
USCA1 Opinion

	




          September 7, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1010                                    PAUL L. MUCKLE,                                Plaintiff, Appellant,                                          v.                                  LOTUS DEVELOPMENT,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                               Selya, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Paul L. Muckle on brief pro se.            ______________            Melinda Milberg and Glovsky & Associates on brief for appellee.            _______________     ____________________                                 ____________________                                 ____________________                 Per Curiam.  The appellant, Paul  Muckle, appeals from a                 __________            judgment  of the district court dismissing his complaint.  We            vacate and remand.                 In August  1991, Muckle  filed a civil  rights complaint            against  his former  employer, Lotus  Development Corporation            (Lotus),  in which he alleged that  his lay-off and/or denial            of  permanent employment resulted from racial discrimination.            The district court concluded  that the complaint survived the            threshold  standard for in  forma pauperis proceedings, i.e.,            it  was not frivolous, see  28 U.S.C.    1915(d), and allowed                                   ___            the case to proceed.                 On  October 2,  1992, the  district court  set a  status            conference for  October 26 at 2:45  pm.  On  October 6, Lotus            notified Muckle that it would  take his deposition on October            22.   It is undisputed  that Muckle received  notification of            both the deposition  and the status  conference.  Muckle  did            not appear for his deposition on October 22.  Muckle also did            not  appear at  the October  26 status  conference.   At that            conference,  Lotus moved to dismiss  on the basis  of Fed. R.            Civ. P. 37(d), i.e., on the ground that  Muckle had failed to            attend  his own deposition.1  The district court, in a margin                                            ____________________            1.  Rule 37(d) states, in pertinent part:                      If a party ... fails ... to appear before                      the   officer   who   is  to   take   the                      deposition,  after  being  served with  a                      proper notice, ... the court in which the                      action is pending on motion may make such                      orders in regard  to the  failure as  are            order, dated  October 26, endorsed Lotus'  motion, "Motion To            Dismiss is allowed."   Judgment entered by separate document,            Fed. R. Civ. P. 58, on October 27, 1992.                 The  district  court record  reveals,  however, that  on            October  26 at  1:29 pm,  i.e., before  the scheduled  status            conference, Muckle  filed and  the district court  received a            document  captioned, "Petition  for Writ  of Habeas  Corpus."            That document, dated October 20, asked that  the court direct            the   superintendent   of   the  Massachusetts   Correctional            Institute  at Concord to produce  Muckle for a  hearing.  The            petition  was a boilerplate  form, but at  the bottom, Muckle            handwrote the following:                      P.S. If possible could  court please  put                      off  status  conference  till 11-2-92  or                      whenever court deem possible.            The petition was signed by Muckle, with apparently his inmate            number,  and his prison address at MCI Concord.  Although the            habeas  petition was filed in the district court at 1:29 p.m.            before  the   2:45  p.m.  status  conference,   there  is  no            indication that the district  judge had any knowledge  of the            petition prior to the status conference.                 But  there  is considerably  more  to  the story.    The            judgment of dismissal was entered on a separate document  and                                            ____________________                      just, and  among others  it may take  any                      action  authorized under  paragraphs (A),                      (B),   and   (C)   [which,  inter   alia,                      authorizes  dismissal  of the  action] of                      subdivision (b)(2) of this rule.                                         -3-            filed on October 27,  1992, and transmitted to Muckle  at his            last known pre-incarceration address.   On December 28, 1992,            long  after the 30 day period for filing appeals had expired,            see Fed. R. App. P. 4(a)(1), Muckle filed a notice  of appeal            in the district  court.  On review of the appeal papers, this            court  sua sponte asked Muckle  to show cause  why the appeal            should not  be dismissed  for lack  of jurisdiction.   Muckle            then asked this  court to  treat his notice  as timely  under            subsection (a)(6) of the rule which allows the district court            to reopen the time to appeal  under certain circumstances. We            then  asked  the  district  court to  determine  whether  the            reopening provision had been  satisfied.  Based on affidavits            from Muckle and his sister, the district court found that the            provision  had  been satisfied  and  it  reopened the  appeal            period.                   The  district court has  very substantial  discretion in            applying sanctions  for failure  to comply with  discovery or            other deadlines, as it must have in a time of crowded dockets            and  multitudinous management  tasks.   But  even this  broad            discretion might be strained by a dismissal based solely on a            litigant's failure  to appear at a  deposition where illness,            incarceration or  some other powerful excuse  existed and was            brought to the  court's attention  in a timely  fashion.   