
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1041                      THE ESTATE OF JOSE M. SOLIS-RIVERA, ET AL.                               Plaintiffs, Appellants,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                   [Hon. Gilberto Gierbolini, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                     ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ____________________            Armando Cardona-Estelritz  and Isidro Garcia  Pesquera Law Offices            _________________________      ___________________________________        on brief for appellants.            Isabel  Munoz  Acosta,   Assistant  United  States  Attorney,  and            _____________________        Daniel F.  Lopez-Romo, United States Attorney, on brief for the United        _____________________        States.                                 ____________________                                     May 11, 1993                                ____________________                        Per  Curiam.   Plaintiffs/appellants are  the widow                      ___________            and children  of the late  Jose M. Solis Rivera.   Plaintiffs            brought this  action pursuant to the Federal  Tort Claims Act            ("FTCA"), 28 U.S.C.   2671  et seq., claiming that the United                                        __ ____            States  Department of  Veterans'  Affairs ("VA")  negligently            failed  to diagnose and  treat Solis Rivera's  prostate gland            cancer.     Plaintiffs  appeal  from  the   district  court's            dismissal  of  the   case  without  prejudice  for   lack  of            prosecution.                                          I.                                          I.                      Plaintiffs filed  their  complaint  on  August  19,            1991.  On February 13, 1992, the government filed a motion to            dismiss the complaint, arguing that plaintiffs had improperly            filed their  administrative claim in  the name of  Jose Solis            Rivera  and his  heirs,  rather  than in  the  name of  Solis            Rivera's  estate   or  in   the  names   of  the   plaintiffs            individually as his heirs.  Plaintiffs did not respond to the            government's motion to dismiss within ten days of service, as            required by Local Rule 311.5  of the District of Puerto Rico.            On March  23, 1992, after more than  a month had passed since            service of the motion to dismiss, the district court  entered            an  order dismissing the complaint with prejudice for failure            to  diligently prosecute the  action.  A  judgment dismissing            the case was entered on March 31.                                         -2-                      Plaintiffs thereafter filed a  motion to vacate and            set aside  the court's order  and a motion to  reconsider the            judgment.   In  the motions,  plaintiffs' attorney  explained            that  he thought  the  district court,  during  a February  7            status conference, had approved a thirty-day period to answer            the  government's proposed  motion to  dismiss.   Plaintiffs'            attorney further explained that he had been busy with another            case for  three weeks, and asked  the court to impose  a less            severe sanction than dismissal with prejudice in light of the            isolated nature of his dilatory action.                      On  May  29,  1992,  the  district  court   granted            plaintiffs' request  to vacate and set aside  its prior order            dismissing  the case.  On the same  day, the court granted to            the government fifteen days to file a detailed  memorandum of            law in support of the motion to  dismiss that it had filed on            February 13.  Plaintiffs were given ten days to respond.                        On June 12, 1992, in compliance with the order, the            government  filed  the  more detailed  memorandum  of  law in            support of  its motion  to dismiss.   On June  23, plaintiffs            requested  an additional  five  days  to  respond  ostensibly            because plaintiffs' attorney was unable to find in his  files            a contemporaneous motion to dismiss.  The government contends            that  it  subsequently informed  plaintiffs' attorney  that a            copy of the motion  to dismiss filed on February 13, 1992 was            to  accompany  its  memorandum  of  law  of  June  12.    The                                         -3-            government   faxed  a  copy  of  the  motion  to  dismiss  to            plaintiffs' attorney on June 24.                      Approximately a month passed with no  response from            plaintiffs.  On July 29,  1992, the government filed a motion            to  adjudicate, asking  the  court to  dismiss the  case with            prejudice because  plaintiffs had  failed to  respond to  its            motion  to dismiss twenty-nine business days after they filed            a request for an extension.                      On  August  10,  1992,  plaintiffs filed  a  motion            opposing the government's motion to adjudicate.   Plaintiffs'            attorney claimed  he was not  informed until July 16  that he            was not  missing any of the government's  pleadings, and that            he had  been busy  with another jury  trial, but  expected to            complete  an opposing  memorandum within  a day  or two.   On            August  18,  1992,  plaintiffs  finally  filed  a  memorandum            opposing the government's motion to dismiss.                      By  that  time,  however,  the  district court  had            already entered an order dated August  12 dismissing the case            with prejudice for lack of prosecution.  Judgment was entered            on August 19, 1992.                      On  August  25,  plaintiffs   filed  a  motion  for            reconsideration.  They  argued that (1) they  had filed their            memorandum on August  18, before receiving the  court's order            dated August 12 and before  judgment was entered; and (2) the            essentials  of  plaintiffs'  opposition to  the  government's                                         -4-            motion to dismiss  had been tendered in plaintiffs'  March 27            motion to vacate.                      On October 22,  1992, the district court  issued an            order  denying plaintiffs'  motion  for reconsideration,  but            modifying  the August  12, 1992  order  to dismissal  without            prejudice.   Plaintiffs  appeal  from  the  district  court's            October 22, 1992 order dismissing the case without prejudice.                                         II.                                         II.                      Rule  41(b) of the Federal Rules of Civil Procedure            expressly  authorizes  a  district court  to  dismiss  a case            "[f]or failure of the plaintiff to prosecute or comply with .            .  . any  order of  court."   Dismissal  with prejudice  is a                                                     ______________            "harsh sanction," Richman  v. General Motors Corp.,  437 F.2d                              _______     ____________________            196, 199 (1st Cir. 1971), which "should be employed only when            a plaintiff's misconduct has been extreme,"  Figueroa Ruiz v.                                                         _____________            Alegria, 896 F.2d  645, 647 (1st Cir. 1990),  and "only after            _______            the district  court has determined  'that none of  the lesser            sanctions  available  to  it  would  truly  be appropriate,'"            Enlace Mercantil Int'l, Inc. v. Senior Indus., Inc., 848 F.2d            ____________________________    ___________________            315, 317 (1st Cir. 1988).  A finding of extreme misconduct is            justified  if   there  is   extremely  protracted   inaction,            disobedience   of  court   orders,  ignorance   of  warnings,            contumacious conduct, Cosme Nieves v. Deshler, 826 F.2d  1, 2                                  ____________    _______            (1st Cir. 1987), or "some other aggravating circumstance such            as 'prejudice  to the  defendant, glaring  weaknesses in  the                                         -5-            plaintiff's  case,   and  the   wasteful  expenditure   of  a            significant  amount of the district court's time.'"  Figueroa                                                                 ________            Ruiz, 896 F.2d at 648  (quoting Enlace Mercantil, 848 F.2d at            ____                            ________________            317).   We review  a district court's  dismissal for  lack of            prosecution only for an abuse of discretion.   E.g., Figueroa                                                           ____  ________            Ruiz, 896 F.2d at 647.              ____                      Plaintiffs  contend   that  the   district  court's            dismissal without prejudice is the functional equivalent of a            dismissal  with  prejudice  since  the six-month  statute  of            limitations  authorized in  the FTCA,  28  U.S.C.    2401(b),            (providing in substance  that, in an FTCA case,  suit must be            "begun within six months  after the date of mailing .  . . of            notice  of final [administrative]  denial of the  claim") had            long since  passed and there  appears to be no  likelihood of            equitable tolling.  See de Casenave v. United States, No. 92-                                ___ ___________    _____________            2102,  slip  op.  at  6  (1st Cir.  April  20,  1993)  (where            plaintiffs' initial  lawsuit  was dismissed  for  failure  to            abide by discovery orders, and record contains no evidence of            misconduct  on part of government, court "discern[s] no basis            under which the  district court could have  applied equitable            principles" to toll FTCA's six-month statute of limitations);            Pipkin v.  United States  Postal Service,  951 F.2d  272, 274            ______     _____________________________            (10th Cir. 1991) (refusing to toll FTCA six-month limitations            period  during  filing  of previous  FTCA  lawsuit  which was            dismissed  without  prejudice   for  failure  to  prosecute).                                         -6-            Plaintiffs  argue  that  their dilatory  conduct  was  not so            egregious  as to  justify what  is, in  effect, the  ultimate            sanction of dismissal with prejudice.                        The district  court may, indeed,  have been unaware            that the applicable statute of limitations had expired.   The            court's  October 22  modification  of  its  August  12  order            dismissing  the  case  from   "with  prejudice"  to  "without            prejudice"  suggests  that  the  court  may  have  felt  that            plaintiffs were  in a position to refile  their case.  Such a            belief  on the  court's part  would  be understandable  given            plaintiffs' counsel's neglect, either before or after October            22,  1992,  to  point  out  to  the  court  their limitations            problem.                      Resolution of this appeal is not altogether simple.            Plaintiffs' attorney's failure on two occasions to respond to            plain  deadlines was egregious.   If  the district  court had            dismissed with prejudice in these circumstances, we could not                      ____            say  it  had  abused its  discretion.    However, by  finally            dismissing without  prejudice, the  district  court seems  to                       _______            have  indicated  a  merciful  wish  not  to  visit  counsel's            dereliction  upon  the  heads of  plaintiffs  by  barring the            action altogether.   A district  court, which has  direct and            continuous  contact with attorneys, is best  able to judge in            the  first  instance  whether  an  attorney's  misconduct  is            sufficiently  egregious to  warrant the  "death  knell" of  a                                         -7-            lawsuit, see  Aoude v. Mobil  Oil Corp., 892 F.2d  1115, 1118                     ___  _____    ________________            (1st Cir.  1989), or  whether some  lesser sanction  would be            more appropriate.                      Given the  district court's action  in changing the            dismissal  from  "with"   to  "without"  prejudice,   we  are            persuaded to remand  to the same district judge  to allow him            to decide  whether,  given the  surfacing of  the statute  of            limitations problem, he  wishes to give plaintiffs  a further            chance  by allowing  the present  action to  proceed.   In so            remanding,  we may be  criticized for overlooking plaintiffs'            failure to have  raised the limitations problem  below.  This            court  will  not  ordinarily  consider  a  matter  not  first            presented to the  district court.  E.g.,  Boston Celtics Ltd.                                               ____   ___________________            Partnership v.  Shaw, 908 F.2d  1041, 1045  (1st Cir.  1990).            ___________     ____            Still, we think  the district court is better positioned than            ourselves to  determine  the course  of  justice here.    We,            therefore, vacate and remand, but emphasize that we leave the            choice entirely in the hands of the district court, which may            either choose to confirm the  "death knell" of this action by            reentry of  its previous  or some  other dismissal  order, or            else allow the case to proceed.  If the district court allows            the  case to  proceed, the  court may  wish to  assure itself            either   that  present  counsel   will  in  the   future  act            responsibly  or that  new  counsel  will  be  substituted  by            plaintiffs.  The court may  also consider whether to  impose,                                         -8-            as a condition to allowing  the case to go forward, pecuniary            sanctions, to be  paid by present counsel  personally, and to            see that  present counsel does  not bill its own  clients for            time related to its ineffective and annoying conduct to date.                      Vacated  and remanded  for  further proceedings  in                      ___________________________________________________            accordance  herewith.     Costs  to  appellee,  to   be  paid            ____________________      ___________________________________            personally by appellant's counsel.            _________________________________                                         -9-
