          United States Court of Appeals
                    For the First Circuit
No. 00-1847

       FAUSTINA DÁVILA-ÁLVAREZ; RAMÓN FERNÁNDEZ-RAMÍREZ;
            ROSA ÁLVAREZ-OQUENDO; RAFAEL HERNÁNDEZ,

                    Plaintiffs, Appellants,

                              v.

       ESCUELA DE MEDICINA UNIVERSIDAD CENTRAL DEL CARIBE;
 HOSPITAL UNIVERSITARIO DR. RAMÓN RUIZ ARNAU (HOSPITAL REGIONAL
DE BAYAMÓN); ESTADO LIBRE ASOCIADO DE PUERTO RICO; MUNICIPIO DE
   BAYAMÓN; DEPARTAMENTO DE SALUD ESTATAL; DR. EDMÉE SOLTERO,
       FIRST PHYSICIAN; DR. RAMÓN MONGE, SECOND PHYSICIAN,

                    Defendants, Appellees,

                              v.

                SURGICAL GROUP ADMINISTRATION,

                    Third-Party Defendant,

                   UNITED STATES OF AMERICA,

                    Co-Defendant, Appellee.


         APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF PUERTO RICO

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


                            Before

                   Torruella, Circuit Judge,
                Campbell, Senior Circuit Judge,
                   and Selya, Circuit Judge.
     Eugene F. Hestres, with whom Bird Bird & Hestres, were on brief,
for appellants.
     Oscar González-Badillo, with whom González Badillo, López
Feliciano & De Jesús Martínez, were on brief, for appellee Escuela de
Medicina Universidad Central del Caribe.
     Leticia Casalduc-Rabell, Assistant Solicitor General, with whom
Gustavo A. Gelpí, Solicitor General, and Rosa N. Russe-García, Deputy
Solicitor General, were on brief, for appellee The Commonwealth of
Puerto Rico.
     Fidel A. Sevillano-del Río, Assistant U.S. Attorney, with whom
Guillermo Gil, United States Attorney, and Lisa E. Bhatia-Gautier,
Assistant U.S. Attorney, were on brief, for appellee United States of
America.



                          August 6, 2001




                                -2-
          TORRUELLA, Circuit Judge. Plaintiffs-appellants1 Faustina

Dávila-Alvarez, Ramón Fernández, Rosa Alvarez-Oquendo and Rafael

Fernández filed the tort action underlying this appeal in the Puerto

Rico courts on November 7, 1995.       It was removed to the federal

district court for the District of Puerto Rico on November 25, 1997.

On April 12, 1998, plaintiffs' counsel, José Antonio Méndez Rodríguez

(José Méndez), died suddenly and unexpectedly. His brother and law

partner, Roberto Méndez Rodríguez (Roberto Méndez), assumed

responsibility for the case. After receiving no response to discovery

requests filed as early as February 1998, defendants moved for

dismissal for lack of prosecution. The district court granted this

motion and dismissed with prejudice on December 14, 1998. Plaintiffs,

represented by new counsel, sought relief from judgment under Federal

Rules of Civil Procedure 60(b)(1) and 60(b)(6). The district court

denied this request. Dávila Alvarez v. Escuela de Medicina Universidad

Central del Caribe, Civ. No. 97-2793 (JAF) (D.P.R. Mar. 28, 2000).

Finding that the district court did not abuse its discretion in

refusing to grant relief, we affirm.

                             BACKGROUND




1 Throughout the opinion we refer to plaintiffs-appellants Dávila-
Alvarez, et. al., as either "plaintiffs" or "appellants" depending on
the stage of the litigation at issue.

                                 -3-
          We present the procedural history of this litigation in some

detail, as it supports the district court's refusal to grant relief

from judgment.

