          United States Court of Appeals
                     For the First Circuit

No. 09-1721

                MONSERRATE GARCÍA-PÉREZ, ET AL.,

                     Plaintiffs, Appellants,

                               v.

                 HOSPITAL METROPOLITANO, ET AL.,

                     Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Juan M. Pérez-Giménez, U.S. District Judge]


                             Before

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



     Humberto R. Vázquez-Sandoval on brief for appellants.
     Gloria M. De Corral and De Corral & De Mier on brief for
appellee, Hospital Metropolitano.
     Juan M. Masini-Soler on brief for appellees, Rafael Ramírez-
Pepen, Conjugal Partnership Ramírez-Doe.



                        February 24, 2010
            Per Curiam.    On the scheduled trial date, which had been

set only six days earlier, the district court, acting sua sponte,

dismissed this case with prejudice "for lack of prosecution based

on   the   plaintiffs'    non-compliance   with     discovery    deadlines,"

particularly their failure to produce a medical expert report.

Without condoning the plaintiffs' lengthy and unjustified delay in

producing their expert's report, we reluctantly vacate the dismissal

because, in short, the absence of a clearly communicated deadline

for providing expert reports or notice that failing to do so more

promptly could result in dismissal rendered that drastic sanction

an abuse of discretion.      We explain.

            We   review   dismissals   under    Rule   41(b)   for   abuse   of

discretion.      Malot v. Dorado Beach Cottage Assocs., 478 F.3d 40, 43

(1st Cir. 2007).      Although "[c]laims that a court has abused its

discretion in dismissing a case for failure to adhere to discovery

orders or for failure to prosecute have 'not received a sympathetic

ear,'" id. (quoting Damiani v. R.I. Hosp., 704 F.2d 12, 17 (1st Cir.

1983)), we "must fairly balance the court's venerable authority over

case management with the larger concerns of justice, including the

strong presumption in favor of deciding cases on the merits," id.,

and "procedural aspects such as notice," Benitez-Garcia v. Gonzalez-

Vega, 468 F.3d 1, 5 (1st Cir. 2006).           This is the rare case where

the latter concerns outweigh the former.




                                   -2-
          The    plaintiffs'   three-year   delay   in   producing   their

expert's report was sufficiently "extreme" to warrant the harsh

sanction of dismissal,1 see Malot, 478 F.3d at 44 (describing this

court's tendency "to reserve dismissal with prejudice for delays

measured in years"); and they offered no legitimate excuse for that

lengthy delay,2 see Benitez-Garcia, 468 F.3d at 5.         Nevertheless,

other relevant factors weigh heavily against imposing that drastic

sanction here.

          First of all, without condoning the lethargic pace that

this litigation took, the responsibility for that pace was shared,

in large part, by the district court,3 which failed to exercise its

     1
      Although the district court also premised its dismissal
order, more generally, on the plaintiffs' "non-compliance with
discovery orders," it identified no such orders and none are
pointed out by the appellees or apparent in the record. Cf. Ortiz-
Lopez v. Sociedad Espanola De Auxilio Mutuo y Beneficiencia, 248
F.3d 29, 36 (1st Cir. 2001) (affirming dismissal with prejudice
where district court made "explicit and lengthy findings of
egregious discovery abuses"). The plaintiffs did delay in filing
their second amended complaint, but their failure to do so more
promptly was related to their delay in obtaining expert advice, not
to any other discovery violations.
     2
      Other than the absence of a deadline, the plaintiffs' only
excuse was that their original expert took longer than expected to
produce his report and they were therefore forced to retain a new
one. But the plaintiffs apparently gave their original expert no
deadline for producing his report and were not aggressive in
seeking it more promptly.    And even after they retained a new
expert, another year went by without production of an expert
report.
     3
      As in Ortiz-Anglada v. Ortiz-Perez, 183 F.3d 65, 67 n.4 (1st
Cir. 1999), and Malot, 478 F.3d at 45, the defendants here also
share this responsibility. One of the defendants failed to answer
the first amended complaint until more than two months after the
already extended deadline without seeking a further extension;

                                  -3-
"abiding responsibility" under federal and local rules to "take an

active role in case management," Tower Ventures, Inc. v. City of

Westfield, 296 F.3d 43, 46 (1st Cir. 2002), by "issu[ing] orders 'as

soon   as   practicable'   fixing    deadlines   for    the    completion   of

discovery" and other pretrial events.         Torres v. Puerto Rico, 485

F.3d 5, 10 (1st Cir. 2007) (quoting Fed. R. Civ. P. 16(b)); see also

Ortiz-Anglada,    183   F.3d   at   66-67   (vacating   a     dismissal   with

prejudice where the district court failed to impose deadlines

through a scheduling order).        Contrary to federal Rule 16(b), the

district court never issued an initial scheduling order; and,

contrary to the corresponding local rule, it never scheduled or held

a pretrial conference and did not set a trial date until six days

before trial.     Although the court did set a deadline for the

plaintiffs' production of their expert's report, once that deadline

expired without compliance, the court never set a new one even after

the defendants eventually asked the court to do so.

