               Not for Publication in West's Federal Reporter

          United States Court of Appeals
                      For the First Circuit

No. 07-2449

               PAUL BEETZ III, INDIVIDUALLY AND AS
         TRUSTEE OF THE JANE AUDREY BEETZ FAMILY TRUST,

                       Plaintiff, Appellant,

                                    v.

                      THOMAS AMBROSI, ET AL.,

                      Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Richard G. Stearns, U.S. District Judge]


                                 Before

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



     Paul Beetz on brief pro se.
     Thomas Nicholson and Finneran & Nicholson, on brief for
appellee, Ambrosi.
     Doyle C. Valley and Morrison Mahoney LLP, on brief for
appellees Bradshaw.
     Joel Rosen on brief for appellee Briggs.


                            July 28, 2008
            Per Curiam.    Paul Beetz, III, a Nebraska attorney acting

pro se, appeals the district court's order dismissing his civil

action with prejudice for failure to comply with a court-ordered

filing deadline. After careful review, we conclude that dismissing

the action with prejudice on the stated ground amounted to an abuse

of discretion.      See Ruiz-Rosa v. Rullan, 485 F.3d 150, 153 (1st

Cir. 2007) (a district court's use of dismissal with prejudice as

a sanction is reviewed for abuse of discretion).

            By    order   dated   July   17,   2007,   the   district   court

determined that Beetz's complaint failed to satisfy the pleading

standards set forth in Rule 8 and Rule 9(b) of the Federal Rules of

Civil Procedure and warned that the complaint would be dismissed

unless Beetz filed an amended complaint that "conform[ed] to the

civil rules" within thirty days.         On August 23, 2007, the district

court issued an order dismissing the case with prejudice on the

ground that Beetz had failed to file an amended complaint by the

deadline set in the July 17 order.

            Beetz filed an amended complaint on August 28, 2007, but

due   to   some    apparent   docketing    irregularities,     the   amended

complaint was not entered on the electronic docket until some

months later.      On August 30, 2007, the district court entered a

final order of dismissal "in accordance with [the] . . . order

entered on August 23, 2007."




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          On appeal, Beetz concedes that he did not file an amended

complaint within thirty days of the July 17, 2007, order, but he

contends that his amended complaint was nevertheless timely because

the district court had implicitly granted an extension of the

filing deadline in an electronic order entered July 30, 2007.   The

electronic order Beetz cites simply granted, without comment, a

motion by Beetz's attorney which requested leave to withdraw as

counsel as well as an extension of "at least" thirty days to file

the amended complaint.   Defendants argue that the court's failure

to expressly address the request for an extension when it ruled on

the motion should be read as an implicit denial of that relief.

However, in the absence of any qualifying language or other signal

of disapproval, we think that the court's order is more sensibly

read as implicitly granting the motion in its entirety.         The

deadline for filing the amended complaint therefore would have been

extended until at least mid-September, making Beetz's amended

complaint, filed on August 28, 2007, timely.   Whether the district

court was aware that the amended complaint had been filed is

unclear in light of the docketing irregularities noted above;

however, since the fault for that confusion does not appear to be

attributable to Beetz, the case should not have been dismissed

solely for failure to comply with the original deadline.

          Defendants alternatively argue that, even if the amended

complaint was not untimely, the dismissal should be affirmed


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because the amended complaint Beetz submitted suffered from the

same defects as the original and therefore did not comply with the

court's order to file an amended complaint that "conform[ed] to the

civil    rules."     However,   whether     the   complaint   as   amended   is

sufficient to comply with pleading requirements or to state a claim

for relief are questions that must be determined by the district

court in the first instance.          We cannot affirm on the basis of a

discretion    that   the   district    court   did   not   exercise.    Clair

Recreation Center, Inc. v. Flynn, 897 F.2d 623, 624 (1st Cir.

1990).

            In sum, since the district court implicitly granted an

extension of time to file the amended complaint and Beetz complied

with the extended deadline, we find that dismissing the case solely

for failure to comply with the original deadline amounted to an

abuse of discretion. Accordingly, we vacate the order of dismissal

and remand to allow the district court an opportunity to assess the

sufficiency of the amended complaint and to conduct any further

proceedings deemed appropriate.         No costs.




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