          On November 7, 1995, plaintiffs filed this medical

malpractice claim in Bayamón Superior Court, a Puerto Rico court of

first instance. José Méndez, of the law firm of Méndez & Méndez, was

counsel of record. The firm's address was listed with the court as

Tropical #30, Muñoz Rivera, Guaynabo, Puerto Rico. On July 23, 1996,

José Méndez filed an Informative Motion in the Puerto Rico court noting

changes to the firm's street and mailing addresses.2 On November 25,

1997, co-defendant3 Dr. Susana Schwartz removed the case to federal

district court pursuant to 28 U.S.C. § 1442(a)(1), 28 U.S.C. § 2679(d),

and 42 U.S.C. § 233.4 The notice of removal was served to José Méndez

at his former address, Tropical #30.

          Although the case had been removed to federal court and

dismissed from the Puerto Rico courts, José Méndez filed a second



2 The new street address was 1848 Glasgow Avenue, College Park, Rio
Piedras, Puerto Rico. The new mailing address was P.O. Box 70150,
Suite 128, San Juan, Puerto Rico.
3 There is some dispute as to whether Dr. Schwartz should be considered
a co-defendant or a third-party defendant; for purposes of this appeal,
the distinction is irrelevant.
4 Schwartz did so as an officer of the United States Department of
Health and Human Services who had obtained a certification from the
United States Attorney that she was acting within the scope of her
federal employment at the time of the conduct complained of.

                                 -4-
Informative Motion in Bayamón Superior Court on January 13, 1998,

noting another change in the mailing address of Méndez & Méndez, to

P.O. Box 270128, San Juan, Puerto Rico. Counsel for defendants were

also served with notice of the new address. On January 23, 1998, the

Bayamón Superior Court issued a Notice of Judgment to the correct Box

270128 address, informing José Méndez that judgment had issued, and the

case dismissed from the Bayamón court, as of December 11, 1997. The

December 11, 1997 dismissal order clearly stated that the case was

dismissed under 28 U.S.C. § 1446, the federal removal statute. As

appellants concede that José Méndez received the Notice of Judgment

from the Bayamón Superior Court on January 28, 1998, he was on notice

as of that date that the case had been dismissed from the Puerto Rico

courts because it had been removed to federal district court.

          Also on January 23, 1998, the United States was substituted

as defendant for Dr. Schwartz pursuant to 28 U.S.C. § 2679. Notice of

this substitution was sent by first-class mail to José Méndez at his

former address, Tropical #30. On February 2, 1998, the United States

submitted a responsive pleading, which was again sent to the incorrect

Tropical #30 address. On February 3 and February 4, 1998, the United

States sent interrogatories and filed a request for the production of




                                 -5-
documents, again to the wrong address. There is no evidence, for the

most part, that these documents ever arrived at Méndez & Méndez.5

          Because José Méndez was not admitted to practice before the

federal court, at some point in January or February of 1998, he

contacted attorney Enrique Mendoza about the possibility of referring

the case. The record shows only that Mendoza solicited research on a

relevant legal issue from a third attorney.6 On February 23, 1998,

Mendoza faxed the results of this research to José Méndez. There is no

evidence in the record that Mendoza accepted the referral, and no

motion was filed informing the district court of a change of counsel.

José Méndez also did not inform the district court at this point that

he was not admitted to the federal bar.

          On   April   12,   1998,    José   Méndez   died   suddenly   and

unexpectedly. Upon his death, Roberto Méndez assumed responsibility

for all of his current cases. Roberto Méndez was also not admitted to

practice before the federal court.



5 There is strong circumstantial evidence that José Méndez received at
least the notice informing him of the United States' substitution as a
defendant in a timely fashion. His correspondence with Enrique Mendoza
in early 1998 presented a fact scenario based on such a substitution.
See infra at n.10.
6 After removing the case, the United States had claimed that the suit
was barred for failure to pursue administrative remedies required under
the Federal Tort Claims Act (FTCA). Mendoza had asked attorney Lisa
Drucker Shub to research whether, in a case where a plaintiff was
unaware of defendant's federal employment status prior to removal, the
statute of limitations acted to bar an administrative claim.

