
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 94-2024                              JAMES BENJAMIN, JR., M.D.,                                Plaintiff, Appellant,                                          v.                     THE AROOSTOOK MEDICAL CENTER, INC., ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                            ____________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            James P.  Chandler with whom Chandler & Robertson was on brief for            __________________           ____________________        appellant.            Christopher  D.  Nyhan with  whom Elizabeth  J.  Wyman and  Preti,            ______________________            ____________________      ______        Flaherty, Beliveau & Pachios were on brief for appellees.        ____________________________                                 ____________________                                    June 19, 1995                                 ____________________                      STAHL, Circuit  Judge.  This appeal  arises from an                      STAHL, Circuit  Judge.                             ______________            action brought by Dr. James Benjamin, Jr., and several of his            patients  against  the  Aroostook  Medical  Center  ("TAMC"),            alleging  the  racially-motivated  termination of  Benjamin's            staff  privileges.1    The   district  court  dismissed   the            patients'  claims,  holding  that  they  lacked  standing  to            challenge TAMC's actions.   Subsequently, the court dismissed            Benjamin's claims with prejudice, explaining  that Benjamin's            counsel had failed to  make himself available for proceedings            and  to respond  to notices  from the court.   We  affirm the            dismissal  of the  patients' claims  and modify  the district            court's  order   dismissing  Benjamin's  claims  so  that  it            operates without prejudice.                                          I.                                          I.                                          __                                      Background                                      Background                                      __________                      On February  12,  1992, Benjamin,  a  physician  of            African-American descent, submitted  a completed  application            for  staff   privileges  to  TAMC.    TAMC  did  not  approve            Benjamin's  application, but  instead, on  October  12, 1992,            granted  him  a  "provisional  appointment."    Benjamin  had            licenses  to practice  medicine  in California,  Connecticut,            Minnesota and Maine, and had received a certification in  the                                            ____________________            1.  In addition  to  TAMC, the  complaint designates  several            named and unnamed TAMC  officers, agents, employees and staff            physicians as defendants.   For purposes of this  opinion, we            will refer to all defendants collectively as "TAMC."                                          -2-                                          2            "Specialty of  Internal Medicine" from the  American Board of            Internal Medicine.    TAMC, which is located in Presque Isle,            Maine, has approximately forty-five physicians on its medical            staff  and  it  does   not  allow  physicians  without  staff            privileges  to treat patients at its facilities.  At the time            of  Benjamin's  appointment,  TAMC  had  no  African-American            physician on its staff.                      On October 11, 1993, TAMC's Medical Staff Executive            Committee   recommended   that   TAMC  terminate   Benjamin's            provisional staff  privileges.  Subsequently,  on January  7,            1994, Benjamin  and seventeen of his  patients commenced this            action pro se  in federal district court  alleging that TAMC,                   ___ __            through  discriminatory  policies and  practices,  had denied            Benjamin  staff  privileges  on  account of  his  race.    On            February  11, 1994,  the district  court issued  a scheduling            order setting forth discovery deadlines and an expected trial            date  for  August  1994.    The  district court  amended  the            scheduling order twice to extend the time, first for Benjamin            and then for TAMC,  to designate expert witnesses.   On March            4,  1994, TAMC filed a motion to dismiss the patients' claims            for  lack  of standing.    After  Benjamin and  the  patients            responded through newly obtained counsel,  the district court            granted  the  motion,  finding  that  the  patients  had  not            sufficiently alleged  that they had  suffered any "injury-in-            fact" as a result of the hospital's actions.                                         -3-                                          3                      On  April  29, 1994,  Benjamin's counsel  sought to            withdraw,  citing  irreconcilable differences  with Benjamin.            The district court granted  the motion, pending an appearance            by replacement  counsel (or by Benjamin pro  se).  