            The court further contributed to delay by taking months

to rule on the parties' motions, which, if promptly decided, would

have moved the case along more expeditiously.               For example, the



another defendant never answered the first amended complaint at
all; and the principal defendant had not filed an answer to the
second amended complaint, or sought more time to do so, by the time
the case was dismissed in March 2009, five months after that
complaint had been filed.    Nor did the defendants bring to the
court's attention the plaintiffs' failure to produce their expert
report by the original deadline of January 30, 2007, or ask the
court to impose another deadline until November 26, 2008, almost
two years later.

                                     -4-
court never ruled on the plaintiffs' April 2007 request for more

time to finalize their expert's report; took six months to rule on

the defendants' motion for a more definite statement; took seven

months to rule on the defendants' motion to dismiss; and never ruled

on the defendants' November 2008 motion to set a deadline for the

plaintiffs to produce their expert's report.

            The court's failure to set deadlines not only contributed

to the case's slow pace but also rendered its ultimate dismissal

order unfair in two respects.          First, there was no "clearly

communicated" deadline for producing the plaintiffs' expert report.

See Velázquez Linares v. United States, 546 F.3d 710, 711-12 (1st

Cir. 2008) (acknowledging "'litigants' unflagging duty to comply

with clearly communicated case-management orders'" (quoting Rosario-

Díaz v. Gonzalez, 140 F.3d 312, 315 (1st Cir. 1998)) but vacating

dismissal order based on "uncertainty" of the missed deadline). Once

the original deadline passed and the court failed to set a new

deadline at both sides' requests, the only operative deadline was

the default deadline contained in Rule 26(a)(2)(C)(i), under which

the plaintiffs' expert report was due "at least 90 days before the

date set for trial or for the case to be ready for trial."       But

since no trial date was set until six days before trial, it was

impossible for the plaintiffs to comply with that 90-day deadline.

Nor did the plaintiffs have any other way of knowing that trial was

imminent.    Despite the relatively long time that had passed since



                                 -5-
the filing of the original complaint, the principal defendant had

not yet answered the second amended complaint.             Nor had pretrial

memoranda been filed or a pretrial conference scheduled or held.

            Second, the plaintiffs were given no express notice of the

consequences    of    failure   to   produce    their   expert   report      more

promptly.   Although the court included boilerplate language in two

orders   stating     that   "[f]ailure   to    comply   will   result   in    the

imposition of severe sanctions and/or dismissal of the complaint

with prejudice for lack of prosecution pursuant to Fed. R. Civ. P.

41(b)," neither of those orders set a deadline for the production

of the plaintiffs' expert report.4            Therefore, those warnings did

not give the plaintiffs "realistic notice" that they faced the harsh

sanction of dismissal with prejudice for failure to produce their

expert report before February 17, 2009, the date when the dismissal

order issued.        Malot, 478 F.3d at 45 (so concluding in similar

circumstances).       Although prior notice of the consequences is not

always required, Pomales v. Celulares Telefónica, Inc., 342 F.3d 44,

50 n.5 (1st Cir. 2003), "in the absence of such a warning, the

propriety of dismissal 'turns to a considerable extent, on the

knowledge which the circumstances show such party may be taken to

have of the consequences of his own conduct.'"             Id. (quoting Link

v. Wabash R.R. Co., 370 U.S. 626, 632 (1962)).           As discussed above,

     4
      Rather, one of them set a deadline for complying with an
order to show cause, which the plaintiffs did on time; and the
other set a deadline for filing the second amended complaint, which
the plaintiffs did, albeit one day after the extended deadline.

                                      -6-
given the lack of notice of the imminence of trial, the plaintiffs

cannot reasonably be deemed to have had notice that their delay in

producing their expert's report would lead to dismissal.

          A further consideration weighing against the propriety of

dismissal with prejudice is the absence of evidence--or even any

contention--that the   defendants were prejudiced by the delay.

Benitez-Garcia, 468 F.3d at 5.   Given that the principal defendant

had not yet answered the second amended complaint and that no

pretrial memoranda had been filed or pretrial conference conducted,

it is doubtful that the defendants (or the court) were any more

ready for trial than the plaintiffs or that, even if the plaintiffs

had produced their expert report more promptly, the trial would have

gone forward on the precipitously announced date.

          A final relevant factor is the absence of evidence that

the district court considered the adequacy of lesser sanctions, id.

at 6, such as continuing the trial to a date certain and imposing

monetary sanctions to compensate the defendants for any harm caused

by the continuance, Esposito v. Home Depot U.S.A., Inc., 590 F.3d

72, 80 (1st Cir. 2009), and then setting short deadlines for

production of the expert's report and any other remaining pretrial

events and strictly enforcing them, Velázquez Linares, 546 F.3d at

711-12.

          In   sum, although the district court was justifiably

unhappy with the plaintiffs' lengthy and unjustified delay in



                                 -7-
producing their expert's report, the court's failure to set a clear

deadline for doing so, to warn the plaintiffs of the consequences

of noncompliance with that deadline, to make findings concerning the

nature   of   the   plaintiffs'   conduct   and   the   prejudice   to   the

defendants, and to consider the adequacy of lesser sanctions renders

the sanction of dismissal with prejudice an abuse of its broad

discretion to manage its caseload.          Accordingly, we vacate the

dismissal and remand for further proceedings. Each party shall bear

its own costs.




                                   -8-
