USCA1 Opinion
September 7, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1010
PAUL L. MUCKLE,
Plaintiff, Appellant,
v.
LOTUS DEVELOPMENT,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
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Before
Selya, Boudin and Stahl,
Circuit Judges.
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Paul L. Muckle on brief pro se.
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Melinda Milberg and Glovsky & Associates on brief for appellee.
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Per Curiam. The appellant, Paul Muckle, appeals from a
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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
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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
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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
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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.
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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
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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
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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.
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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
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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.
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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
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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.
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