On May 31,                                                    ___  __            1994, Benjamin's counsel renewed  the motion to withdraw, and            the  district court ordered Benjamin to show cause why he had            not obtained  new counsel.   On June  8, 1994,  TAMC filed  a            motion to dismiss, arguing that  Benjamin had failed to  make            himself available for a  deposition and had obstructed TAMC's            efforts  to complete discovery.  Two days later, TAMC filed a            second motion to dismiss and/or for summary judgment, arguing            that Benjamin's claims  failed on  the merits.   On June  16,            1994, James P. Chandler of Washington, D.C., entered a notice            of appearance on behalf  of Benjamin and simultaneously moved            to enlarge the time  to respond to TAMC's pending  motions to            dismiss.   The  district  court granted  this motion,  giving            Benjamin and his new counsel until July 15, 1994, to respond.                      On July 7, 1994,  Chandler became seriously ill and            was  hospitalized in  Washington, D.C.   At  the time  of his            hospitalization, Chandler had not  responded to TAMC's motion            nor consulted  with Benjamin's former  counsel.  On  July 15,            1994,  a law  clerk  for  Chandler  moved for  an  additional            enlargement of time on  account of Chandler's sudden illness.            The  district court  denied  the motion  in  light of  TAMC's            objection  and   because  it  was  improperly   filed  by  an                                         -4-                                          4            individual without authority  to practice  before the  court.            On  August  2,  1994,   Chandler  filed  another  motion  for            enlargement  of  time, which  the  district  court denied  by            endorsement.                      On  August  17, 1994,  the  district  court held  a            hearing on TAMC's pending motions to dismiss at which neither            Chandler  nor   Benjamin  appeared.     Noting   that,  since            Chandler's  appearance  on  Benjamin's  behalf,  Chandler had            neither  made  himself  available  for  any  proceedings  nor            responded  to  notices from  the  court,  the district  court            granted TAMC's motion to dismiss with prejudice.  This appeal            followed.                                         II.                                         II.                                         ___                                      Discussion                                      Discussion                                      __________                      We address two issues on appeal.  First, Benjamin's            patients contest the district  court's finding that they lack            standing  to  assert  their  claims against  TAMC.    Second,            Benjamin argues that his  counsel's sudden and severe illness            should  excuse  his failure  to  make  himself available  and            respond to notices from the court.            A.  The Patients' Claims            ________________________                      At  oral  argument, counsel  for  the  patients and            Benjamin asserted that the patients' standing argument rested                                         -5-                                          5            primarily  on 42 U.S.C.    1981.2  The  patients contend that            they have  standing  because TAMC's  actions interfered  with            their    1981-protected  right to  contract with  Benjamin, a            minority  physician.    TAMC,  however,  maintains  that  the            patients themselves have no legally cognizable injury and, at            best, only assert the third-party rights of Benjamin.   After            careful review,  we conclude  that, on  the facts alleged  in            this case, the patients do not have standing.                        The burden of alleging facts necessary to establish            standing  falls   upon  the  party  seeking   to  invoke  the            jurisdiction of the federal court.  Warth v. Seldin, 422 U.S.                                                _____    ______            490,  518 (1975); United States  v. AVX Corp.,  962 F.2d 108,                              _____________     _________            114 (1st  Cir. 1992).  We  review de novo  a district court's                                              __ ____                                            ____________________            2.  42 U.S.C.   1981 provides in relevant part:                      (a) Statement of equal rights                          Statement of equal rights                           All persons  within the jurisdiction                      of the United States shall have  the same                      right in  every  State and  Territory  to                      make  and enforce  contracts, to  sue, be                      parties, give  evidence, and to  the full                      and   equal  benefit  of   all  laws  and                      proceedings for the  security of  persons                      and  property  as  is  enjoyed  by  white                      citizens . . . .                      (b) "Make and enforce contracts" defined                           "Make and enforce contracts" defined                            For  purposes  of this  section, the                      term   "make   and   enforce   contracts"                      includes    the   making,    performance,                      modification,    and    termination    of                      contracts,  and  the  enjoyment   of  all                      benefits,    privileges,     terms    and                      conditions     of     the     contractual                      relationship.                                         -6-                                          6            standing   determination,  employing  an  approach  that,  in            practice,  differs little from that used to review motions to            dismiss under Fed. R. Civ. P.  12(b)(6).  AVX Corp., 962 F.2d                                                      _________            at 114.  In conducting our review, we are obliged  to "accept            as true all  material allegations of the complaint, and . . .            construe the  complaint in  favor of the  complaining party."            Warth, 422 U.S. at 501; see also Adams v. Watson 10 F.3d 915,            _____                   ___ ____ _____    ______            919 (1st Cir. 1993).                      "Standing  is   the  determination  of   whether  a            specific person is  the proper  party to  bring a  particular            matter to  the Court  for adjudication."   Erwin Chemerinsky,            Federal  Jurisdiction    2.3,  at 48  (1989).   The  "inquiry            _____________________            involves  both  constitutional  limitations on  federal-court            jurisdiction and  prudential  limitations on  its  exercise."            Warth,  422  U.S.  at 498;  see  also  Vote  Choice, Inc.  v.            _____                       ___  ____  __________________            DiStefano, 4 F.3d 26, 36 (1st Cir. 1993).  The constitutional            _________            limitations  derive from  the  language of  Article III  that            provides, inter  alia,  that  federal  courts  shall  resolve                      _____  ____            disputes  involving  only  "Cases" or  "Controversies."   AVX                                                                      ___            Corp.,  962 F.2d at 113.   The Supreme  Court has interpreted            _____            this  general constitutional  proscription  as setting  forth            three fundamental requisites of standing  that every litigant            invoking the jurisdiction of the federal courts must possess:            (1)  injury-in-fact --  an  invasion of  a  legally-protected            interest that is both concrete and particularized, and actual                                         -7-                                          7            or imminent; (2) causation; and (3) redressability.  Lujan v.                                                                 _____            Defenders of Wildlife, 504  U.S. 555, 560-61 (1992); Libertad            _____________________                                ________            v. Welch, No.  94-1699, slip op. at 10-11 (1st  Cir. Apr. 28,               _____            1995).                      Several   prudential  considerations   also  infuse            standing   determinations.     These   considerations,  which            militate  against standing,  principally concern  whether the            litigant (1)  asserts  the rights  and interests  of a  third            party and not his or  her own, (2) presents a claim  arguably            falling  outside  the  zone  of interests  protected  by  the            specific law  invoked, or (3) advances  abstract questions of            wide public significance essentially amounting to generalized            grievances more appropriately addressed to the representative            branches.   Libertad, slip op. at 11.  Consideration of these                        ________            prudential factors enables  the federal  judiciary "to  avoid            deciding questions of broad social import where no individual            rights would be vindicated and to limit access to the federal                                       ___            courts to  those litigants best suited to assert a particular                                       ____ ______            claim."  Gladstone, Realtors v. Village of Bellwood, 441 U.S.                     ___________________    ___________________            91, 99-100 (1979) (emphasis added); see also Conservation Law                                                ___ ____ ________________            Found.  of New England v.  Reilly, 950 F.2d  38, 41 (1st Cir.            ______________________     ______            1991).                      For purposes  of this  appeal, we need  not resolve            whether the  patients have met  the constitutional requisites            of standing,  rather we  believe that, because  the patients'                                         -8-                                          8            allegedly  infringed-upon  rights fall  outside what  we have            previously  found to  be protected  by    1981,  the patients            essentially assert the third-party rights of Benjamin  rather            than their  own.  Furthermore, because the  patients have not            satisfied the  minimum requirements  for an exception  to the            prudential rule against third-party standing, and because the            reasons  underlying the rule obtain  in this case, we believe            the district court did not err in dismissing their claims.                       