                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 93-1041

          THE ESTATE OF JOSE M. SOLIS-RIVERA, ET AL.

                   Plaintiffs, Appellants,

                              v.

                  UNITED STATES OF AMERICA,

                     Defendant, Appellee.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF PUERTO RICO

       [Hon. Gilberto Gierbolini, U.S. District Judge]
                                                     

                                         

                            Before

                     Selya, Circuit Judge,
                                         

               Campbell, Senior Circuit Judge,
                                             

                   and Cyr, Circuit Judge.
                                         

                                         

Armando Cardona-Estelritz  and Isidro Garcia  Pesquera Law Offices
                                                                  
on brief for appellants.
Isabel  Munoz  Acosta,   Assistant  United  States  Attorney,  and
                     
Daniel F.  Lopez-Romo, United States Attorney, on brief for the United
                 
States.

                                         

                         May 11, 1993
                                          

          Per  Curiam.   Plaintiffs/appellants are  the widow
                     

and children  of the late  Jose M. Solis Rivera.   Plaintiffs

brought this  action pursuant to the Federal  Tort Claims Act

("FTCA"), 28 U.S.C.   2671  et seq., claiming that the United
                                   

States  Department of  Veterans'  Affairs ("VA")  negligently

failed  to diagnose and  treat Solis Rivera's  prostate gland

cancer.     Plaintiffs  appeal  from  the   district  court's

dismissal  of  the   case  without  prejudice  for   lack  of

prosecution.

                              I.

          Plaintiffs filed  their  complaint  on  August  19,

1991.  On February 13, 1992, the government filed a motion to

dismiss the complaint, arguing that plaintiffs had improperly

filed their  administrative claim in  the name of  Jose Solis

Rivera  and his  heirs,  rather  than in  the  name of  Solis

Rivera's  estate   or  in   the  names   of  the   plaintiffs

individually as his heirs.  Plaintiffs did not respond to the

government's motion to dismiss within ten days of service, as

required by Local Rule 311.5  of the District of Puerto Rico.

On March  23, 1992, after more than  a month had passed since

service of the motion to dismiss, the district court  entered

an  order dismissing the complaint with prejudice for failure

to  diligently prosecute the  action.  A  judgment dismissing

the case was entered on March 31.

                             -2-

          Plaintiffs thereafter filed a  motion to vacate and

set aside  the court's order  and a motion to  reconsider the

judgment.   In  the motions,  plaintiffs' attorney  explained

that  he thought  the  district court,  during  a February  7

status conference, had approved a thirty-day period to answer

the  government's proposed  motion to  dismiss.   Plaintiffs'

attorney further explained that he had been busy with another

case for  three weeks, and asked  the court to impose  a less

severe sanction than dismissal with prejudice in light of the

isolated nature of his dilatory action.

          On  May  29,  1992,  the  district  court   granted

plaintiffs' request  to vacate and set aside  its prior order

dismissing  the case.  On the same  day, the court granted to

the government fifteen days to file a detailed  memorandum of

law in support of the motion to  dismiss that it had filed on

February 13.  Plaintiffs were given ten days to respond.  

          On June 12, 1992, in compliance with the order, the

government  filed  the  more detailed  memorandum  of  law in

support of  its motion  to dismiss.   On June  23, plaintiffs

requested  an additional  five  days  to  respond  ostensibly

because plaintiffs' attorney was unable to find in his  files

a contemporaneous motion to dismiss.  The government contends

that  it  subsequently informed  plaintiffs' attorney  that a

copy of the motion  to dismiss filed on February 13, 1992 was

to  accompany  its  memorandum  of  law  of  June  12.    The

                             -3-

government   faxed  a  copy  of  the  motion  to  dismiss  to

plaintiffs' attorney on June 24.

          Approximately a month passed with no  response from

plaintiffs.  On July 29,  1992, the government filed a motion

to  adjudicate, asking  the  court to  dismiss the  case with

prejudice because  plaintiffs had  failed to  respond to  its

motion  to dismiss twenty-nine business days after they filed

a request for an extension.

          On  August  10,  1992,  plaintiffs filed  a  motion

opposing the government's motion to adjudicate.   Plaintiffs'

attorney claimed  he was not  informed until July 16  that he

was not  missing any of the government's  pleadings, and that

he had  been busy  with another jury  trial, but  expected to

complete  an opposing  memorandum within  a day  or two.   On

August  18,  1992,  plaintiffs  finally  filed  a  memorandum

opposing the government's motion to dismiss.

          By  that  time,  however,  the  district court  had

already entered an order dated August  12 dismissing the case

with prejudice for lack of prosecution.  Judgment was entered

on August 19, 1992.

          On  August  25,  plaintiffs   filed  a  motion  for

reconsideration.  They  argued that (1) they  had filed their

memorandum on August  18, before receiving the  court's order

dated August 12 and before  judgment was entered; and (2) the

essentials  of  plaintiffs'  opposition to  the  government's

                             -4-

motion to dismiss  had been tendered in plaintiffs'  March 27

motion to vacate.

          On October 22,  1992, the district court  issued an

order  denying plaintiffs'  motion  for reconsideration,  but

modifying  the August  12, 1992  order  to dismissal  without

prejudice.   Plaintiffs  appeal  from  the  district  court's

October 22, 1992 order dismissing the case without prejudice.

                             II.

          Rule  41(b) of the Federal Rules of Civil Procedure

expressly  authorizes  a  district court  to  dismiss  a case

"[f]or failure of the plaintiff to prosecute or comply with .