In            this  instance, however,  Muckle's failure  to appear  at the                                         -4-            deposition  or status  hearing--despite notice  of both--does            not stand alone.                 It  appears  from  the  record  that  Muckle  filed  his            complaint on or about August 21, 1991, but did not  serve the            complaint  until January  7,  1992, well  after  the 120  day            period normally  fixed for service.2   When  Lotus sought  to            serve its answer,  the mailing to Muckle's record address was            returned, apparently because Muckle had moved in the meantime            without advising  Lotus.  Thereafter, Muckle  was located and            reserved on July 15, 1992, acknowledged receipt but then took            no   action  whatever   in  the   litigation  prior   to  his            incarceration  three  months'  later.     This  inaction   is            troublesome because  the magistrate  judge had  earlier fixed            October 31, 1992, as the cut-off date for discovery.                   It  also  appears  that  Muckle was  advised  of  Lotus'            October 6, 1992, deposition notice scheduling  his deposition            for  October 22, 1992,  and of the  district court's pretrial            conference scheduled  for October  26, 1992.   Muckle's later            explanation that he  was sentenced on  October 16, 1992,  and            thereafter  imprisoned in MCI Concord does not explain why at            some  point between October 6  and October 26  Muckle did not                                            ____________________            2.  Muckle does provide some  explanation for the delay which            may  have been  caused  in part  by  his initial  failure  to            provide the district court with the customary letter from the            EEOC.   This  letter, which  he had  received, said  that the            agency had found no grounds for proceeding with his complaint            and freed him to file the complaint in district court.                                         -5-            notify the court and Lotus that he might or would not be able            to  attend either of  the scheduled functions.   Although his            filings  do indicate  the  difficulties of  proceeding  under            prison conditions, they also indicate that he had access to a            telephone  by October  21; but  there is  no indication  that            either Lotus' counsel or the court was notified.                 Thus,  even apart  from questions  about whether  Muckle            made timely efforts to pursue the appeal after the October 27            judgment, Muckle's attention to this civil suit was seriously            deficient.  Against this background, we do not think that the            district  court could be held to have abused its considerable            discretion  if it  dismissed  the case  despite knowledge  of            Muckle's  incarceration.   Rather, dismissal  for failure  to            attend the  deposition--or at least  to notify the  court and            Lotus in advance that attendance might be or was impossible--            would represent  a permissible  judgment that Muckle  was not            taking seriously  his responsibilities to  the district court            or  the   defendant  in   litigation  that  he   himself  had            instigated.                  Nevertheless,  we think  that Muckle  is entitled  to an            informed  exercise of  the  district court's  discretion--and            that discretion belongs to the district court and not to us--            before the extreme  penalty of a dismissal  with prejudice is            visited on  him based on a  failure to appear.   Based on the            complaint alone, the district court has already said that the                                         -6-            allegations  cannot be  deemed frivolous.   While  Muckle has            been somewhat careless and dilatory, our review of the record            indicates that he has partial  explanations for at least some            of the  deficiencies and he is  a pro se litigant.   Since we            asked the district judge only  for a finding on reinstatement            of the appeal, he may well have thought it beyond his mandate            to  reconsider  the  dismissal.   Indeed,  Muckle  has  never            formally  asked  the   district  court   to  reconsider   its            dismissal.                 We think that the fair and efficient course is to vacate            the  judgment  dismissing the  case  and  to  remand for  the            district  court  to exercise  its  discretion  as to  whether            dismissal is warranted  and, if so,  whether with or  without            prejudice,  in light of its  current knowledge of  all of the            circumstances including  Muckle's incarceration.   The record            is now ample  and the district court  is not obliged  to have            any hearing  or entertain further  submissions before  making            its final determination.3                 Vacated and remanded.  No costs.                 ____________________                                            ____________________            3.  Muckle has moved for reconsideration of our order of July            23, 1993,  denying  his motions  which  sought to  amend  his            complaint and sought the  production of documents from Lotus.            The motion for reconsideration is denied.  We take no view on                                              _______            the merits of these  requests.  Because we have  remanded the            case, this denial is  without prejudice to Muckle  filing his            motions to amend and  for the production of documents  in the            district  court, in the event that that court reconsiders its            dismissal and reopens the case.                                         -7-