Whether  a party  is asserting  its own  rights, as            opposed  to seeking to vindicate the rights of a third party,            is often  a  difficult question.    See generally,  Henry  P.                                                ___ _________            Monaghan, Third Party Standing, 84 Colum. L. Rev. 277 (1984).                      ____________________            Though  the patients  claim  a direct  infringement of  their            right to contract with a  minority physician, at its essence,            we believe  their claim is  more accurately  described as  an            assertion  of Benjamin's third-party  right to a race-neutral            review process.                      Primarily,  the patients'  allegedly infringed-upon            rights  fall   outside  what  we,  and   other  courts,  have            previously found to be protected by 42 U.S.C.    1981.3  Most                                            ____________________            3.        Although  standing in  no way  depends on                      the merits of the  plaintiff's contention                      that particular conduct is illegal, e.g.,                                                          ____                      Flast v. Cohen,  392 U.S. 83, 90  (1968),                      _____    _____                      it often turns on  the nature and  source                      of the claim asserted. . . . [T]he source                      of  the  plaintiff's   claim  to   relief                      assumes critical  importance with respect                      to the prudential rules of standing that,                                         -9-                                          9            cases  brought  pursuant to     1981  involve allegations  of            discriminatory  conduct  prompted  by  hostility  towards the            plaintiff's race.  See Dartmouth Review v. Dartmouth College,                               ___ ________________    _________________            889 F.2d  13, 17  (1st  Cir. 1989).   Occasionally,  however,            courts  have  allowed  cases  to proceed  where  a  plaintiff            challenges  a discriminatory  action  motivated by  animosity            towards another  person's race.   See,  e.g., Des Vergnes  v.                                              ___   ____  ___________            Seekonk Water  Dist.,  601 F.2d  9,  13-14 (1st  Cir.  1979);            ____________________            Winston v.  Lear-Siegler, Inc.,  558 F.2d 1266,  1268-70 (6th            _______     __________________            Cir. 1977); DeMatteis  v. Eastman  Kodak Co.,  511 F.2d  306,                        _________     __________________            311-12 (2d  Cir.), modified  on other grounds,  520 F.2d  409                               ________  __ _____ _______            (1975).  Such cases have generally been limited to situations            in  which  the  plaintiff  was  the  direct  target  of   the            defendant's discriminatory action.  In   Des   Vergnes,   for                                                     _____________            example,  a water  district acted  directly against  the non-            minority developer  by  refusing the  developer's request  to            include  a tract  of  land proposed  for low-income  minority            housing in the water district.  Des Vergnes, 601 F.2d at  11-                                            ___________            12.   Consequently, we  held that the  non-minority developer                                            ____________________                      apart    from    Art.    III's    minimum                      requirements,  serve to limit the role of                      the courts in resolving  public disputes.                      Essentially,  the  standing  question  in                      such cases, is whether the constitutional                      or statutory provision on which the claim                      rests  properly  can  be   understood  as                      granting  a  person  in  the  plaintiff's                      position a right to judicial relief.            Warth, 422 U.S. at 500.             _____                                         -10-                                          10            had standing under    1981 even  though the water  district's            alleged  discriminatory  action  was  motivated  by animosity            towards  the race of the prospective tenants and not the race            of the developer.   Id. at  14.  Other  cases most  typically                                ___            involve a  discriminatory  employment action  (e.g.,  firing)                                                           ____            taken by an employer directly against a non-minority employee            because of that employee's  association with, or advocacy of,            minorities.  See, e.g., Alizadeh v. Safeway Stores, Inc., 802                         ___  ____  ________    ____________________            F.2d 111,  114 (5th Cir. 1986) (white plaintiff fired because            married to minority spouse); Winston, 558 F.2d at 1270 (white                                         _______            employee fired for advocating rights of minority); cf. Phelps                                                               ___ ______            v. Wichita  Eagle-Beacon, 886  F.2d 1262, 1266-67  (10th Cir.               _____________________            1989)  (white  lawyer  had  standing  under     1981  to  sue            newspaper that  published allegedly false articles  about him            because he represented minorities).                      Here, the  patients  challenge an  action  by  TAMC            neither motivated by animosity towards the patients' race nor            specifically  targeted  at, or  taken  directly against,  the            patients.    The patients'  alleged injury  arises only  as a            derivative  effect of  TAMC's administration  of its  general            policies governing  the grant  and review of  physician staff            privileges.  Cf.  Department of Labor  v. Triplett, 494  U.S.                         ___  ___________________     ________            715, 720 (1990)  (standing may exist where  "enforcement of a            restriction against  a litigant  prevents a third  party from                                   ________            entering into  a relationship with the  litigant (typically a                                         -11-                                          11            contractual  relationship), to  which the  third party  has a            legal entitlement") (emphasis added); see generally Monaghan,                                                  ___ _________            84  Colum.  L. Rev.  at  306-11  (discussing the  distinction            between  direct  and  indirect  interference  with  right  to            interact as a  limit on standing).  The direct injury in this            case   is  TAMC's   alleged   discriminatory  revocation   of            Benjamin's staff privileges, which TAMC directed specifically            at Benjamin on account of Benjamin's race.                      Furthermore, the patients do not allege that TAMC's            action  completely precluded  them from  receiving treatment.            TAMC has other physicians on staff who practice in Benjamin's            specialty,  and the  patients  do not  allege  that TAMC  has            refused to admit them as patients.  Finally, neither does the            fact  that  Benjamin  cannot   treat  the  patients  at  TAMC            completely disrupt the  patients' relationship with Benjamin:            TAMC's revocation  of  Benjamin's staff  privileges does  not            preclude  him  from treating  the  patients  outside of  TAMC            facilities.    Accordingly,   because  the  patients'  injury            occurs,  if at  all, only  as a  derivative effect  of TAMC's            action against Benjamin, we hold that, in attempting to bring            their  claims under     1981, they  are asserting  Benjamin's            third-party  rights,  and  not  their  own.    See  Mackey v.                                                           ___  ______            Nationwide Ins.  Co., 724  F.2d 419,  421-22 (4th  Cir. 1984)            ____________________            (insurance  agent challenging  insurer's redlining  policy is            asserting  third-party rights  of homeowners);  Capital Nat'l                                                            _____________                                         -12-                                          12            Bank  of  N.Y. v.  McDonald's Corp.,  625  F. Supp.  874, 882            ______________     ________________            (S.D.N.Y.  1986) (non-minority lender  to minority franchisee            asserts  only third-party  rights  of minority  franchisee in            challenge to franchisor's alleged  discriminatory termination            of franchisee's contract).                      While  the  general  proscription   on  third-party            standing is not absolute,  Powers v. Ohio, 499 U.S.  400, 410                                       ______    ____            (1991); Warth, 422 U.S. at 500-01, no exception to the ban is                    _____            applicable in this case.  In Powers, the Supreme Court stated                                         ______            that  an individual seeking to  assert the rights  of a third            party   must,  as  a  prerequisite,  satisfy  three  specific            criteria:  "The litigant  must  have suffered  an 'injury  in            fact,' . . . ; the litigant must have a close relationship to            the third party; and  there must exist some hindrance  to the                                        ____ _____ ____ _________            third  party's ability to protect his  or her own interests."            Powers, 499 U.S. at 411 (citations omitted) (emphasis added);            ______            see  also Playboy Enters. v. Public Serv. Comm'n of P.R., 906            ___  ____ _______________    ___________________________            F.2d 25, 37-39 (1st Cir.), cert. denied, 498 U.S. 959 (1990).                                       _____ ______                      Assuming arguendo that  the patients could  satisfy                               ________            the  first two criteria,  they clearly fail  to establish the            third.   No hindrance exists  in this case  that prevents the            third  party, Benjamin,  from asserting his  own rights.   