USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 93-1041
THE ESTATE OF JOSE M. SOLIS-RIVERA, ET AL.
Plaintiffs, Appellants,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gilberto Gierbolini, U.S. District Judge]
___________________
____________________
Before
Selya, Circuit Judge,
_____________
Campbell, Senior Circuit Judge,
____________________
and Cyr, Circuit Judge.
_____________
____________________
Armando Cardona-Estelritz
_________________________
on brief for appellants.

and Isidro Garcia Pesquera Law Offi

________________________________

Isabel Munoz Acosta,

Assistant United States Attorney,
_____________________
Daniel F. Lopez-Romo, United States Attorney, on brief for the Uni
_____________________
States.
____________________
May 11, 1993
____________________

Per Curiam.
___________

Plaintiffs/appellants are

the widow

Jose M. Solis Rivera.

Plaintiffs

and children

of the late

brought this

action pursuant to the Federal

("FTCA"), 28 U.S.C.

2671

States

Department of

failed

to diagnose and

cancer.
dismissal

of

the

et seq., claiming that the United

__ ____

Veterans'

Plaintiffs

Tort Claims Act

Affairs ("VA")

treat Solis Rivera's

appeal

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,

On February 13, 1992, the government filed a motion to

dismiss the complaint, arguing that plaintiffs had improperly

filed their
Rivera

administrative claim in

and his

Rivera's

estate

heirs,
or

rather
in

individually as his heirs.

the

the name of

than in
names

the
of

Jose Solis

name of
the

Solis

plaintiffs

Plaintiffs did not respond to the

government's motion to dismiss within ten days of service, as

required by Local Rule 311.5
On March

of the District of Puerto Rico.

23, 1992, after more than

a month had passed since

service of the motion to dismiss, the district court

entered

an

order dismissing the complaint with prejudice for failure

to

diligently prosecute the

action.

judgment dismissing

the case was entered on March 31.

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Plaintiffs thereafter filed a

set aside

the court's order

motion to vacate and

and a motion to

reconsider the

judgment.
that

In

the motions,

he thought

the

plaintiffs' attorney

district court,

during

explained

a February

status conference, had approved a thirty-day period to answer

the

government's proposed

motion to

dismiss.

Plaintiffs'

attorney further explained that he had been busy with another

case for

three weeks, and asked

the court to impose

a less

severe sanction than dismissal with prejudice in light of the

isolated nature of his dilatory action.
On

May

29,

plaintiffs' request
dismissing

1992,

the

district

court

to vacate and set aside

the case.

On the same

its prior order

day, the court granted to

the government fifteen days to file a detailed

law in support of the motion to
February 13.

granted

memorandum of

dismiss that it had filed on

Plaintiffs were given ten days to respond.

On June 12, 1992, in compliance with the order, the

government

filed

the

support of

its motion

requested

an additional

more detailed
to dismiss.
five

days

memorandum
On June
to

of

23, plaintiffs

respond

ostensibly

because plaintiffs' attorney was unable to find in his

a contemporaneous motion to dismiss.
that

it

subsequently informed

law in

files

The government contends

plaintiffs' attorney

that a

copy of the motion

to dismiss filed on February 13, 1992 was

to

memorandum

accompany

its

-3-

of

law

of

June

12.

The

government

faxed

copy

of

the

motion

to

dismiss

to

plaintiffs' attorney on June 24.

Approximately a month passed with no
plaintiffs.
to

On July 29,

adjudicate, asking

prejudice because
motion

response from

1992, the government filed a motion

the

court to

plaintiffs had

dismiss the

failed to

case with

respond to

its

to dismiss twenty-nine business days after they filed

a request for an extension.

On

August

10,

1992,

plaintiffs filed

opposing the government's motion to adjudicate.

attorney claimed
was not
he had
complete
August

he was not

with another jury

an opposing
18,

1992,

plaintiffs

finally

that he

pleadings, and that

trial, but

memorandum within

motion

Plaintiffs'

informed until July 16

missing any of the government's

been busy

expected to

a day

or two.

filed

On

memorandum

opposing the government's motion to dismiss.

By

that

time,

however,

the

already entered an order dated August

with prejudice for lack of prosecution.

district court

had

12 dismissing the case

Judgment was entered

on August 19, 1992.

On

August

reconsideration.

They

25,

plaintiffs

filed

argued that (1) they

motion

for

had filed their

memorandum on August

18, before receiving the

dated August 12 and before

essentials

of

court's order

judgment was entered; and (2) the

plaintiffs'

opposition to

the

government's

-4-

motion to dismiss

had been tendered in plaintiffs'

March 27

motion to vacate.
On October 22,
order

1992, the district court

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

October 22, 1992 order dismissing the case without prejudice.

