
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                For The FIRST CIRCUIT                                 ____________________        No. 93-1038                                  HERBERT H. NAIDICH,                                Plaintiff, Appellant,                                          v.                      THE MITRE CORPORATION & BARRY M. HOROWITZ,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                              Torruella, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Herbert H. Naidich on brief pro se.            __________________            David  J. Kerman, Herbert L. Holtz and Ropes &  Gray, on brief for            ________________  ________________     _____________        appellees.                                 ____________________                                    June 11, 1993                                 ____________________                 Per  Curiam.   The appellant,  Herbert  H. Naidich,  has                 ___________            appealed  the denial  of his  "motion to  reopen" a  district            court order dismissing  his lawsuit for failure  to prosecute            and failure to attend a court session.  In the absence of any            designation to the  contrary, we treat the  court's dismissal            as  a dismissal with prejudice.  Velazquez-Rivera v. Sea-Land                                             ________________    ________            Serv., Inc., 920  F.2d 1072, 1075 (1st Cir.  1990).  Although            ___________            such a dismissal is a harsh sanction, we conclude that it was            within the court's permissible discretion in this case.                 The gist of the matter is briefly stated.  On October 7,            1992, two  years after the  start of this  age discrimination            suit, defendants  filed  a  substantial  motion  for  summary            judgment.  The district court  on October 13, 1992, issued an            order setting a scheduling conference for October 23 pursuant            to Fed.  R. Civ.  P. 16(b) and  D. Mass. Loc.  R. 16.1.   The            order specified that  its provisions relating to  preparation            for the conference  were of the utmost importance.   By cross            reference, it  noted that sanctions  including dismissal were            authorized  for  failure   to  comply.    An   opposition  to            defendants'  motion  was  due under  the  governing  rules by            October 21.1                                            ____________________            1.  We reject Naidich's suggestion that the dismissal in this            case was  pursuant to D. Mass.  Loc. R. 41.1(b), as  the case            was not on  any "dismissal calendar,"  as referenced in  that            rule.                 Naidich  neither appeared  at the  scheduling conference            nor filed a timely opposition to the summary judgment motion.            When Naidich did not appear, the district court dismissed the            case.  Naidich then filed a motion to reopen, but he  did not            adequately explain  his  failure  to  attend  the  scheduling            conference whose importance  had been plainly stressed.   Nor            did  he  adequately  explain  his failure  to  file  a timely            opposition to  the motion for  summary judgment.   It appears            that Naidich's failure  to appear  may have  been related  to            disagreements  with  defense  counsel about  the  preliminary            steps  but  there  is  no  doubt that  Naidich  knew  of  the            scheduled conference and disregarded that obligation.                 There  is ample  authority  for  dismissal  where  court            ordered  deadlines  or  other   obligations  are  ignored  by            litigants, Fed.  R. Civ. P.  41(b), Link v. Wabash  R.R., 370                                                ____    ____________            U.S. 626, 630-31  (1962), and case precedent  sustaining such            dismissals as well.  Figueroa  Ruiz v. Alegria, 896 F.2d 645,                                 ______________    _______            649 (1st Cir.  1990) (dismissal where plaintiffs  were guilty            not only of simple delay but of disobedience of a court order            as well); Zavala  Santiago v. Gonzalez Rivera,  553 F.2d 710,                      ________________    _______________            713 (1st  Cir. 1977) (dismissal where  plaintiffs disregarded            court-ordered deadlines and  counsel failed to appear  at the            pretrial conference).                 Equally  important, Naidich did  not seek leave,  at the            time  he sought to  reopen, to file the  tardy opposition.  A                                         -3-            court  asked   to  forgive   procedural  defaults,   and  the            consequent waste of its time and resources, ought at the very            least be assured  that there is  some purpose to  reinstating            the case.  Evennow we think no such purpose hasbeen made out.                 Indeed, because the sanction is a severe one and Naidich            is proceeding  pro se, we  might find  this a  close case  if            anything  filed by Naidich in the district court demonstrated            a substantial  defense to the  summary judgment motion.   But            even now on appeal -- and appeal is too late -- Naidich makes            only  conclusory and unsupported  assertions that, except for            the  defendants'  description  of  the  company,  every other            statement   is   "untrue"  and   defendants'   documents  are            "forgeries"  and  "deceptions."     Given  defendants'  quite            thorough  and well-documented  affidavits  -- which  strongly            indicate  that Naidich's discharge was due to performance and            not  age  --  Naidich's  epithets  are of  no  weight.    See                                                                      ___            generally Teamsters,  Chauffeurs  Local No.  59 v.  Superline            _________ _____________________________________     _________            Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992) (in order to set            ___________            aside a judgment,  a movant must at least  establish, by more            than  a purely  conclusory allegation,  that  it possesses  a            potentially meritorious claim).                 There  was no abuse  of discretion either  in dismissing            this lawsuit or  in denying the motion to  reopen.  The order            of the  district court  is, therefore,  affirmed.   Naidich's                                                    _________            "motion to  compel," filed in  this court and which  asks for                                         -4-            the imposition of sanctions, is denied.                                            _______                                         -5-
