
USCA1 Opinion

	




        May 27, 1994            [Not for Publication]                                [Not for Publication]                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 93-2091                                    WALTER HODGE,                                Plaintiff, Appellant,                                          v.                       AMERICAN HOME ASSURANCE COMPANY, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Raymond L. Acosta, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Cyr, Boudin, and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Carlos R. Noriega for appellant.            _________________            John  E. Mudd  with whom  Dario Rivera-Carrasquillo  and  Cordero,            _____________             _________________________       ________        Miranda & Pinto were on brief for appellees.        _______________                                 ____________________                                 ____________________                      Per  Curiam.    Plaintiff-appellant   Walter  Hodge                      ____________            appeals  the district court's  grant of defendant-appellees',            American Home  Assurance Co. and  Underwriter Adjustment Co.,            motion to dismiss with prejudice.  We affirm.                                          I.                                          I.                                          __                                      BACKGROUND                                      BACKGROUND                                      __________                      Plaintiff  filed a  complaint on  October 3,  1989,            alleging  that defendants  had  failed to  reimburse him  for            damages to  his insured property  resulting from a  series of            earthquakes on the island  of St. Martin.   Defendants argued            that the damages  were the result of faulty  construction and            therefore exempt from coverage.                      On the eve of the trial and almost four years after            the  date of  filing  of the  complaint,  defendants filed  a            motion in limine, seeking to disqualify plaintiff's liability                   __ ______            expert for lack  of qualifications.   The motion was  granted            and  thereafter, plaintiff's  counsel  sought to  withdraw as            counsel, claiming irreconcilable differences with his client.            This motion was denied and the trial began as scheduled.                        During opening  arguments,  in clear  disregard  of            Fed. R. Evid.  408, plaintiff's counsel referred  to an offer            of  settlement  apparently   made  by   defendants.     After            sustaining  defendants'  objection  and  warning  plaintiff's            counsel not  to refer  to settlement negotiations,  the court            instructed   the  jury   to   disregard   counsel's   remark.                                         -2-                                          2            Notwithstanding the court's  admonition, plaintiff's  counsel            resumed his opening  by telling the jury that  the defendants            were   unwilling  to   settle.     Defendants   objected  and            immediately moved for a mistrial.  After discussion with both            parties,  the   court  declared   a  mistrial  and   informed            plaintiff's  counsel that  "Upon  request of  counsel I  will            impose  what I consider a  non resident bond,  to defray some            costs in this case."  Plaintiff's counsel did not object.                      On May 10, 1993,  the court issued a written  order            setting forth its reasons  for declaring a mistrial.   In the            same order,  the court  also  granted defendants'  D.P.R.L.R.            3041   motion requesting plaintiff post  a $3000 non-resident                                            ____________________            1.  D.P.R.L.R. 304 states, in relevant part, that:                           When  the   plaintiff  is  domiciled                      outside of  Puerto Rico  or is  a foreign                      corporation, a bond  shall be required to                      secure the costs, expenses and attorneys'                      fees   which   may  be   awarded.     All                      proceedings in  the action may  be stayed                      until bond is posted,  which shall not be                      less than $250.00.  The Court may require                      an  additional bond  upon a  showing that                      the  original  bond  is   not  sufficient                      security, and may stay the proceedings in                      the action until  such additional bond is                      given.                           After the  lapse of sixty  (60) days                      from  the service of  the order requiring                      bond  or  additional  bond, without  bond                      having been posted, the Court may dismiss                      the action.                           This   rule   shall   be   liberally                      interpreted in favor of the  plaintiff so                      as not  to preclude  his or her  right to                                         -3-                                          3            bond "to secure the costs, expenses and attorneys' fees which            may be awarded."     Plaintiff   neither   objected  to   nor            complied with  this order.  Subsequently,  defendants filed a            verified, detailed bill of costs in the amount of  $73,079.99            for  expenses   incurred  in  preparation  for  the  defense,            together with  a motion  requesting the non-resident  bond be            increased to $50,000.   The court granted defendants' motion.            Again, plaintiff  neither objected to nor  complied with this            court order.                      After plaintiff had ignored the court's bond  order            for  sixty  days,  the  time prescribed  by  D.P.R.L.R.  304,            defendants moved  to dismiss the  action pursuant to  Fed. R.            Civ. P. 41(b)2 and D.P.R.L.R. 304.                                            ____________________                      sue  through excessive  bond requirement.                      Consistent with this, the Court, for good                                                       ________                      cause  shown,  may  dispense   with  this                      ____________                      requirement. (emphasis supplied).            2.  Fed. R. Civ. P. 41(b) states:                      (b)    Involuntary   Dismissal:    Effect                      Thereof.  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  specified,  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.                                         -4-                                          4                      On August 25, 1993, the court, in a lengthy written            order,  dismissed the case with prejudice pursuant to Fed. R.            