In            order  to satisfy this criterion, a party must show that some            barrier  or   practical  obstacle  (e.g.,   third  party   is                                                ____            unidentifiable,  lacks  sufficient interest,  or  will suffer                                         -13-                                          13            some  sanction)  prevents  or  deters the  third  party  from            asserting  his or her own  interest.  See,  e.g., Powers, 499                                                  ___   ____  ______            U.S. at 414-15 (lack  of economic incentive); Clifton Terrace                                                          _______________            Assocs. v. United Technologies Corp., 929 F.2d 714, 721 (D.C.            _______    _________________________            Cir. 1991)  (no barriers  because, inter alia,  third parties                                               _____ ____            are plainly identifiable); Playboy Enters., 906 F.2d at 37-38                                       _______________            (threat of  official sanction)   Here,  the injured party  is            clearly  identified  and  has  sufficient   interest  in  the            litigation (e.g., professional reputation) to pursue (and, in                        ____            fact,  has pursued)  the action.   Accordingly,  the patients            have not met the minimum requisites for third-party standing.                      Furthermore,  our holding,  that Benjamin,  and not            the  patients, is the proper party to bring an action against            TAMC,  is   consistent  with  the  policies   underlying  the            prudential rule against third-party standing.   See Singleton                                                            ___ _________            v.  Wulff, 428 U.S. 106,  114 (1976) (general proscription on                _____            third-party  standing may  be  avoided where  the "underlying            justifications are  absent").   Indeed, one of  the principal            justifications for the rule is that it assures that the party            bringing the litigation will  be the "most effective advocate            of the rights at  issue."  Duke Power Co.  v. Carolina Envtl.                                       ______________     _______________            Study Group, Inc., 438 U.S. 59, 80 (1978); see also Secretary            _________________                          ___ ____ _________            of State  v. Joseph H.  Munson Co., 467 U.S.  947, 955 (1984)            ________     _____________________            (rule  against third-party  standing  guarantees that  issues            essential   to  litigation  will  be  "concrete  and  sharply                                         -14-                                          14            presented").  Here,  because the  merits of  the action  turn            largely on  an evaluation of Benjamin's  performance at TAMC,            he, and not the patients, is clearly the best party to assert            the claim.   Not only would Benjamin  be best able to contest            TAMC's  assertion  of  professional  incompetence,   but,  in            addition,  he would  likely  be far  more  able to  point  to            specific  instances  of  conduct attributable  to  TAMC  that            suggest a  discriminatory  motive.   Indeed, it  is far  from            clear  that the patients,  who would not be  privy to all the            particulars  of  Benjamin's relationship  with  the hospital,            could effectively proceed without Benjamin's participation.                      To  summarize, because  the  patients' claims  fall            outside what  we, and other courts, have  previously found to            be  protected by   1981,  we believe the  patients assert the            third-party   rights   of  Benjamin   and   not   their  own.            Furthermore, because  the patients  have not met  the minimum            requisites  for  third-party  standing,  we  hold  that   the            district court did not err in dismissing their claims.            B.  Benjamin's Claims            _____________________                      Benjamin contends that the  district court erred in            granting TAMC's  motion to dismiss with  prejudice.  Benjamin            maintains  that  the   district  court  granted  the   motion            essentially  because  his  counsel  failed  to prosecute  the            action  by not  responding  to TAMC's  motion  to dismiss  or            appearing  at  the  August  17  hearing.    Benjamin  argues,                                         -15-                                          15            however, that these  failures are excusable  in light of  his            attorney's sudden and serious illness.                      We treat  the district court's  dismissal as issued            pursuant  to Rule 41(b).4   We  review  dismissals under Rule                                            ____________________            4.  Fed R. Civ. P. 41(b) provides in relevant part:                      For failure of the plaintiff to prosecute                      or  to comply  with  these rules  or  any                      order of court, a  defendant may move for                      dismissal  of an  action or of  any claim                      against  the defendant.  