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<pre>                  UNITED STATES COURT OF APPEALS <br>                      FOR THE FIRST CIRCUIT <br>                       ____________________ <br> <br>No. 97-2148 <br> <br>                         CHRISTIAN GUEX, <br> <br>                      Plaintiff - Appellant, <br> <br>                                v. <br> <br>     ALLMERICA FINANCIAL LIFE INSURANCE AND ANNUITY COMPANY, <br>                A/K/A SMA LIFE ASSURANCE COMPANY, <br> <br>                      Defendant - Appellee. <br> <br>                       ____________________ <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF PUERTO RICO <br> <br>        [Hon. Jess A. Castellanos, U.S. Magistrate Judge] <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                     Torruella, Chief Judge, <br> <br>                 Campbell, Senior Circuit Judge, <br> <br>                    and Stahl, Circuit Judge. <br> <br>                      _____________________ <br> <br>    Luis Len-Freire, with whom Jess M. del Valle Law Offices was <br>on brief for appellant. <br>    Frank Gotay-Barquet, with whom Ramonita Prez de Gotay, <br>Feldstein, Gelp & Gotay and Ralph L. Diller were on brief for <br>appellee. <br> <br> <br> <br>                       ____________________ <br> <br>                         July 10, 1998 <br>                      ____________________

  Per curiam.  Plaintiff-appellant Christian Guex appeals from the <br>dismissal with prejudice of his complaint.  The dismissal was a <br>sanction for his failure to appear at his own deposition, as well <br> as for earlier violations of discovery orders.  He argues that <br>   the dismissal was too severe a sanction.  We disagree, and <br>                            affirm. <br>   In dismissing the plaintiff's complaint, the district court <br>relied on Rule 37 of the Federal Rules of Civil Procedure, which <br>                 provides, in pertinent part,  <br>  (d) If a party . . . fails (1) to appear before the officer who <br>  is to take the deposition, after being served with proper notice, <br>    or (2)  to serve answers or objections to interrogatories <br>  submitted under Rule 33, after proper service of interrogatories, <br>  . . . the court in which the action is pending on motion may make <br>   such orders in regard to the failure as are just, and among <br>        others it may [issue various orders, including:]  <br>                             . . . <br>  (b)(2)(C) An order striking out pleadings or parts thereof, or <br>    staying further proceedings until the order is obeyed, or <br>   dismissing the action or proceeding or any part thereof, or <br>  rendering a judgment by default against the disobedient party. <br>                                 <br>   Fed. R. Civ. P. 37(d) & 37(b)(2)(C) (emphasis added).     <br>  We review the trial court's imposition and selection of sanctions <br>under Fed. R. Civ. P. 37(d) for abuse of discretion, in deference <br> to that court's greater familiarity with the parties appearing <br>  before it.  See Goldman, Antonetti, Ferraiuoli, Axtmayer, & <br>Hertell v. Medfit Int'l, Inc., 982 F.2d 686, 692 (1st Cir. 1993).  <br>Moreover, the Supreme Court has stated that a reviewing court, in <br>assessing the severity of the sanctions imposed by a trial court, <br> must give due regard to the deterrent effect of the sanctions: <br>    [T]he most severe in the spectrum of sanctions provided by <br>   sanction or rule must be available to the district court in <br>  appropriate cases, not merely to penalize those whose conduct may <br>   be deemed to warrant such a sanction, but to deter those who <br>    might be tempted to such conduct in the absence of such a <br>                            deterrent. <br>                                 <br> National Hockey League v. Metropolitan Hockey Club, Inc., 427 <br> U.S. 639, 643 (1976); see also Roadway Express, Inc. v. Piper, <br>447 U.S. 752, 763-64 (1980); Goldman, Antonetti, 982 F.2d at 692.  <br>There is also "nothing in the rule that states or suggests that <br> the sanction of dismissal can be used only after all the other <br>  sanctions [available under Rule 37] have been considered or <br>tried."  Damiani v. Rhode Island Hosp., 704 F.2d 12, 15 (1st Cir. <br>1988).  Thus, "[a] plaintiff who appeals such a dismissal bears a <br>heavy burden of demonstrating that the trial judge was clearlynot justified in entering an order of dismissal under Rule 37."  <br>Spiller v. U.S.V. Labs., Inc., 842 F.2d 535, 537 (1st Cir. 1988) <br>                       (emphasis added). <br>  Mr. Guex filed this action on March 13, 1995, seeking to collect <br>  the benefits allegedly due to him under a disability policy <br>issued by defendant-appellee Allmerica Financial Life Insurance <br>and Annuity Company ("Allmerica").  He claims that he is totally <br>  disabled and therefore incapable of performing his duties as <br>president of Guex Tooling Company, of which he is also the sole <br>  shareholder.  The parties consented to have a United States <br>Magistrate Judge conduct all proceedings in this case pursuant to <br>                     28 U.S.C.  636(c)(1). <br>  On May 29, 1997, Allmerica notified Mr. Guex that his deposition <br>would be taken starting on Monday, June 23, 1997.  On Thursday, <br>  June 19, 1997, counsel for Mr. Guex confirmed that he would <br>attend his deposition.  Four days later, approximately one hour <br>before the deposition was slated to begin, counsel for Mr. Guex <br>called Allmerica to reveal that an unidentified person had called <br>    his office to say that Mr. Guex would not appear for the <br>                          deposition. <br>   Mr. Guex did, indeed, fail to appear at his deposition.  No <br>excuse or explanation was given.  His counsel said that he would <br>  try to communicate with Mr. Guex, and then call Allmerica to <br> provide the reasons why he had not appeared.  When counsel for <br>Mr. Guex called back, however, it was to say that he had not been <br>             able to communicate with his client.   <br>     On July 1, 1997, Allmerica filed a motion requesting the <br> dismissal of the complaint due to Mr. Guex's failure to attend <br>  his own deposition.  The following day, the magistrate judge <br>ordered Mr. Guex to show cause in writing within five days "why <br>this case should not be dismissed for want of prosecution or for <br>  the imposition of any other sanctions, which may include the <br>certification for contempt proceedings."  The plaintiff failed to <br>respond to the order to show cause within the prescribed period, <br> neither by filing a motion showing cause, nor even by filing a <br>                motion for extension of time.   <br>   Three weeks later, Mr. Guex finally filed a response to the <br>motion for sanctions.  His response, however, utterly failed to <br>provide any explanation for his failure to attend his deposition.  <br>In this regard, we do not consider his general references to an <br>alleged "impossibility to attend his deposition" and unspecified <br> "last-minute problems" to be adequate responses, particularly <br>because they were unaccompanied by any indication of the nature <br>            and source of his last-minute problems. <br>  Notwithstanding the fact that Mr. Guex had missed the deadline <br>set by the order to show cause, the magistrate judge waited until <br>after Guex had responded to rule on the motion for sanctions.  On <br>August 1, 1997, the magistrate judge entered an opinion and order <br>   granting the motion to dismiss, and on August 11, 1997, he <br> entered judgment dismissing the complaint with prejudice.  On <br>       that same date, Mr. Guex filed a motion requesting <br> reconsideration of the order dismissing the complaint, arguing <br>that his failure to attend the deposition "was due to out of his <br>control circumstances [sic] that this court has shown no interest <br>in hearing."  On August 19, 1997, the magistrate judge denied the <br>                  motion for reconsideration. <br>  We find no abuse of discretion in the magistrate judge's decision <br>to dismiss Mr. Guex's complaint as a sanction for his conduct.  <br>  To the contrary, we think that the district court exhibited <br> extraordinary patience.  Mr. Guex has demonstrated a troubling <br>lack of respect for the judicial process by failing to appear at <br>his deposition, failing to explain his failure, and then having <br>the impertinence to suggest that the magistrate judge had shown <br>   no interest in hearing his side of the story.  The record <br> discloses that the magistrate judge gave Mr. Guex not one, but <br>three opportunities to proffer an explanation for his failure to <br>                   appear at the deposition. <br>  The first time that an explanation was provided was in Mr. Guex's <br> brief in this appeal, filed three months later on November 21, <br>1997.  The entire extent of his new, more complete explanation, <br>is that he was unable to attend his deposition because he had to <br>travel to Switzerland "for reasons of family health problems."  <br>Because it is a mere assertion of counsel rather than a statement <br>made under oath, and because no proof is offered to support it, <br>   one might reasonably question the credibility of the newly <br>   proffered explanation.  However, we need not address this <br> question, since we cannot consider an explanation that was not <br> provided to the trial court.  See Villafae-Neriz v. FDIC, 75 <br>                 F.3d 727, 734 (1st Cir. 1996). <br>  Mr. Guex also argues, however, that the magistrate judge abused <br> his discretion because in dismissing Guex's complaint, he took <br>into consideration not only Guex's own failure to appear at the <br>deposition, but also the numerous violations of discovery orders <br>committed by Guex's company.  Guex contends that a court should <br>not consider the actions of a non-party in determining whether a <br> party should be sanctioned under Rule 37(d).  Although Guex's <br>contention holds true in most cases, there are some exceptions, <br>                       such as this case. <br>  First, not all of the incidents mentioned by the magistrate judge <br>involved a non-party.  For example, on one occasion, Mr. Guex was <br>         given direct orders by the magistrate judge:  <br>  to instruct his corporation to proceed with the production of the <br>  documents requested in defendant's subpoena [duces tecum]. . . .  <br>    More than reasonable time has already been granted to this <br>  corporation for the production of said documents. . . .  There <br>  are some indications of stonewalling maneuvers by the corporation <br>    to avoid discovery by defendant.  Severe sanctions will be <br>  imposed for failure to comply with this order, which may include <br>  a certification for contempt proceedings or the dismissal of the <br>                            complaint. <br>                                 <br>  Conference Report, App. at 75.  Mr. Guex did not file for a <br>protective order or otherwise seek reconsideration of this order.  <br>  Instead, his corporation failed to comply with the discovery <br>  requests, and there is no evidence that Guex did anything to <br> comply with the order he was given to ensure that his company <br> produced the requested documents.  At least in this instance, <br>therefore, there is no question that the magistrate judge could <br>  attribute to Mr. Guex the company's violation of the order. <br>    Second, like the magistrate judge, we cannot overlook the <br> plaintiff's abuse of the corporate form to avoid his discovery <br>obligations.  Throughout the pre-trial proceedings in this case, <br>the plaintiff's wholly owned company violated numerous discovery <br>  orders.  The plaintiff, however, took the position that his <br>company's violations were none of his concern, even though he is <br>    the president of the company, and his lawyer is also the <br>company's lawyer.  For example, on one occasion, Guex Tooling was <br>  cited for a deposition and served with a deposition subpoena <br>    duces tecum for certain documents to be produced at the <br>deposition.  At the stated date no one appeared to serve as the <br>official representative of the company, and the deposition had to <br>be continued until a later date.  Sitting in the room, however, <br>were Mr. Guex and his counsel.  Mr. Guex, the president and 100% <br>owner of Guex Tooling, and his counsel, who was also representing <br>Guex Tooling, provided no explanation for the company's failure <br>                          to appear.   <br>   Surveying the entire pre-trial process, the magistrate judge <br>  evidently found that Mr. Guex was responsible for failing to <br> prevent his company's repeated violations.  Moreover, Mr. Guex <br>  failed even to explain why he could not ensure the company's <br>compliance with the defendants' discovery requests.  In light of <br>this information, the magistrate judge was entitled to find that <br>  Mr. Guex had feigned his inability to control his company's <br>conduct and, thus, had acted in bad faith.  Accordingly, we find <br>that the sanction of dismissal with prejudice was well within the <br>                 magistrate judge's discretion. <br>  For the reasons stated above, we affirm the magistrate judge's <br>judgment dismissing the complaint with prejudice.  Double costs <br>                   are awarded to appellees. <br></pre>

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