
USCA1 Opinion

	




          April 15, 1996                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1595                              J. DONALD ROBSON, ET AL.,                               Plaintiffs, Appellants,                                          v.                              GILMAN HALLENBECK, ET AL.,                                Defendants, Appellees.                                 ____________________        No. 95-1983                              J. DONALD ROBSON, ET AL.,                                Plaintiffs, Appellees,                                          v.                              GILMAN HALLENBECK, ET AL.,                               Defendants, Appellants.                                 ____________________                                     ERRATA SHEET                                     ERRATA SHEET            The opinion of this  court issued on  April 3, 1996 is amended  as        follows:            On page 7, paragraph 2,  line 2, add the word "to" before the word        "meet."                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1595                              J. DONALD ROBSON, ET AL.,                               Plaintiffs, Appellants,                                          v.                              GILMAN HALLENBECK, ET AL.,                                Defendants, Appellees.                                 ____________________        No. 95-1983                              J. DONALD ROBSON, ET AL.,                                Plaintiffs, Appellees,                                          v.                              GILMAN HALLENBECK, ET AL.,                               Defendants, Appellants.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                               Selya, Boudin and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            Michael T. Phelan for plaintiffs.            _________________            John  C. Ottenberg  with whom Berry, Ottenberg,  Dunkless & Parker            __________________            ____________________________________        was on consolidated brief for defendants.                                 ____________________                                    April 3, 1996                                 ____________________                 BOUDIN, Circuit  Judge.   The plaintiffs, J.  Donald and                         ______________            Sandra Robson, brought suit against Gilman Hallenbeck and Dan            DiCarlo,  alleging  that  the defendants  breached  fiduciary            duties owed to the Robsons, administered a trust in a grossly            negligent manner, and  committed fraud.  The  details of this            action need  not be discussed,  since the principal  issue in            the  plaintiffs'  appeal is  procedural  and  we decline  the            defendants' invitation  to reach  the merits on  their cross-            appeal.   But  because the  case was ultimately  dismissed on            account of the plaintiffs' conduct in pre-trial  proceedings,            a  description of the events  leading up to  the dismissal is            required.                 At  a pre-trial  conference on  September 30,  1994, the            district judge entered an order  that required the parties to            meet a  series of deadlines  in preparation for  trial, which            was set for May 1, 1995:                       By April 10, 1995, the parties were to file a                 stipulation of uncontested  facts, together with  a                 statement  of issues  to  be tried  and  a list  of                 witnesses for each side.                       By April 17, the parties were to submit lists                 of proposed exhibits.                       By April 24, the parties were to file notices                 of  any objections  to proposed exhibits  or expert                 witnesses.            The parties were also directed  to make exhibits available to            the opposing party for  inspection, to file a trial  brief by                                         -2-                                         -2-            the day of trial, and to file requests for rulings  of law on            the day of trial.                 The  plaintiffs'  attorney,  Michael Phelan,  failed  to            attend  the September 1994 pre-trial conference, but received            notice of the  order and its timetable.   Under circumstances            described  more fully below, the plaintiffs  did not meet the            April 10  deadline for filing the  stipulation of uncontested            facts.  The plaintiffs also failed to file a list of proposed            exhibits  by  April  17.   The  parties  dispute  whether the            plaintiffs  made  their  exhibits  available  for  review  by            defense  counsel  reasonably  in  advance of  April  24,  the            deadline   for  filing   objections  to   proposed  exhibits.            Finally, the  plaintiffs filed their requests  for rulings of            law on May 9, eight days late.                 On  May  1,  when  the  trial  was  scheduled to  begin,            attorney  Phelan  appeared  in  court  15  minutes  late  and            discovered that the judge had already dismissed the case with            prejudice for  failure to  comply with the  court's pre-trial            order.  The plaintiffs  filed a motion to vacate the order of            dismissal; the  district judge  denied it without  opinion on            May 24,  1995.  On  June 22, 1995,  the judge denied  without            opinion the plaintiffs' motion  to reconsider their motion to            vacate.                 On  appeal, the  Robsons argue  that the  district court            abused its  discretion in  dismissing the case  because their                                         -3-                                         -3-            actions did  not amount  to "extreme" misconduct,  see Enlace                                                               ___ ______            Mercantil  Internacional v. Senior  Industries, 848 F.2d 315,            ________________________    __________________            317 (1st  Cir. 1988),  that any  violations of  the pre-trial            order were excusable and  did not prejudice the court  or the            defendants,  and  that  a  lesser sanction  would  have  been            appropriate.                 It is hard to find an area of law in which the governing            rules are, and probably  have to be, so vague.  Admittedly, a            district  court  has  broad  authority  to enforce  pre-trial            discipline and to  dismiss a  case for failure  to obey  pre-            trial orders.   Fed.  R. Civ.  P. 16(f),  41(b); see  Link v.                                                             ___  ____            Wabash  Railroad Co., 370 U.S. 626 (1962).  The difficulty is            ____________________            that  the range of circumstances is so vast, and the problems            so much matters of degree, as to defy mechanical rules.  