
USCA1 Opinion

	




        March 31, 1994          [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1859                                 FERMIN ALVAREZ-SILVA,                                Plaintiff, Appellant,                                          v.                                    ISAAC RUDMAN,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                          Selya and Boudin, Circuit Judges.                                            ______________                                 ____________________            Jose R. Franco Rivera on brief for appellant.            _____________________                                 ____________________                                 ____________________                      Per  Curiam.    Plaintiff/appellant Fermin  Alvarez                      ___________            Silva appeals  from  a July  16,  1993 district  court  order            denying his  second motion for  reconsideration following the            court's  sua  sponte  dismissal  of  his  case  for  lack  of                     ___  ______            prosecution  pursuant  to Fed.  R. Civ.  P.  41(b).   For the            reasons stated below, we affirm.                                          I.                      On August 6, 1991,  plaintiff, a resident of Puerto            Rico,  filed  a  complaint  alleging a  claim  for  injurious            falsehood against  defendant Isaac Rudman, a  resident of the            Dominican Republic.   On  June 29, 1992,  the district  court            issued an  order to show  cause why  the case  should not  be            dismissed  for  lack  of  prosecution.    In  the  order, the            district court stated that "almost eleven months have elapsed            since  the complaint  was  filed; but  plaintiff has  not yet            served  the  defendant."   Plaintiff  responded  by filing  a            motion  requesting until July  31, 1992 to  effect service of            process.  Plaintiff  stated in the motion that  if he did not            serve the defendant  by the  end of July,  he would move  for            voluntary dismissal of the case.                          The  additional  requested   time  lapsed   without            service  of  process.1   Thereafter,  instead  of moving  for                                            ____________________            1.  Plaintiff  explains his  failure to  complete  service of            process during the  first year  by stating  that his  process            server  went  to Santa  Domingo,  Dominican  Republic on  two            occasions  to  attempt  personal  service.    Plaintiff  also            states:    "In  several   other  occasions  [sic],  plaintiff                                         -2-            voluntary  dismissal,  defendant  requested authorization  to            serve  process  by publication.    On  October  9, 1992,  the            district  court issued a second  order to show  cause why the            case should not  be dismissed  for lack of  prosecution.   In            response,  plaintiff  brought  to the  court's  attention his            pending motion to serve process by publication, and the court            allowed  this motion.  On November 18, 1992, the court issued            a summons by edict.   Over two months  later, on January  29,            1993,  the edict  was  finally published  in  a Puerto  Rican            newspaper.2  Following publication,  plaintiff sent a copy of            the  complaint and edict  by certified mail  to the defendant            and received a  signed, return receipt dated  April 12, 1993.            On May 7, 1993, plaintiff moved for entry of default.  On May            10, 1993, the district  court dismissed the case for  lack of            prosecution pursuant to Fed. R. Civ. P. 41(b).  The same day,            the clerk entered default against the defendant.                      On  May  18, 1993,  plaintiff  filed  a motion  for            reconsideration of  the dismissal  order.  After  judgment on            the  dismissal order  was entered  on the  docket on  May 21,                                            ____________________            followed rumors that the defendant would fly into Puerto Rico            in other non-related matters.  Such rumors proved unfounded."            2.  According to the plaintiff,  the delay in publication was            caused  by the failure of the clerk's  office to mail him the            edict.  Plaintiff  alleges that although he  submitted a form            edict to the clerk's office on or about  October 31, 1992, he            did not learn that the edict had been issued until  the first            week in January 1993 when he instructed his secretary to call            the clerk's office.                                         -3-            1993,  plaintiff  renewed his  motion for  reconsideration on            June  1, 1993.  The  district court entered  an order denying            the motion for reconsideration on June  24, 1993.  On July 2,            1993,  plaintiff filed  a second motion  for reconsideration.            This motion was denied by order entered on July 20, 1993 when            the court  "[f]or the third  and final  time" reiterated  its            dismissal order.   Plaintiff  filed his  notice of appeal  on            July 29, 1993.                                         II.                      Dismissal for failure to prosecute is a significant            sanction  but where a plaintiff is truly dilatory, the choice            of sanction is a matter within the discretion of the district            court and is reviewed under an abuse of discretion  standard.            In this realm, claims of "abuse of discretion typically `have            not received a sympathetic  ear from us.'"  Figueroa  Ruiz v.                                                        ______________            Alegria,  896 F.2d 645, 647  (1st Cir. 1990) (quoting Damiani            _______                                               _______            v. Rhode Island Hospital, 704 F.2d 12, 17 (1st Cir. 1988)).               _____________________                      Almost  two  years   elapsed  from  the   time  the            complaint was filed to the point when the case was dismissed.            During that  time, plaintiff  had done nothing  except effect            service and then, belatedly, filed a motion for default.  The            first  year was  marked by unexplained  delays in  seeking to            affect service.   Even  the second  year presented  lapses of            diligence.  In particular:                                         -4-                      First,  plaintiff   apparently  delayed  publishing            notice  for over two  months after notice  by publication was            approved by the  district court.  Although  counsel says that            he did not  know of the  entry of the court's  order, counsel            has a duty after submitting a request to the court to monitor            the docket.                      Second,  although notice  was published  on January            29, 1993, calling upon the defendant to answer within 30 days            from the date of  publication and warning that default  could            otherwise occur,  there is no indication  that plaintiff took            further steps to prosecute  the case until May.   The default            motion  was filed more or less  at the time that the district            court determined to dismiss the case.                      We agree that the district court may well have been            unaware of the belated  default motion at the time  the court            dismissed  the case for want of prosecution.  But the court's            order  on reconsideration made  clear that the  court did not            regard  the belated default motion as a timely effort and did            not  think that  the belated  motion justified  retaining the            case on its docket.                      We think that the overall progress of this case has            been marked  by a  lack  of serious  intent.   In  a time  of            crowded dockets  and urgent  matters, the kind  of on-and-off            again efforts  exhibited by plaintiff  in this  case are  not            appropriate and need  not be tolerated.   The district  court                                         -5-            was lenient at the outset but  eventually its patience became            exhausted.   We do  not regard  its decision as  an abuse  of            discretion.                      Affirmed.  See 1st Cir. R. 27.1.                      ________   ___                                         -6-