Unless the court                      in  its  order  for  dismissal  otherwise                      specifies,   a   dismissal   under   this                      subdivision   and   any   dismissal   not                      provided for  in this rule,  other than a                      dismissal  for  lack of  jurisdiction for                      improper  venue, or for failure to join a                      party  under  Rule  19,  operates  as  an                      adjudication upon the merits.                      TAMC  contends that  the  district court  dismissed            Benjamin's claims pursuant  to Local Rule 19(c)  and not Rule            41(b).  Local Rule 19(c) provides  that the failure to file a            timely written  response to a  pending motion will  waive any            objections to that motion.  U.S. Dist. Ct. Me. Gen. R. 19(c).                      Our reading of the district court's order, however,            convinces us  that it was acting pursuant to Rule 41(b).  The            district  court did not cite Local Rule 19(c) in ordering the            dismissal  of the case.  Neither did the district court state            that the  dismissal was compelled because  Benjamin's failure            to  respond constituted  a  waiver of  any  objection to  the            motion.   Instead, the district court  reasoned, "Because the            plaintiff,  through  counsel,  has  failed  to  make  himself            available  for any  proceedings since  the appearance  of Mr.            Chandler and  since the  plaintiff, through counsel,  has not            responded to  notices from  the Court, defendant's  Motion to            Dismiss   plaintiff's   actions   is   hereby   GRANTED  with                                                            _______            prejudice."    We think  this  rather  terse statement  makes            apparent that  the court's  motivation stemmed more  from its            displeasure  at  Benjamin  and Chandler's  failure  either to            appear  at the hearing or  to notify the  court (and opposing            counsel) of  their expected  absence, than just  Benjamin and            Chandler's (arguably) excusable failure to respond to  TAMC's            motion to dismiss.                                         -16-                                          16            41(b) for abuse of discretion.  Capo v. United States, 7 F.3d                                            ____    _____________            283, 284  (1st  Cir. 1993);  Enlace Mercantil  Internacional,                                         ________________________________            Inc.  v. Senior  Indus., Inc.,  848 F.2d  315, 317  (1st Cir.            ____     ____________________            1988).   Claims  of  abuse  of  discretion under  Rule  41(b)            typically  have "not  received  a sympathetic  ear from  us."            Damiani  v. Rhode  Island Hosp.,  704 F.2d  12, 17  (1st Cir.            _______     ___________________            1983) (collecting cases).   At the same time, this  "does not            mean  we have  rubber-stamped the  decisions of  the district            court."  Id.  Dismissal with prejudice "is a harsh sanction,"                     ___            Richman v. General Motors Corp., 437  F.2d 196, 199 (1st Cir.            _______    ____________________            1971),  which runs counter to our "strong policy favoring the            disposition  of cases  on the  merits."   Zavala Santiago  v.                                                      _______________            Gonzalez  Rivera, 553  F.2d 710, 712  (1st Cir. 1977).   As a            ________________            result,  we have  indicated  that such  an  option should  be            employed only when  a plaintiff's misconduct is  particularly            egregious  or extreme.  See,  e.g., Estate of Solis-Rivera v.                                    ___   ____  ______________________            United States, 993 F.2d 1, 2 (1st  Cir. 1993); see also Cosme            _____________                                  ___ ____ _____            Nieves v. Deschler, 826 F.2d 1, 2 (1st Cir. 1987) ("[i]n  all            ______    ________            the cases in  which we  have upheld a  dismissal for want  of            prosecution,  we  have  found  either   extremely  protracted            inaction (measured  in years), disobedience of  court orders,            ignorance  of  warnings, contumacious  conduct or  some other            aggravating  circumstance").  In  reviewing the trial court's            actions, we engage in  an "open-ended balancing test," giving            appropriate  consideration to all relevant factors.  Figueroa                                                                 ________                                         -17-                                          17            Ruiz  v. Algria, 896 F.2d 645,  648 (1st Cir. 1990); see also            ____     ______                                      ___ ____            HMG  Property Investors,  Inc.  v. Parque  Indus. Rio  Canas,            ______________________________     __________________________            Inc., 847 F.2d 908, 917 n.13 (1st Cir. 1988).            ____                      If the district court's order ensued solely because            Attorney   Chandler's  sudden  illness   prevented  him  from            responding to  TAMC's motion to dismiss,  Benjamin's argument            would  have  significantly  more   bite.    