Tracy, 989 F.2d 1279, 1285 (1st Cir. 1993).
Second, a limited liability company cannot, as a matter of law, act
pro se. See supra note 2 (citing cases).
     In any event, the court reviewed those communications and
found them to be nothing more than empty excuses. This finding was
not clearly erroneous.

                                       -11-
grievance is that the court erred when it fashioned an award that

exceeded the relief sought in the complaint.

          Until 2007, default judgments were governed by the then-

current version of Rule 54(c), which stated in relevant part: "A

judgment by default shall not be different in kind from or exceed

in amount that prayed for in the demand for judgment."     Fed. R.

Civ. P. 54(c).   In 2007, however, this language was revised to

read: "[a] default judgment must not differ in kind from, or exceed

in amount, what is demanded in the pleadings."    Some courts have

interpreted the revised language — the change from "demand for

judgment" to "pleadings" — as broadening what may be considered in

the context of a default judgment.    See, e.g., WMS Gaming Inc. v.

WPC Prods. Ltd., 542 F.3d 601, 606 (7th Cir. 2008) (considering the

relief sought in plaintiff's complaint and motion for entry of

default judgment); PT (Persero) Merpati Nusantara Airlines v.

Thirdstone Aircraft Leasing Grp., Inc., 246 F.R.D. 17, 18-19

(D.D.C. 2007) (referencing relief sought in plaintiff's default

judgment memorandum).   There is, however, some reason to question

this view.   See Fed. R. Civ. P. 54(c) advisory committee's note

(2007 amendments) ("The language of Rule 54 has been amended as

part of the general restyling of the Civil Rules . . . . These

changes are intended to be stylistic only.").

          The upshot is that, in the context of a default judgment,

the familiar tenet that a party should be given the relief to which


                               -12-
it is entitled whether or not it has prayed for that relief in its

pleadings, see, e.g., City of Los Angeles v. Lyons, 461 U.S. 95,

130 (1983), does not obtain.    This construct makes perfect sense:

after all, a defendant may reasonably decide, based upon its

evaluation of the relief sought, that defending an action is not

worth the effort.4    10 Charles A. Wright et al., Federal Practice

and Procedure § 2663, at 166-67 (3d ed. 1998).            It would be

manifestly unfair if the court were then to award relief not

previously specified — relief that, perforce, could not have been

included in the defendant's decisional calculus.    Id.    It follows

that a default does not expose a defendant to impositions not

properly identified before the entry of default.           See, e.g.,

Blanchard v. Cortés-Molina, 453 F.3d 40, 45 (1st Cir. 2006).

          In this case, the complaint contains only the following

prayer for relief:5



     4
       In this case, the appellant appeared and answered the
complaint before the motion for entry of default was filed. Be
that as it may, "Rule 54(c) does not differentiate between a
default based on a total failure of defendant to appear and a
default following an appearance." 10 Charles A. Wright et al.,
Federal Practice and Procedure § 2663, at 171 (3d ed. 1998).
     5
       The plaintiffs commenced this action in a Puerto Rico court
and, therefore, the complaint was originally filed in that court.
Puerto Rico courts operate under Rules of Civil Procedure analogous
to the Federal Rules of Civil Procedure. See P.R. Laws Ann. tit.
32, App. III, Rules 1-73. In particular, the Puerto Rico Rules of
Civil Procedure provide that, in connection with a default
judgment, "a judgment by default shall not be different in kind nor
exceed the amount prayed for in the demand for judgment." P.R.
Laws Ann. tit. 32, App. III, Rule 43.6.

                                -13-
             [T]he [appellees] respectfully request[] that
             the honorable court declare overdue the
             obligation due to the [appellant's] failure to
             comply with its terms and, therefore, decree
             null and void the public deed [to the
             Property], thus reverting to the [appellees]
             civil possession of the property to which it
             refers, imposing also payment of $5,000.00 for
             attorney fees.

There is no mention, for example, of either damages for breach of

contract or reimbursement for unpaid insurance premiums.                    The

appellees' subsequent motion for the entry of a default judgment

explicitly states that "[t]he terms of relief requested in the

default judgment are set forth in the . . . complaint," and that

"no monetary damages are requested."

             This explicit limitation makes it unnecessary for us to

decide in this case whether or to what extent the 2007 amendment to

Rule 54(c), see text supra, enlarges the scope of the pleadings to

which    a   court   fashioning    a   default   judgment    may   refer.    We

therefore leave that question open.

             In the default judgment entered below, the district court

not only ordered the return of possession of the Property and the

payment of attorneys' fees but also ordered relief not sought in

the complaint.         This additional relief included damages equal to

the     balance   of     the   purchase   price,   accrued    interest,     and

reimbursement for unpaid insurance premiums. Because these damages

strayed beyond the relief that the appellees had limned in their

complaint and their motion for the entry of a default judgment,


                                       -14-
they were improper.      The obvious remedy for this infirmity is for

the   district   court   to   strike   the   offending     items   from   the

compendium of relief granted.

             The appellant opposes this remedy.      It asseverates that

the post-default hearing held by the court violated principles of

due process and, therefore, the entire judgment must be vacated.

This asseveration lacks force.

             The appellant is correct that even a party in default is

generally entitled to contest damages and to participate in a

damages hearing (if one is necessary).          See Bonilla, 150 F.3d at

82.   Here, however, the court afforded the appellant that very

opportunity.      Moreover,   the   appellant    availed    itself   of   the

opportunity: it presented its position on damages to the district

court and its counsel engaged in extensive cross-examination of the

witnesses proffered by the appellees.        The short of it is that the

appellant received all of the process that was due.

             The appellant's contrary argument confuses liability with

damages.   At the hearing, it proffered a witness to testify about

liability, but the district court refused to allow the testimony.

This ruling was unimpugnable.       The law is pellucid that once the

default is entered, so long as the complaint states a claim for

relief, then the defaulted party has no further right to contest

liability.    See id. at 80; 10A Wright et al., supra § 2688, at 57-

68 (collecting cases).


                                    -15-
             Before us, the appellant attempts to sabotage this ruling

by suggesting that its witness was going to testify as to damages.

But that was not the position that the appellant took below.      The

district court plainly understood that the witness was being

offered to testify about liability — and the appellant never said

otherwise.    Absent extraordinary circumstances (not present here),

the appellant cannot mount an argument in this court that it

neglected to raise in the court below.     Clauson v. Smith, 823 F.2d

660, 666 (1st Cir. 1987).

             In light of the foregoing, we reject the appellant's due

process claim and hold that the district court, on remand, may base

a revised award on the evidence adduced at the post-default

hearing.   We therefore remand for the entry of a revised judgment

limited to declaratory relief, possession of the Property, and

attorneys' fees.

III.   CONCLUSION

             We need go no further. For the reasons elucidated above,

we affirm the entry of default, vacate the judgment below, and

remand for the entry of a revised judgment consistent with this

opinion.



Affirmed in part, vacated in part, and remanded.      Costs are to be

taxed in favor of the appellees.




                                  -16-