What            the cases,  taken together,  do  is to  set forth  a list  of            pertinent considerations.                 Among  those  commonly  mentioned  (this  list  is   not            complete) are  the severity of the  violation, the legitimacy            of  the  party's  excuse,   repetition  of  violations,   the            deliberateness vel non of the misconduct, mitigating excuses,                           ___ ___            prejudice  to the  other side  and to  the operations  of the            court, and  the adequacy of lesser sanctions.1   Mindful that            case management is  a fact-specific matter within  the ken of                                            ____________________                 1See Figueroa  Ruiz v. Alegria,  896 F.2d 645,  648 (1st                  ___ ______________    _______            Cir. 1990); 9  C. Wright  & A. Miller,  Federal Practice  and                                                    _____________________            Procedure   2370 (2d ed. 1995).            _________                                         -4-                                         -4-            the district court, reviewing courts have reversed only for a            clear  abuse of discretion.   Damiani v.  Rhode Island Hosp.,                                          _______     __________________            704 F.2d 12, 17 (1st Cir. 1983) (collecting cases).                 There is also a procedural dimension.  Although Rules 16            and  41 do  not  formally require  any particular  procedure,            counsel's  disregard  of  a  prior  warning  from  the  court            exacerbates the  offense, and  the lack of  warning sometimes            mitigates it.   Velazquez-Rivera v.  Sea-Land Service,  Inc.,                            ________________     _______________________            920  F.2d 1072,  1078  (1st  Cir.  1990).    Ordinarily,  the            plaintiff is given an  opportunity to explain the  default or            argue  for a lesser penalty; but again there is no mechanical            rule.  Link,  370 U.S. at 632.  The presence or absence of an                   ____            explanation by  the district court may also be a factor.  See                                                                      ___            Damiani, 704 F.2d at 17.            _______                 In this  instance, our main  concern is that  despite an            apparent  pattern  of noncompliance  by  plaintiffs' counsel,            factual  disputes exist  over the  extent of  the misconduct,            including excuses  offered as to  each of the  episodes, that            have  never been resolved by the district court.  Cf. Richman                                                              ___ _______            v.  General Motors  Corp., 437  F.2d  196, 199-200  (1st Cir.                _____________________            1971).  If we were  dealing in this case with a minor  act of            negligence  rather  than a  pattern,  dismissal  might appear            harsh  where  no prior  warning was  given  and there  was no            showing  of special prejudice to the  opponents or the court.            See Velazquez-Rivera, 920 F.2d at 1077-78.            ___ ________________                                         -5-                                         -5-                 In considering  the likely  bases for the  dismissal, we            put to one  side plaintiffs' failure to attend  the pre-trial            hearing, since there is no indication that the district court            considered  it  in deciding  to dismiss  the  case.   We also            ignore Phelan's 15-minutes late arrival  on the day of trial,            because  by  the time  he arrived  for  trial, the  court had            already dismissed  the case  without considering  whether his            lateness  was excused.   What remains is  to consider whether            the  missed pre-trial deadlines,  taken together,  provide an            adequate basis for dismissal.   They might well do  so but in            each instance Phelan  has offered some excuse that  has never            been addressed.                 1.   Late  filing of  stipulation of  uncontested facts.                      __________________________________________________            The parties  did not  start discussing the  stipulation until            April 3, when the  defendants' attorney, John Ottenberg, sent            Phelan a draft of a proposed stipulation by fax.  On April 6,            Ottenberg advised that he  wished to add one witness  for the            defense.   On April  7, a Friday  and the  last business  day            before the stipulation was due, Phelan sent back a draft with            changes.   The defendants  say that in  addition to modifying            the proposed  facts, Phelan made unauthorized  alterations to            the defendants' list of witnesses.                ___________                 The defendants found some of these  changes unacceptable            and sent  another draft to Phelan  on that same  day.  Phelan            did  not respond until after  the close of  business on April                                         -6-                                         -6-            10,  when  he  sent a  further  draft,  which the  defendants            rejected.  No joint  stipulation was filed, and on  April 11,            Phelan contacted a court  clerk, who advised him to  file his            own version of the stipulation.  Although defendants filed  a            separate  stipulation on April 12, Phelan did not do so until            April 20.                 Phelan  says he  contracted a  sinus and  lung infection            during the time the parties were negotiating the stipulation.            This might account for his delay in filing his version of the            stipulation,  but it does not  explain why he  waited so long            before   starting  to   discuss  the  stipulation   with  the            defendants.  At best,  Phelan's conduct appears careless, but            it  is difficult  to  tell  without  knowing why  Phelan  did            nothing until Ottenberg seized the initiative.                 2.  Late  filing of exhibit  list due April 17.   Phelan                     __________________________________________            also failed  to meet  the deadline of  April 17 for  filing a            list of  exhibits; he filed the list a week late on April 24.            Phelan  claims  that his  illness  prevented  his filing  the            exhibits on time,  and further  that a court  clerk told  him            "there  should be no  problem" if he filed  the list within a            week after  the deadline.   Phelan's position is  weakened by            his  failure  to  file  a  motion,  but  there  is  certainly            mitigation  if he did suffer  a serious illness  in this time            frame, a matter the district court did not address.                                         -7-                                         -7-                 3.    Failure to  make  exhibits  available for  review.                       _________________________________________________            Ottenberg  says  he  requested  access  to   the  plaintiffs'            exhibits on  April 3 and again  on April 17, but  that Phelan            did  not  respond.   Phelan,  in contrast,  asserts  that the            exhibits were available for review on  April 14.  It is  hard            to know which account is correct, and the district court made            no finding on the point.2                 On appeal,  Phelan argues  that the pre-trial  order did            not set a deadline for making exhibits available to the other            side.   But on any reasonable reading, the order required the            parties to  make exhibits available reasonably  in advance of            April 24, when objections to  the proposed exhibits were due.            Far from  supporting Phelan,  this defense detracts  from his            position.                 The need for remand is evident.  If Phelan was  at fault            in  all three  episodes,  dismissal was  within the  district            court's discretion; on the  other hand, Phelan offers excuses            for  all three  and  there are  no  findings to  resolve  the            matter.  We leave  it open to the district court to reinstate                                            ____________________                 2There is  some reason  to question Phelan's  claim that            the  exhibits were available as early as April 14.  According            to  the defense,  on April  27, Ottenberg's  paralegal called            Phelan and  offered to exchange  copies of exhibits.   Phelan            said he would have his  exhibits copied by the next day.   On            April 28, the last business day before trial, Phelan informed            Ottenberg that  the copies were  not ready  but the  exhibits            were  available for review and Ottenberg could use the copier            in Phelan's office.                                         -8-                                         -8-            the dismissal if it supportably finds  a pattern of unexcused            noncompliance with the court's order.                 We reject  now the Robsons' alternative  arguments as to            why such a pattern even if proved could not justify dismissal            in  this case.   First,  the Robsons  argue that there  is no            showing of prejudice, such  as the loss of a witness  for the            defense.  In our  view, such a specific showing  of prejudice            would  aggravate  the misconduct,  but  is  not necessary  to            justify dismissal.   Cf. Figueroa  Ruiz v. Alegria,  896 F.2d                                 ___ ______________    _______            645,  649  (1st  Cir.  1990).   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.                 Second, the Robsons argue that the sanction of dismissal            is  too severe in these  circumstances.  There  might be some            merit to the  plaintiffs' argument  if we were  faced with  a            single  instance of  careless  misconduct.   A succession  of            violations,  however, indicating  a general  unwillingness to            comply  with  a court-imposed  scheduling  order,  is for  us            enough  to  justify  dismissal.   Calendars  are  simply  too            crowded for  parties to  treat scheduling orders  as optional            and to conduct trial preparations at their own convenience.                 Finally,  the Robsons  point to  the absence  of warning            that  the court  was considering  dismissal.   This may  be a            pertinent factor in evaluating a dismissal, especially if the                                         -9-                                         -9-            conduct  in  question did  not  violate  a clear  preexisting            requirement.   In this case, however, the scheduling order is            clear and by its  terms requires the parties to  meet certain            deadlines.   A court need not provide  warning that dismissal            will result from repeated violations of such an order.                 The  defendants have  cross-appealed  from the  district            court's denial on March  9, 1994 of their motion  to dismiss,            for judgment on the pleadings, and for summary judgment.  The            denial  of  the  defendants'  motion  is   not  independently            appealable as a final  order.  See Pedraza v.  Shell Oil Co.,                                           ___ _______     _____________            942  F.2d 48, 54-55 (1st  Cir. 1991), cert.  denied, 502 U.S.                                                  _____  ______            1082  (1992).   This  court has  said  it will  generally not            review denials of summary judgment or the like ancillary to a            different appealable order, although  it has stopped short of            saying  such review  is always  foreclosed.   Id.; see  10 C.                                                          ___  ___            Wright et al., Federal Practice and Procedure   2715, at 636-                   __ ___  ______________________________            38 (2d ed. 1983).                 Assuming this court could choose to review the denial of            defendants'  motions on  an ancillary  basis, we  are certain            that this  is  not the  case  for such  an exception  to  the            general rule  against such  review of an  otherwise non-final            order.  The cross-appeal here attempts to present a factually            complex summary judgment claim that is not closely related to            our review  of the appealable  order dismissing the  case for                                         -10-                                         -10-            misconduct.   There  is  no simple,  abstract legal  question            whose resolution now might avoid a lengthy trial.                 In  vacating the  order of  dismissal and  remanding for            further  proceedings,  we are  not  suggesting that  explicit            findings with respect to a party's misconduct and excuses are            necessary  for every such dismissal.   In many cases findings            may  be easily inferred from  the record.   What is difficult            here is that there  are at least three different  episodes of            misconduct,  the plaintiffs' counsel  has proffered an excuse            for each, and the  district court has not expressed  any view            on the  matter  that would  permit  us to  provide  effective            review.                 The judgment of  the district court  is vacated and  the                                                         _______            case is remanded for further proceedings.                    ________                                         -11-                                         -11-