Indeed,  we  have            suggested that,  in  deciding a  motion for  an extension  of            time, a  district court's failure to allow for factors beyond            a party's control, such as the unexpected illness of counsel,            may,  in a certain  case, constitute an  abuse of discretion.            See Maldonado-Denis v. Castillo-Rodriguez,  23 F.3d 576,  584            ___ _______________    __________________            (1st  Cir. 1994) (finding no abuse of discretion in denial of            motion for enlargement of time  where, inter alia, party does                                                   _____ ____            not advert  to "circumstances beyond a  party's control, such            as  an attorney's  illness"); cf.  Smith-Weik Mach.  Corp. v.                                          ___  _______________________            Murdock Mach. & Eng'g Co., 423 F.2d 842, 844 (5th Cir. 1970).            _________________________            In this case, however, other factors obtain, most importantly            Chandler's failure to appear  at the August 17 hearing  or to            notify the  court  and opposing  counsel  in advance  of  his            expected absence.  See  Simpson v. Welch, 900 F.2d  33, 34-35                               ___  _______    _____            (4th Cir.  1990) (no abuse of discretion  to dismiss pursuant            to  Rule  41(b) where  counsel  did  not respond  to  summary            judgment  motion or appear at hearing  on motion).  Moreover,            Chandler's  failure to  appear occurred  after the  court had                                         -18-                                          18            already  extended  the time  to respond  to TAMC's  motion to            dismiss upon Chandler's late  appearance in the case.   Cf. 9                                                                    ___            Charles A.  Wright & Arthur  R. Miller, Federal  Practice and                                                    _____________________            Procedure   2352, at 402 (2d ed. 1995) (prior delays relevant            _________            in evaluating denial of continuance).                      On  the other  hand, though  Chandler's failure  to            notify the district  court and opposing counsel that he would            not be present at the August 17 hearing cannot be overlooked,            we believe that, when viewed in context, the egregiousness of            his  conduct  becomes  somewhat  mitigated.   TAMC  does  not            dispute  that Chandler,  who lives  in Washington,  D.C., was            seriously ill.   Indeed,  Chandler had apprised  the district            court  and opposing  counsel of the  severity of  his illness            through  two motions for enlargement of time filed on July 15            and August 2.  The August 2 motion expressly states that "The            prognosis of  [Chandler's]  primary care  physician  is  that            [Chandler]  will not be able to resume his court duties until            after mid-August."  Thus, we think that Chandler provided the            court and TAMC at least some notice that he might not be able            to  attend the  August 17  hearing.   Moreover,  the district            court  scheduled the date of the August 17 hearing only after            Chandler  filed the  second motion  for enlargement  of time.            Finally,  the   litigation,  at  the  time   of  the  court's            dismissal, was less than one year old.                                         -19-                                          19                      We sympathize with the district court's frustration            in  the face  of counsel's  failure to  appear, and  we fully            appreciate the  district court's need to  control its docket.            Furthermore,  we  "wholeheartedly endorse  the  use of  stiff            sanctions,  including  dismissal   [with  prejudice],   where            appropriate."  Velazquez-Rivera v.  Sea-Land Serv., Inc., 920                           ________________     ____________________            F.2d  1072,  1079  (1st Cir.  1990).    While  we agree  that            Chandler's failure to appear or to notify  the court warrants            punishment,  we  believe that,  in  this  case, the  district            court's  use  of  the  ultimate sanction  of  dismissal  with            prejudice was  a step too far.  Hence, we modify the order of            the district court to  a dismissal without prejudice.   See 9                                                                    ___            Wright & Miller,  Federal Practice and  Procedure   2373,  at                              _______________________________            402  ("The  decision  of  the trial  court  to  dismiss  with            prejudice  may be reviewed on appeal  and the appellate court            may order the dismissal to be without prejudice.").                                         III.                                         III.                                         ____                                      Conclusion                                      Conclusion                                      __________                      For the  foregoing reasons, we affirm the dismissal            of the patients' claims and modify the district court's order            dismissing Benjamin's claims to operate without prejudice.                                         -20-                                          20