                                     -6-
          On June 8, 1998, the district court issued a Scheduling Order

providing that the pleadings be finalized by July 17, 1998, that

discovery be completed by October 8, 1998, and that any dispositive

motion be filed prior to November 9, 1998. A pretrial conference was

scheduled for December 8, 1998. It is unclear from the record whether

the Order was sent to Méndez & Méndez at the Tropical #30 address or at

the correct Box 270128 address.7

          On October 21, 1998, the United States filed a motion

requesting dismissal for want of prosecution, noting that its

interrogatories and requests for document production, propounded in

February of 1998, had gone unanswered, and that the time for discovery

set forth in the Scheduling Order had elapsed. This motion was later

joined by co-defendant Escuela de Medicina. Both motions were noticed

to the now-deceased José Méndez at his Tropical #30 address. Counsel

for Escuela de Medicina also submitted an affidavit stating that he had

left more than a dozen phone messages for Roberto Méndez (both upon the

June receipt of the Scheduling Order and in the days prior to the

December pre-trial conference) that had gone unreturned.            On

December 8, 1998, the motion for dismissal was granted. Judgment was

entered as of December 14, 1998.



7 A copy of the civil docket included in the appendices indicates that,
as of July 11, 2000, the district court had the Tropical #30 address on
file for José Méndez and the P.O. Box 270128 on file for both the law
firm Méndez & Méndez and for Roberto Méndez.

                                 -7-
          Between José Méndez's death on April 12, 1998 and December

3, 1998, Roberto Méndez took no action regarding this case.         On

December 3, 1998, he forwarded a "cross-claimant complaint" to Mendoza.

The same day, Mendoza responded that he "really [had] no interest in

participating in this case." On December 15, 1998, a day after the

district court had entered judgment, Roberto Méndez asked the court for

a thirty day extension in order to find new representation for

plaintiffs.   In his request, Méndez claimed that until receiving

Mendoza's December 3 fax disclaiming any responsibility for the

litigation, it had been his understanding that Mendoza had assumed

representation prior to José Méndez's death.

          New counsel for plaintiffs sought relief from judgment on

this basis in a Rule 60(b) motion filed January 19, 1999. The district

court denied the motion in an Opinion and Order dated March 28, 2000.

In particular, the court noted that: (i) Roberto Méndez had

inexplicably failed to notify the district court of the death of José

Méndez; (ii) instead of making the incorrect assumption that Enrique

Mendoza had assumed responsibility for the case, Roberto Méndez "should

have assured himself of this fact"; (iii) the multiple messages left by

defendants with the secretary at Méndez & Méndez should have alerted

Roberto Méndez to the imminent expiration of the time for discovery;

(iv) although the Rule 60(b) petition focused on the incorrect address

used by defendants (and perhaps the court), at no point did appellants'


                                 -8-
counsel affirmatively state that Méndez & Méndez had failed to receive

the relevant motions and notices at the firm's new address; and (v)

José Méndez should have filed a change of address form with the federal

court after receiving notice of removal. A subsequent request for

reconsideration was denied on May 25, 2000.        This appeal followed.

                             DISCUSSION

          Federal Rule of Civil Procedure 60(b)(1) allows the court to

relieve a party from a final judgment for "mistake, inadvertence,

surprise, or excusable neglect." As motions brought under Rule 60(b)

are "committed to the court's sound discretion," we review here only to

determine if the district court abused its discretion in refusing to

grant appellants' motion. Torre v. Continental Ins. Co., 15 F.3d 12,

14-15 (1st Cir. 1994). Although many courts have indicated that Rule

60(b) motions should be granted liberally,8 this Circuit has taken a

harsher tack. "Because Rule 60(b) is a vehicle for 'extraordinary

relief,' motions invoking the rule should be granted 'only under

exceptional circumstances.'" Id. (quoting Lepore v. Vidockler, 792

F.2d 272, 274 (1st Cir. 1986)). The rule must be applied so as to

"recognize the desirability of deciding disputes on their merits,"

while also considering "the importance of finality as applied to court

8 See, e.g., Solaroll Shade & Shutter Corp. v. Bio-Energy Sys., Inc.,
803 F.2d 1130, 1132 (11th Cir. 1986); Blois v. Friday, 612 F.3d 938,
940 (5th Cir. 1980); Radack v. Norwegian Am. Line Agency, Inc., 318
F.2d 538, 542 (2d Cir. 1963); 11 Wright, Miller & Kane, Federal
Practice & Procedure, § 2852, at 231 (1995).