Civ.  P.  41(b)  citing,  inter  alia,  plaintiff's   extreme                                      _____  ____            misconduct in failing to obey court orders and warnings.  The            following day, plaintiff's counsel,  who had not yet received            a copy of the  August 25, 1993 order, requested,  inter alia,                                                              _____ ____            an additional thirty  days to  post bond.   On September  20,            1993,  the court issued  a separate order  restating that the            case was  dismissed with  prejudice as  of  August 25,  1993.            Finally,  on September  22, 1993,  the court  formally denied            plaintiff's  request for  additional time.    It is  from the            court's judgment of dismissal  with prejudice that  plaintiff            now appeals.                                          II.                                         II.                                         ___                                      DISCUSSION                                      DISCUSSION                                      __________                      Plaintiff   avers   that  the   court   abused  its            discretion  because  it  never  gave  consideration  to   the            problems that  had ensued  between plaintiff and  counsel and            because the court never  considered plaintiff's inability  to            pay  the required bond.  The basis of plaintiff's argument is            that the  court should  have inferred  from his  motion filed            August 26, 1993, the day after the court dismissed the action                                     _____            with prejudice, that plaintiff was seeking a new attorney and            that he did  not have the finances  to pay the bond.   We are            not persuaded by either argument.                                         -5-                                          5                      The parameters of Fed.  R. Civ. P. 41(b) dismissals            are very clear:                      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                      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).                      _________            Estate of Solis-Rivera v.  United States, 993 F.2d 1,  2 (1st            ______________________     _____________            Cir.  1993).   We  review a  court's Fed.  R.  Civ. P.  41(b)            dismissal for  abuse of  discretion.   Pinero Capo v.  United                                                   ___________     ______            States, 7 F.3d 283, 284 (1st Cir. 1993).              ______                      We begin  by noting  that plaintiff has  waived any            complaint he may  have with  the amount  of the  non-resident            bond imposed  by the  court below.   A  review of the  record            reveals  that each  of  the bond  orders  was issued  without                                         -6-                                          6            prejudice  to   either  party  to  request   an  increase  or            reduction.   Nonetheless, plaintiff  neither objected  to the            imposition  of the bonds nor  argued to the  court that there            existed circumstances  which  demanded  a  reduction  in  the            amount.   Rather, plaintiff silently ignored  the bond orders            thereby  waiving his right to challenge them on appeal.3  See                                                                      ___            McCoy v. Massachusetts Institute  of Technology, 950 F.3d 13,            _____    ______________________________________            22 (1st Cir.  1991) ("It  is hornbook law  that theories  not            raised squarely  in the district court cannot be surfaced for            the first time on appeal.").                       Moreover, we are not concerned with the personality            conflicts  that   may  have  existed  between  plaintiff  and            counsel.  Although  unfortunate for  the two men,  we do  not            understand how  the fact  that there  may have  been friction            could possibly have prevented  the plaintiff from posting the            required bond.                      Finally, in light of plaintiff's repeated inability            to  comply  with  court  warnings  and  court  orders,  i.e.,                                                                    ____                                            ____________________            3.  Even  had we  not found  waiver, we see  no error  in the            court's  orders.   As previously  held, when  reviewing Local            Rule  5,  D.P.R.C.R.  304's  predecessor,  the court  "should            consider, upon proper motion, reducing the . . . minimum bond                      ____ ______ ______            requirement, or dispensing with it altogether . . . ."  Hawes                                                                    _____            v. Club Ecuestre El  Comandante, 535 F.2d 140, 144  (1st Cir.               ____________________________            1976)(emphasis   supplied).    Only  then  should  the  court            consider   "ownership  by   a  nondomiciliary   plaintiff  of            attachable  property  in  the  district,  the  likelihood  of            success  on the merits, the presence of a co-plaintiff who is            domiciled in the district, the probable length and complexity            of  the litigation,  the conduct  of  the litigants,  and the            purposes of the litigation."  Id. (footnotes omitted).                                          ___                                         -7-                                          7            plaintiff's  failure  to   comply  with  the  court's   order            addressed   to  the   expert  witness   requesting  documents            regarding  his  qualifications   as  an  expert,  plaintiff's            counsel's  repeated  in-   court  references  to   settlement            negotiations in  flagrant disregard  of the court's  warning,            and  plaintiff's refusal to comply with  the court's two bond            orders, together with  what the court perceived as a weakness            in  plaintiff's case due to  the lack of  expert testimony to            support his claims, we do not find that the court's action in            dismissing  the   case  with   prejudice  was  an   abuse  of            discretion.                                         III.                                         III.                                         ____                                      CONCLUSION                                      CONCLUSION                                      __________                      For  the  foregoing  reasons,   the  order  of  the            district court is                       Affirmed.  Costs to Appellees.                      Affirmed.  Costs to Appellees.                      _________  ___________________                                         -8-                                          8
