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Per Curiam.
___________
Plaintiffs/appellants are
the widow
Plaintiffs
and children
of the late
brought this
("FTCA"), 28 U.S.C.
2671
States
Department of
failed
to diagnose and
cancer.
dismissal
of
the
Veterans'
Plaintiffs
Affairs ("VA")
case
from
without
prosecution.
I.
the
negligently
prostate gland
district
prejudice
for
court's
lack
of
I.
Plaintiffs filed
1991.
their
complaint
on
August
19,
administrative claim in
and his
Rivera's
estate
heirs,
or
rather
in
the
the name of
than in
names
the
of
Jose Solis
name of
the
Solis
plaintiffs
entered
an
to
action.
judgment dismissing
-2-
and a motion to
reconsider the
judgment.
that
In
the motions,
he thought
the
plaintiffs' attorney
district court,
during
explained
a February
government's proposed
motion to
dismiss.
Plaintiffs'
a less
May
29,
plaintiffs' request
dismissing
1992,
the
district
court
the case.
On the same
granted
memorandum of
filed
the
support of
its motion
requested
an additional
more detailed
to dismiss.
five
days
memorandum
On June
to
of
23, plaintiffs
respond
ostensibly
it
subsequently informed
law in
files
plaintiffs' attorney
that a
to
memorandum
accompany
its
-3-
of
law
of
June
12.
The
government
faxed
copy
of
the
motion
to
dismiss
to
On July 29,
adjudicate, asking
prejudice because
motion
response from
court to
plaintiffs had
dismiss the
failed to
case with
respond to
its
August
10,
1992,
plaintiffs filed
he was not
an opposing
18,
1992,
plaintiffs
finally
that he
trial, but
memorandum within
motion
Plaintiffs'
expected to
a day
or two.
filed
On
memorandum
that
time,
however,
the
district court
had
August
reconsideration.
They
25,
plaintiffs
filed
motion
for
memorandum on August
of
court's order
plaintiffs'
opposition to
the
government's
-4-
motion to dismiss
March 27
motion to vacate.
On October 22,
order
denying plaintiffs'
modifying
prejudice.
the August
motion
12, 1992
Plaintiffs
appeal
issued an
for reconsideration,
order
from
to dismissal
the
district
but
without
court's
authorizes
district court
to
dismiss
a case
. any
order of
court."
Dismissal
with prejudice
______________
is a
437 F.2d
196, 199 (1st Cir. 1971), which "should be employed only when
Figueroa Ruiz v.
_____________
available
to
it
'that none of
would
truly
the lesser
be appropriate,'"
if
disobedience
there
of
is
court
protracted
ignorance
of
inaction,
warnings,
1, 2
to the
defendant, glaring
weaknesses in
the
-5-
plaintiff's
case,
and
significant
We review
the
wasteful
expenditure
of
Figueroa
________
a district court's
dismissal for
lack of
E.g., Figueroa
____ ________
contend
that
the
district
court's
with
prejudice
authorized in
(providing in substance
"begun within six months
notice
slip
op.
28
statute
U.S.C.
suit must be
denial of the
appears to be no
of
2401(b),
equitable tolling.
the six-month
the FTCA,
of final [administrative]
long since
2102,
since
. . of
claim") had
likelihood of
plaintiffs' initial
(1st Cir.
lawsuit
April
20,
was dismissed
1993)
for
(where
failure
to
applied equitable
951 F.2d
272, 274
during
dismissed
filing
without
of previous
prejudice
for
-6-
FTCA
lawsuit
failure
to
which was
prosecute).
Plaintiffs
argue
egregious
that
as to
their dilatory
justify what
conduct
is, in
was
effect, the
not so
ultimate
October 22
modification
dismissing
the
case
prejudice"
suggests
plaintiffs were
belief
on the
from
that
of
"with
the
its
prejudice"
court
may
in a position to refile
court's part
August
would
12
to
have
The
order
"without
felt
their case.
be understandable
that
Such a
given
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
If
the district
court had
it
had
abused its
discretion.
However, by
dismissing without
_______
prejudice, the
district
have
merciful
not
indicated
dereliction
upon
the
wish
heads of
to
plaintiffs
finally
court seems
visit
by
to
counsel's
barring the
action altogether.
A district
continuous
the
instance
first
sufficiently
whether
egregious to
an
able to judge in
attorney's
warrant the
direct and
misconduct
"death
is
knell" of
-7-
lawsuit, see
___
(1st Cir.
1989), or
whether some
1115, 1118
lesser sanction
would be
more appropriate.
Given the
dismissal
from
"with"
to
"without"
in changing the
prejudice,
persuaded to remand
to decide
given the
whether,
limitations problem, he
chance
by allowing
remanding,
we may be
failure to have
court
will
not
presented to the
surfacing of
action to
are
to allow him
the statute
the present
we
of
a further
proceed.
In so
consider
district court.
E.g.,
____
matter
below.
This
not
first
Partnership v.
___________
Still, we think
ourselves to
1041, 1045
(1st Cir.
1990).
determine
the course
of
justice here.
We,
its previous
or some
case to
either
that
proceed, the
present
other dismissal
court may
counsel
responsibly
or that
new
plaintiffs.
order, or
wish to
will
counsel
in
will
assure itself
the
be
future
substituted
act
by
impose,
-8-
as a condition to allowing
sanctions, to be
see that
personally, and to
clients for
accordance herewith.
____________________
Costs to appellee, to
be paid
___________________________________
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