                                 -9-
judgments." Teamsters, Chauffeurs, Warehousemen & Helpers Union, Local

No. 59 v. Superline Transp. Co., 953 F.2d 17, 19-20 (1st Cir. 1992).

Although these authorities must now be read with the gloss supplied by

the Supreme Court in Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.

P'ship, 507 U.S. 380 (1993), they still remain instructive.9

          Appellants argue that José Méndez's death, Roberto Méndez's

belief that the case had been transferred to Enrique Mendoza, and the

fact that many of the motions and notices were sent to the incorrect

address make their failure to prosecute "excusable neglect."       Our

evaluation of what constitutes excusable neglect is an equitable

determination, taking into account the entire facts and circumstances

surrounding the party's omission, including factors such as the danger

of prejudice to the non-movant, the length of the delay, the reason for

the delay, and whether the movant acted in good faith. Id. at 395.

After considering the facts at issue here, we conclude that the neglect

exhibited -- both by José Méndez before his death and by Roberto Méndez

afterwards -- could fairly be termed inexcusable, and therefore that

the district court did not abuse its discretion in denying the Rule

60(b) motion. See Ojeda-Toro v. Rivera-Méndez, 835 F.2d 25, 30 (1st




9 Although Pioneer defined "excusable neglect" in the context of
Bankruptcy Rule 9006(b)(1), the case expressly indicated that the
Bankruptcy Rule definition paralleled that of Federal Rule of Civil
Procedure 60(b)(1). Pioneer, 507 U.S. at 393.

                                 -10-
Cir. 1988) (changes in counsel do not relieve litigant from liability

for previous counsel's inexcusable neglect).

          First, before his death, José Méndez inexcusably failed to

communicate with the federal district court, or keep the court

appraised of the status of the case.         He had, since at least

January 28, 1998, been on notice that the case had been removed from

the Puerto Rico courts to the federal district court. At no point

after that date did Méndez inform the court that he was not admitted to

federal practice. Although he was aware that his second change of

address, to Box 270128, had been filed with the Bayamón court after

that court had dismissed the case, he failed to inform the federal

court of his new address.    José Méndez also failed to respond to

interrogatories and discovery requests sent in February of 1998

(although it is possible that he never received these requests, or did

not receive them in a timely fashion, due to the incorrect address used

by defendants).

          In short, between the time he received notice of the removal

of this case in January 1998 and his death in April 1998, José Méndez

did virtually nothing to indicate his active prosecution of the case,

other than contact Mendoza about the possibility of referral. An

attorney has a duty of diligence to inquire about the status of a case.

Pryor v. United States Postal Serv., 769 F.2d 281, 287 (5th Cir. 1985).

Moreover, it is an attorney's responsibility to alert the court as to


                                 -11-
scheduling conflicts, and to explain absences or failures to appear in

a timely fashion. Kagan v. Caterpillar Tractor Co., 795 F.2d 601, 608

(7th Cir. 1986). The failure to do so need not be excused under Rule

60(b)(1). Id.; cf. Torre, 15 F.3d at 15 (litigant's failure to take

simple step of alerting court to ongoing negotiations and request

postponement of imminent deadlines was inexcusable neglect).