II.
II.
Rule
expressly

41(b) of the Federal Rules of Civil Procedure

authorizes

district court

to

dismiss

a case

"[f]or failure of the plaintiff to prosecute or comply with .

.

. any

order of

court."

"harsh sanction," Richman

_______

Dismissal

with prejudice
______________

v. General Motors Corp.,

____________________

is a

437 F.2d

196, 199 (1st Cir. 1971), which "should be employed only when

a plaintiff's misconduct has been extreme,"

Alegria, 896 F.2d
_______
the district
sanctions

Figueroa Ruiz v.
_____________

645, 647 (1st Cir. 1990),

court has determined

available

to

it

and "only after

'that none of

would

truly

the lesser

be appropriate,'"

Enlace Mercantil Int'l, Inc. v. Senior Indus., Inc., 848 F.2d

____________________________
___________________
315, 317 (1st Cir. 1988).
justified

if

disobedience

there
of

is

court

A finding of extreme misconduct is

extremely
orders,

protracted

ignorance

of

inaction,
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

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plaintiff's

case,

and

significant

amount of the district court's time.'"

Ruiz, 896 F.2d at 648

____
317).

We review

the

wasteful

expenditure

of

Figueroa
________

(quoting Enlace Mercantil, 848 F.2d at

________________

a district court's

dismissal for

lack of

prosecution only for an abuse of discretion.

E.g., Figueroa
____ ________

Ruiz, 896 F.2d at 647.

____
Plaintiffs

contend

that

the

district

court's

dismissal without prejudice is the functional equivalent of a

dismissal
limitations

with

prejudice

authorized in

(providing in substance
"begun within six months
notice

slip

op.

28

statute

U.S.C.

that, in an FTCA case,

suit must be

denial of the

appears to be no

of

2401(b),

after the date of mailing .

passed and there

equitable tolling.

the six-month

the FTCA,

of final [administrative]

long since

2102,

since

. . of

claim") had
likelihood of

See de Casenave v. United States, No. 92___ ___________

_____________
at

plaintiffs' initial

(1st Cir.

lawsuit

April

20,

was dismissed

1993)

for

(where

failure

to

abide by discovery orders, and record contains no evidence of

misconduct

on part of government, court "discern[s] no basis

under which the

district court could have

applied equitable

principles" to toll FTCA's six-month statute of limitations);

Pipkin v.
______

United States Postal Service,

_____________________________

951 F.2d

272, 274

(10th Cir. 1991) (refusing to toll FTCA six-month limitations

period

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

sanction of dismissal with prejudice.

The district

court may, indeed,

have been unaware

that the applicable statute of limitations had expired.

court's

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

plaintiffs' counsel's neglect, either before or after October

22,

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

deadlines was egregious.

If

the district

court had

dismissed with prejudice in these circumstances, we could not

____
say

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

court, which has

continuous

contact with attorneys, is best

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.

Aoude v. Mobil Oil Corp., 892 F.2d

_____
________________

1989), or

whether some

1115, 1118

lesser sanction

would be

more appropriate.
Given the
dismissal

from

district court's action

"with"

to

"without"

in changing the

prejudice,

persuaded to remand

to the same district judge

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

wishes to give plaintiffs

the present

we

of

a further

proceed.

In so

criticized for overlooking plaintiffs'

raised the limitations problem

ordinarily

consider

district court.

E.g.,
____

matter

below.

This

not

first

Boston Celtics Ltd.

___________________

Partnership v.
___________

Shaw, 908 F.2d

____

Still, we think
ourselves to

1041, 1045

(1st Cir.

1990).

the district court is better positioned than

determine

the course

of

justice here.

We,

therefore, vacate and remand, but emphasize that we leave the

choice entirely in the hands of the district court, which may
either choose to confirm the
reentry of

its previous

"death knell" of this action by

or some

else allow the case to proceed.

the

case to

either

that

proceed, the
present

other dismissal

If the district court allows

court may

counsel

responsibly

or that

new

plaintiffs.

The court may

order, or

wish to

will

counsel

in

will

assure itself

the
be

future

substituted

also consider whether to

act
by

impose,

-8-

as a condition to allowing
sanctions, to be
see that

the case to go forward, pecuniary

paid by present counsel

present counsel does

personally, and to

not bill its own

clients for

time related to its ineffective and annoying conduct to date.

Vacated and remanded for further proceedings in
___________________________________________________

accordance herewith.
____________________

Costs to appellee, to
be paid
___________________________________

personally by appellant's counsel.

_________________________________

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