
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1981                                 CHUANG INVESTMENTS,                  Plaintiff and Defendant-in-Counterclaim-Appellant,                                          v.                                  EAGLE INNS, INC.,                           d/b/a WORCESTER HOWARD INN HOTEL                            AND COLLEGE SQUARE APARTMENTS,                                    Defendant, and                          MARRIOTT FAMILY RESTAURANTS, INC.,                  Defendant and Plaintiff-in-Counterclaim-Appellee,                                          v.                             Y.C. HOSPITALITY, INC., and                                   YING C. CHUANG,                       Defendants-in-Counterclaim-Appellants.                                  ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Nathaniel M. Gorton, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            Robert D. Cohan with  whom James D. Gotz  and Cohan & Rasnick were            _______________            _____________      _______________        on briefs for appellants.            John  O. Mirick with  whom Mirick,  O'Connell, De  Mallie & Lougee            _______________            _______________________________________        was on brief for appellee.                                 ____________________                                    April 9, 1996                                 ____________________                 Per  Curiam.   In March  1993, Chuang  Investments, Inc.                 ___________            filed  suit   in   state  court   against   Marriott   Family            Restaurants,  Inc., alleging  that  Marriott had  violated  a            lease agreement.   Marriott removed the case  to the district            court  and counterclaimed  against Chuang  Investments, Inc.,            Y.C. Hospitality, Inc., and  Dr. Ying C. Chuang.   It appears            that Dr.  Chuang controls  Chuang Investments, Inc.  and that            Y.C.  Hospitality, Inc. is  now dissolved.   Dr.  Chuang then            asserted his own claim against Marriott.                 In October 1993, the  district court entered a discovery            order  requiring that  discovery be  completed by  July 1994.            Marriott filed deposition notices  in February 1994  directed            to Dr.  Chuang and  the  Chuang companies,  which Dr.  Chuang            ignored.   In April 1994, Marriott  filed interrogatories and            document requests,  which also went unanswered,  and a motion            to compel discovery based on the deposition notices.                 Dr.  Chuang then wrote a letter dated April 17, 1994, to            the court saying that he had suffered a gunshot wound and, on            his doctor's advice, needed a year's postponement.  The court            immediately directed Dr. Chuang to file an affidavit from his            doctor  and  scheduled  a  hearing.   In  the  meantime,  the            attorneys for Dr. Chuang and his companies moved to  withdraw            because they  had not been  paid.  Dr. Chuang  did not submit            the requested affidavit.                                         -2-                                         -2-                 At the June  1994 hearing  the district  court told  Dr.            Chuang that  he would  be  given 14  days  more to  file  the            affidavit from  his doctor that  had been requested  in April            1994 and, absent  the affidavit, he  had 30 days  to get  new            counsel.  The  court specifically advised Dr.  Chuang that he            risked default  if  he  did  not secure  counsel,  since  the            corporations had to  be represented by counsel and Dr. Chuang            did not propose to represent himself.                   Thereafter, in June 1994, Dr. Chuang  filed letters--not            affidavits--from  two doctors  saying, respectively,  that he            needed a month's  postponement and six  months' postponement.            He did not obtain new counsel.  In July  1994, Marriott moved            to  dismiss  the claims  against it  and  for defaults  as to            liability on its claims against Dr. Chuang and his companies.            The  grounds stated were the repeated  failures of the Chuang            parties to respond to discovery requests.  Dr. Chuang and his            companies opposed the motions; but for the  next eight months            they took no other action on the case.                 Finally, on May  12, 1995, the  district court filed  an            eight-page memorandum  and order  describing the  sequence of            events  and  granting  Marriott's motion.    Thereafter,  the            Chuang parties, now with new  counsel, sought reconsideration            which was denied.  A hearing was held, damages  were fixed on            the Marriott  claims, and  judgment was entered  disposing of            the  case.  The Chuang  parties now appeal,  raising as their                                         -3-                                         -3-            sole issue  whether the district court  abused its discretion            in granting Marriott's motion.                 On appeal,  the Chuang  parties argue that  Dr. Chuang's            gunshot wound--apparently a knee  injury that was the subject            of surgery in January  1994--prevented him from attending his            deposition.   They say that his  delay in securing affidavits            and new counsel and in responding to discovery was the result            of  mental  and  physical  trauma,  and  some  difficulty  in            speaking English.  We are also told that  the delays were not            egregious and that Marriott was not prejudiced by the delay.                 We think it is clear that Dr. Chuang has not excused his            failure  to comply  with the  court orders  or his  discovery            obligations (the  Chuang brief  does not seek  to distinguish            between   his   position  and   that   of   the  two   Chuang            corporations).  It  may be that  he had a medical  excuse for            not attending the depositions, cf. United States v. DeFrantz,                                           ___ _____________    ________            708 F.2d 310, 312  (7th Cir. 1983); but nothing in  the later            letters from the doctors--or two medical affidavits belatedly            submitted on reconsideration--even begins  to explain why  he            did nothing for almost 18 months.                 Nor is there anything to the claim of lack of prejudice.            There  may be no showing  of special prejudice  (e.g., a lost                                         _______             ____            witness); but,  in a period of  overloaded dockets, prejudice            to   the   court  is   inherent   in   needless  delays   and            postponements.   As  for  Marriott, it  has  been  left  with                                         -4-                                         -4-            litigation  needlessly hanging  over  its head  and has  been            forced to  litigate  about discovery  compliance that  should            have been automatic or  only briefly delayed.  See  Robson v.                                                           ___  ______            Hallenbeck,  No. 95-1595, slip op.  at 8-9 (1st  Cir. Apr. 3,            __________            1996).                 It is true  that default  is a severe  sanction but  the            facts already  cited reveal  a pattern of  non-compliance and            inattention by  Dr.  Chuang.   See  Damiani v.  Rhode  Island                                           ___  _______     _____________            Hosp., 704 F.2d 12, 15-16  (1st Cir. 1983).  For months,  Dr.            _____            Chuang failed to comply  with the twice-issued direction that            he provide  an  affidavit, and  he  failed either  to  secure            counsel as  directed or,  if additional  time was  needed, to            request and justify a postponement.   Nor did Dr. Chuang make            a  serious  effort  to  comply  with  the  discovery  demands            outstanding  against  him  for  almost  18  months  prior  to            default.                   The district court showed considerable patience in  this            case.  It provided a warning and a second chance, and it then            waited for a substantial  period.  In ordering  the dismissal            and  default, the court  wrote a careful  explanation of what            had  happened and why the  court was entering  its order.  We            think that the remedy  was well within the discretion  of the            district  court, Damiani, 704 F.2d at 13, and that nothing in                             _______            the submissions filed on reconsideration required it to alter            its position.                                           -5-                                         -5-                 Affirmed.                 _________                                         -6-                                         -6-