          Appellants make little or no attempt to explain the neglect

on the part of José Méndez, other than noting that he was not notified

of the removal to federal district court until approximately two months

after it was filed, and that defendants sent post-removal notices to

the wrong address. These two facts do not automatically excuse his

inexplicable refusal to conduct ordinary communication with the federal

court. Certainly, the correspondence between José Méndez and Enrique

Mendoza, dated February 23, 1998, makes it evident that José Méndez was

by February fully aware that the case had been removed to federal

court, and that he had received at least the January 23, 1998 notice

(originally sent to the incorrect address) that the United States had

substituted as a party.10

          Second, Roberto Méndez's incorrect "assumption" that Enrique

Mendoza had assumed responsibility for the representation was

10 Drucker Shub's memorandum, attached to Mendoza's fax, posits a
factual scenario "where a plaintiff files his or her claim in state
court only later to have it removed to federal court, and the United
States is substituted as party defendant." Méndez had apparently been
aware of these relevant facts and briefed Mendoza on them.

                                 -12-
inexcusable negligence. We sympathize with the fact that José Méndez's

death was an undoubtedly disruptive event at Méndez & Méndez as well a

difficult personal loss for Roberto Méndez. However, a lawyer's duty

of diligence transcends both upheaval at work and personal tragedy.

See Pioneer, 507 U.S. at 398 ("In assessing the culpability of

respondents' counsel, we give little weight to the fact that counsel

was experiencing upheaval in his law practice at the time of the bar

date."); Miranda v. Am. Airlines, 176 F.R.D. 438, 440-41 (D.P.R. 1998)

(personal problems of counsel do not constitute excusable neglect).

Again, an attorney has an ongoing responsibility to inquire into the

status of a case.   Pryor, 769 F.2d at 287. Roberto Méndez was not

relieved of this responsibility because the case came to him after his

brother's untimely death; if anything, his lack of familiarity with the

litigation indicated a greater duty to ensure no deadlines were missed.

Finally, having examined the record, we note that Méndez's claimed

assumption was not a particularly reasonable one: the fact that Mendoza

had relayed a memorandum of law to José Méndez suggests that Méndez &

Méndez still bore some responsibility for the litigation; the case file

remained at the firm; there was no documentation of a change in

counsel; and there was no record that José Méndez had informed the

district court of any change in representation.

          Appellants' reliance on the incorrect address used by

defendants (and perhaps by the district court) is unavailing for


                                 -13-
several reasons. First, as we explained above, José Méndez's failure

to communicate with the district court or alert defendants that they

were using the incorrect address is at least partly to blame for

defendants' continued use of Tropical #30. Second, appellants do not

challenge the representation that defendants had made over a dozen

phone calls to Roberto Méndez's office regarding the failure to respond

to discovery. Méndez admitted that he returned only one phone call

because it was difficult for him to return phone calls during business

hours. Third, as the district court noted, Dávila Alvarez, Civ. No.

97-2793 (JAF), at 5-6, appellants' assertion that Méndez & Méndez did

not receive notices in a timely manner (if at all) is not entirely

credible. The record supports the inference that José Méndez received

at least the United States' motion to substitute as a defendant.

Furthermore, at no point has any lawyer associated with Méndez & Méndez

stated in an affidavit that the firm never received the relevant

documents. Although appellants claim, truthfully, that there is no

evidence in the record that the documents were received, if any such

evidence existed, it would be in the care of Méndez & Méndez.

          Even if Méndez & Méndez never received many of the relevant

motions or notices from either defendants or the district court, we

think the facts in this case support the district court's holding.

First, the record compels the conclusion that José Méndez was on notice

of the removal of the case to federal court by January 28, 1998.


                                 -14-
Second, once so informed, the confusion as to the correct firm address

did not relieve either Méndez brother of his responsibility to inform

the district court of the correct address and the fact that he was not

admitted to the federal bar. Upon his brother's death, Roberto Méndez

had a duty to make appropriate inquiries as to the status of the case,

either by ensuring that replacement representation was in place or by

finding such representation. And at the very least, Roberto Méndez

should have returned the phone calls of opposing counsel. In short,

José Méndez failed to undertake ordinary matters of diligent

representation and Roberto Méndez ignored the case for almost eight

months based on an incorrect and unreasonable assumption; such overt

neglect is hardly excusable even if a lawyer is preoccupied with other

matters. Torre, 15 F.3d at 15; Piñero Schroeder v. Fed. Nat'l Mortgage

Ass'n, 574 F.2d 1117, 1118 (1st Cir. 1978) (attorneys must organize

their work so as to meet the time requirements of the matters they are

handling).