.  . any  order of  court."   Dismissal  with prejudice  is a
                                                       

"harsh sanction," Richman  v. General Motors Corp.,  437 F.2d
                                                  

196, 199 (1st Cir. 1971), which "should be employed only when

a plaintiff's misconduct has been extreme,"  Figueroa Ruiz v.
                                                          

Alegria, 896 F.2d  645, 647 (1st Cir. 1990),  and "only after
       

the district  court has determined  'that none of  the lesser

sanctions  available  to  it  would  truly  be appropriate,'"

Enlace Mercantil Int'l, Inc. v. Senior Indus., Inc., 848 F.2d
                                                   

315, 317 (1st Cir. 1988).  A finding of extreme misconduct is

justified  if   there  is   extremely  protracted   inaction,

disobedience   of  court   orders,  ignorance   of  warnings,

contumacious conduct, Cosme Nieves v. Deshler, 826 F.2d  1, 2
                                             

(1st Cir. 1987), or "some other aggravating circumstance such

as 'prejudice  to the  defendant, glaring  weaknesses in  the

                             -5-

plaintiff's  case,   and  the   wasteful  expenditure   of  a

significant  amount of the district court's time.'"  Figueroa
                                                             

Ruiz, 896 F.2d at 648  (quoting Enlace Mercantil, 848 F.2d at
                                                

317).   We review  a district court's  dismissal for  lack of

prosecution only for an abuse of discretion.   E.g., Figueroa
                                                             

Ruiz, 896 F.2d at 647.  
    

          Plaintiffs  contend   that  the   district  court's

dismissal without prejudice is the functional equivalent of a

dismissal  with  prejudice  since  the six-month  statute  of

limitations  authorized in  the FTCA,  28  U.S.C.    2401(b),

(providing in substance  that, in an FTCA case,  suit must be

"begun within six months  after the date of mailing .  . . of

notice  of final [administrative]  denial of the  claim") had

long since  passed and there  appears to be no  likelihood of

equitable tolling.  See de Casenave v. United States, No. 92-
                                                    

2102,  slip  op.  at  6  (1st Cir.  April  20,  1993)  (where

plaintiffs' initial  lawsuit  was dismissed  for  failure  to

abide by discovery orders, and record contains no evidence of

misconduct  on part of government, court "discern[s] no basis

under which the  district court could have  applied equitable

principles" to toll FTCA's six-month statute of limitations);

Pipkin v.  United States  Postal Service,  951 F.2d  272, 274
                                        

(10th Cir. 1991) (refusing to toll FTCA six-month limitations

period  during  filing  of previous  FTCA  lawsuit  which was

dismissed  without  prejudice   for  failure  to  prosecute).

                             -6-

Plaintiffs  argue  that  their dilatory  conduct  was  not so

egregious  as to  justify what  is, in  effect, the  ultimate

sanction of dismissal with prejudice.  

          The district  court may, indeed,  have been unaware

that the applicable statute of limitations had expired.   The

court's  October 22  modification  of  its  August  12  order

dismissing  the  case  from   "with  prejudice"  to  "without

prejudice"  suggests  that  the  court  may  have  felt  that

plaintiffs were  in a position to refile  their case.  Such a

belief  on the  court's part  would  be understandable  given

plaintiffs' counsel's neglect, either before or after October

22,  1992,  to  point  out  to  the  court  their limitations

problem.

          Resolution of this appeal is not altogether simple.

Plaintiffs' attorney's failure on two occasions to respond to

plain  deadlines was egregious.   If  the district  court had

dismissed with prejudice in these circumstances, we could not
              

say  it  had  abused its  discretion.    However, by  finally

dismissing without  prejudice, the  district  court seems  to
                  

have  indicated  a  merciful  wish  not  to  visit  counsel's

dereliction  upon  the  heads of  plaintiffs  by  barring the

action altogether.   A district  court, which has  direct and

continuous  contact with attorneys, is best  able to judge in

the  first  instance  whether  an  attorney's  misconduct  is

sufficiently  egregious to  warrant the  "death  knell" of  a

                             -7-

lawsuit, see  Aoude v. Mobil  Oil Corp., 892 F.2d  1115, 1118
                                       

(1st Cir.  1989), or  whether some  lesser sanction  would be

more appropriate.

          Given the  district court's action  in changing the

dismissal  from  "with"   to  "without"  prejudice,   we  are

persuaded to remand  to the same district judge  to allow him

to decide  whether,  given the  surfacing of  the statute  of

limitations problem, he  wishes to give plaintiffs  a further

chance  by allowing  the present  action to  proceed.   In so

remanding,  we may be  criticized for overlooking plaintiffs'

failure to have  raised the limitations problem  below.  This

court  will  not  ordinarily  consider  a  matter  not  first

presented to the  district court.  E.g.,  Boston Celtics Ltd.
                                                             

Partnership v.  Shaw, 908 F.2d  1041, 1045  (1st Cir.  1990).
                    

Still, we think  the district court is better positioned than

ourselves to  determine  the course  of  justice here.    We,

therefore, vacate and remand, but emphasize that we leave the

choice entirely in the hands of the district court, which may

either choose to confirm the  "death knell" of this action by

reentry of  its previous  or some  other dismissal  order, or

else allow the case to proceed.  If the district court allows

the  case to  proceed, the  court may  wish to  assure itself

either   that  present  counsel   will  in  the   future  act

responsibly  or that  new  counsel  will  be  substituted  by

plaintiffs.  The court may  also consider whether to  impose,

                             -8-

as a condition to allowing  the case to go forward, pecuniary

sanctions, to be  paid by present counsel  personally, and to

see that  present counsel does  not bill its own  clients for

time related to its ineffective and annoying conduct to date.

          Vacated  and remanded  for  further proceedings  in
                                                             

accordance  herewith.     Costs  to  appellee,  to   be  paid
                                                             

personally by appellant's counsel.
                                 

                             -9-
