                  Not for Publication in West's Federal Reporter
                 Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                          For the First Circuit

No. 04-1234

                            JUDITH DIAZ-SANTOS,

                           Plaintiff, Appellant,

                                        v.

                        DEPARTMENT OF EDUCATION
              OF THE COMMONWEALTH OF PUERTO RICO, ET AL.,

                          Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                    FOR THE DISTRICT OF PUERTO RICO

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


                                     Before

                          Boudin, Chief Judge,
                      Stahl, Senior Circuit Judge,
                     and Torruella, Circuit Judge.




     Darlena H. Connick Waska and Law Offices of Pedro E. Ortiz
Alvarez on brief for appellant.
     Gary H. Montilla and Quiñones & Sánchez on brief for
appellees.


                               August 13, 2004
       Per curiam.    Plaintiff-appellant Judith Díaz-Santos appeals

from    the   district     court’s    dismissal      of   her    employment

discrimination claim for failure to prosecute.                We affirm the

dismissal.

                              I. BACKGROUND

       Díaz-Santos, a teacher employed by the Department of Education

of the Commonwealth of Puerto Rico (DOE), initiated a complaint

with the Equal Employment Opportunity Commission during the 1991-

1992 school year.     The gist of her complaint was that she suffered

from a mental disability that prevented her from working directly

with children.      The matter concluded with a negotiated settlement

agreement providing certain accommodations under the Americans With

Disabilities Act, (ADA)), 42 U.S.C. § 12101 et seq.             Accordingly,

Díaz-Santos was reassigned to the Superintendent’s office.

       On August 26, 1999, Díaz-Santos filed a complaint alleging

employment discrimination in violation of the ADA and Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.                  The

complaint named as defendants the DOE and Victor Fajardo, the

Secretary of the DOE, for allegedly reassigning her in violation of

the    settlement    agreement,   subjecting   her   to   a   hostile   work

environment, and refusing to promote her and/or consider her for

positions for which she was qualified.          Díaz-Santos amended her

complaint in February, 2000.

       On July 6, 2000, defendants moved to dismiss the amended


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complaint without prejudice.       On October 31, the district court

allowed the motion in part, dismissing Díaz-Santos’s claims of

discrimination under Title I of the ADA.         The court, however,

permitted the claim of retaliation under Title V of the ADA to

proceed.

     On April 4, 2002, defendants sought an interlocutory appeal of

the district court’s decision, which they voluntarily dismissed

several months later.      On December 27, 2002, after a number of

pretrial    conferences,   trial   was   set   for   March    17,   2003.

Thereafter, the district court stated in an order dated January 15,

2003, that “[t]his case seems to be a very good candidate for a

sensible settlement disposition.     Parties [are] ordered to explore

alternatives and report to the court within 30 days.         Case remains

firmly set for trial in March.”

     In an order dated March 3, 2003, after setting forth the terms

of a tentative settlement agreement, the court stated:

     [S]hould the case not be finally settled on or before
     March 21, 2003, then trial will go forward either during
     the last week of March or the first week of April . . .
     The parties shall be given twenty-four hours notice to
     begin trial, and shall be prepared to proceed on that
     notice or face dismissal for want of prosecution.

That trial date was reiterated as "firm and final" in subsequent

orders.    During the months of March and April of 2003, the district

court continued to conduct settlement conferences.

     On April 3, the court again stated in a procedural order that

it was in the parties’ interest to reach settlement.         It noted,

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       The defendant has been willing to consider reasonable
       terms for settlement. However, the plaintiff continues
       to have unrealistic expectations about what she may be
       entitled to under the law.     Plaintiff’s counsel will
       consult with his client again and review the possibility
       of, as well as the terms of, settlement. He shall notify
       the court . . . of the status of settlement by April 18,
       2003.

       On    May   1,   Díaz-Santos’s        counsel   moved   to       withdraw

representation on the ground that Díaz-Santos “can’t, has not and

will not, in any way help, aid, abet or assist counsel in a

decisive, practicable and sound defense of her best interests.” On

June 22, 2003, the court allowed the motion and permitted Díaz-

Santos until July 23, 2003, to obtain new counsel and have him or

her make an appearance.        It set that date as a “final term,” and

threatened that should Díaz-Santos not comply, “the case will be

dismissed.”

       On July 23, a “Special Appearance to Request an Extension of

Time to Retain Counsel” was filed on Díaz-Santos’s behalf.                     It

requested an additional forty-five days for new counsel to evaluate

the case and obtain relevant records from Díaz-Santos’s prior

counsel.      No further submissions were filed on behalf of Díaz-

Santos, and the district court took no action until September 29,

2003   –    sixty-six   days   after   the   initial   deadline     –   when   it

dismissed Díaz-Santos’s claims for lack of diligent prosecution.

It stated in its order: “The court has been patient to the extreme

in dealing with this case.         For months now, Plaintiff has been

unable or unwilling to resolve this case by settlement and/or

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secure legal representation as previously ordered.”          Judgment was

entered that day.

     On December 18, 2003, the court denied reconsideration of its

order and judgment, and Díaz-Santos filed a timely appeal.

                             II. DISCUSSION

     A district court's inherent powers to sanction parties for

litigation abuses include the power to act sua sponte to dismiss a

suit for failure to prosecute.      Chambers v. NASCO, Inc., 501 U.S.

32, 43 n.8 (1991); Pomales v. Celulares Telefonica, Inc., 342 F.3d

44, 48 (1st Cir. 2003).      We review such a dismissal pursuant to an

abuse of discretion standard.     Bachier-Ortíz v. Colón-Mendoza, 331

F.3d 193, 194 (1st Cir. 2003).           "We do not lightly disturb a

district court's ruling -- but 'dismissal should not be viewed

either as a sanction of first resort or as an automatic penalty for

every failure to abide by a court order.'"        Id. at 194-95 (quoting

Young v. Gordon, 330 F.3d 76, 81 (1st Cir. 2003)).