           The other equitable factors do not point in appellants'

favor. This is not a case where a litigant missed deadlines by hours

or days.   Cf. Denman v. Shubow, 413 F.2d 258, 259 (1st Cir. 1969)

(counsel overslept and missed trial, but acted promptly to remedy the

situation). Roberto Méndez missed every discovery deadline and ignored

the existence of a pre-trial conference. Furthermore, almost eight

months passed between José Méndez's death and Roberto Méndez's attempts


                                 -15-
to remedy the situation. Finally, Roberto Méndez's failure to perform

simple acts of courtesy such as returning opposing counsel's phone

calls in a timely fashion calls his good faith seriously into question.

           Appellants make a final plea that to dismiss the case based

on counsel's inexcusable conduct would work an unjust penalty on the

litigants.     The Supreme Court has clearly disavowed such an argument:

           There is certainly no merit to the contention
           that dismissal of petitioner's claim because of
           his counsel's unexcused conduct imposes an unjust
           penalty on the client. Petitioner voluntarily
           chose this attorney as his representative in the
           action, and he cannot now avoid the consequences
           of the acts or omissions of this freely selected
           agent.    Any other notion would be wholly
           inconsistent with our system of representative
           litigation, in which each party is deemed bound
           by the acts of his lawyer-agent and is considered
           to have "notice of all facts, notice of which can
           be charged upon the attorney."

Link v. Wabash R.R. Co., 370 U.S. 626, 633-34 (1962) (quoting Smith v.

Ayer, 101 U.S. 320, 326 (1879)); see also Pioneer, 507 U.S. at 396

(citing Link).

           Appellants also seek relief under Rule 60(b)(6), which allows

a court to grant relief for "any other reason [so] justifying." Rules

60(b)(1) and 60(b)(6) are mutually exclusive, however, meaning that

appellants are not entitled to relief under (b)(6) for claims of

excusable neglect. Pioneer, 507 U.S. at 393; Liljeberg v. Health

Servs. Acquisition Corp., 486 U.S. 847, 863 & n.11 (1988). Moreover,

to   justify   relief   under   Rule   60(b)(6),   "a   party   must   show


                                  -16-
'extraordinary circumstances' suggesting that the party is faultless in

the delay." Pioneer, 507 U.S. at 393; Ackerman v. United States, 340

U.S. 193, 197-200 (1950); Klapprott v. United States, 335 U.S. 601,

613-14 (1949). As we have explained at length, both José Méndez and

Roberto Méndez were far from faultless in their conduct.

          Appellants end with a last-ditch jurisdictional argument. In

their reply brief, they admit that they failed to fulfill the

jurisdictional prerequisite of pursuing administrative remedies prior

to filing a claim under the FTCA. They argue that this failure robbed

the district court of subject matter jurisdiction to enter judgment,

and that we should direct the court to void the judgment and remand to

the Puerto Rico courts. Given that this issue was not raised before

the district court, and briefed only marginally here, we are loath to

address it at any length. We confine ourselves to two observations.

First, a failure to comply with the exhaustion requirement would not

affect the district court's jurisdiction over the action as a whole

(and to the extent that it might have furnished an argument for remand,

that argument was waived by plaintiffs' failure to make a timely motion

to that effect). Second, the exhaustion requirement is, in all events,

intended for the government's protection, and, like most other

exhaustion requirements, can be waived by the intended beneficiary.

Since it is the plaintiffs, not the federal defendant, who attempt to

invoke exhaustion here, we conclude that the waiver doctrine applies


                                 -17-
and that there was no jurisdictional impediment to the entry of

judgment below.

         Affirmed.




                             -18-