     Díaz-Santos claims three points of error: that the district

court abused its discretion in dismissing the case for failure to

prosecute; that it abused its discretion in denying her motion for

reconsideration of that order; and that the court erred by allowing

defendants’ motion to dismiss her claim under Title I of the ADA.

We review each argument in turn.

A.   Dismissal for failure to prosecute

     First,   we   address    whether    the   district   court   erred   in


                                   -5-
dismissing Díaz-Santos’s complaint for failure to prosecute. In so

doing, we consider the totality of the circumstances.           Bachier-

Ortiz, 331 F.3d at 195. Of particular importance are whether Díaz-

Santos prosecuted her claims diligently until the time when she

parted ways with her counsel; whether the district court provided

Díaz-Santos fair warning of its inclination to employ such a severe

sanction; and whether the delay she caused constituted misconduct

"sufficiently   extreme    to   justify   dismissal   with   prejudice."

Pomales, 342 F.3d at 49.

     Díaz-Santos does not fare well under any of these factors.

First, her conduct prior to her original counsel’s withdrawal can

hardly be characterized as diligent. The district court repeatedly

indicated its frustration as to the parties’ lack of preparedness,

their delays as trial approached, and Díaz-Santos’s failure to

settle the case.1   The court noted that Díaz-Santos “continue[d] to

have unrealistic expectations” as to the strength of her case after

several settlement conferences.     This observation was confirmed by

Díaz-Santos’s former counsel in its motion to withdraw.

     Second, the district court provided unambiguous notice of its

intent to dismiss the case should Díaz-Santos not comply with its

June 22, 2003 order permitting Díaz-Santos one month to obtain new

counsel.   Indeed, the court had warned that it would not hesitate


     1
     We note that defendants appear to have some culpability as
well in dilatory conduct occurring prior to the settlement
conferences.

                                   -6-
to dismiss the case for failure to prosecute as early as March 3,

when it set forth the terms of a tentative settlement agreement.

       Third, we see no reason to second-guess the district court’s

determination     that    Díaz-Santos’s   delay   constituted     sufficient

misconduct to warrant dismissal with prejudice.             Initially, the

court’s June 22 order was not heeded, at least not fully: while new

counsel did make an appearance, it was only conditional in nature,

and sought additional time in which to determine whether it would

take   on   the   representation.     Then,   Díaz-Santos    far    exceeded

counsel's requested extension without taking action before the

district court finally dismissed her complaint.                 Under these

conditions, we think the court demonstrated both ample patience and

fairness.

       Díaz-Santos argues that her new counsel lacked documents that

were    necessary    to    assess   the   case    and   provide     adequate

representation.     Even assuming that the new counsel was acting in

good faith, there appears to be no viable excuse for allowing

sixty-six additional days to pass in total silence after the filing

of the notice of special appearance.        Particularly in light of the

district court’s emphasis of the finality of the July 23 deadline

for obtaining new counsel, it remained Díaz-Santos’s duty to inform

the court of any obstacles and seek an additional continuance if




                                    -7-
one was required.2      Although the remedy of dismissal with prejudice

was, perhaps, somewhat harsh, it did not exceed the district

court's discretion.

B.    Motion for reconsideration

      We   review   a    district   court's     denial   of   a    motion    for

reconsideration     under    Fed.   R.   Civ.    P.   59(e)   for    abuse    of

discretion.   Rivera v. P. R. Aqueduct & Sewers Auth., 331 F.3d 183,

192 (1st Cir. 2003).        Here, Díaz-Santos contends that defendants

were also culpable in the delays and reiterates her argument that

she   did not receive important documents until after the July 23

deadline had passed.        Although there is some indication in the

record that defendants, too, engaged in foot-dragging, it seems to

be limited to the early part of the litigation.                   The district

court's order was based, inter alia, on Díaz-Santos's failure to

comply with a deadline for securing new counsel –- conduct that has

no relation to any action of the defendants -- and it is on that

basis that we affirm the district court's judgment.

C.    Title I appeal

      Lastly, we consider Díaz-Santos’s argument that the court

erred in dismissing her claim under Title I of the ADA based upon

her failure to allege sufficient facts to establish a prima facie

case of disability pursuant to 42 U.S.C. § 12101(2).                We do not



      2
     We do not suggest that had Díaz-Santos moved for additional
time, the district court would have been obliged to allow it.

                                     -8-
reach the merits of this issue, however, because it is beyond the

scope of this appeal.

      Normally, a notice of appeal that designates the final

judgment encompasses not only that judgment, but also all earlier

interlocutory    orders    that     merge      in    the    judgment.        John's

Insulation, Inc. v. L. Addison & Assocs. Inc., 156 F.3d 101, 105

(1st Cir. 1998)(cases cited therein).                  In John's Insulation,

however,   we   joined    the    majority      of   other   circuit     courts   in

recognizing     an   exception      to    that      rule    and    holding      that

interlocutory rulings do not merge into a judgment of dismissal for

failure to prosecute, and thus are unappealable.                  Id. at 107.

     Because we affirm the district court's dismissal for failure

to prosecute, we do not address the dismissal of the Title I claim

further.   "[I]f a complaint was correctly dismissed for failure to

prosecute, the fact that earlier interlocutory rulings may have

been erroneous is irrelevant."           Id.

                                III. CONCLUSION

     For the foregoing reasons, we AFFIRM the district court's

dismissal.




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