USCA1 Opinion
March 31, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1859
FERMIN ALVAREZ-SILVA,
Plaintiff, Appellant,
v.
ISAAC RUDMAN,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Selya and Boudin, Circuit Judges.
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Jose R. Franco Rivera on brief for appellant.
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Per Curiam. Plaintiff/appellant Fermin Alvarez
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Silva appeals from a July 16, 1993 district court order
denying his second motion for reconsideration following the
court's sua sponte dismissal of his case for lack of
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prosecution pursuant to Fed. R. Civ. P. 41(b). For the
reasons stated below, we affirm.
I.
On August 6, 1991, plaintiff, a resident of Puerto
Rico, filed a complaint alleging a claim for injurious
falsehood against defendant Isaac Rudman, a resident of the
Dominican Republic. On June 29, 1992, the district court
issued an order to show cause why the case should not be
dismissed for lack of prosecution. In the order, the
district court stated that "almost eleven months have elapsed
since the complaint was filed; but plaintiff has not yet
served the defendant." Plaintiff responded by filing a
motion requesting until July 31, 1992 to effect service of
process. Plaintiff stated in the motion that if he did not
serve the defendant by the end of July, he would move for
voluntary dismissal of the case.
The additional requested time lapsed without
service of process.1 Thereafter, instead of moving for
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1. Plaintiff explains his failure to complete service of
process during the first year by stating that his process
server went to Santa Domingo, Dominican Republic on two
occasions to attempt personal service. Plaintiff also
states: "In several other occasions [sic], plaintiff
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voluntary dismissal, defendant requested authorization to
serve process by publication. On October 9, 1992, the
district court issued a second order to show cause why the
case should not be dismissed for lack of prosecution. In
response, plaintiff brought to the court's attention his
pending motion to serve process by publication, and the court
allowed this motion. On November 18, 1992, the court issued
a summons by edict. Over two months later, on January 29,
1993, the edict was finally published in a Puerto Rican
newspaper.2 Following publication, plaintiff sent a copy of
the complaint and edict by certified mail to the defendant
and received a signed, return receipt dated April 12, 1993.
On May 7, 1993, plaintiff moved for entry of default. On May
10, 1993, the district court dismissed the case for lack of
prosecution pursuant to Fed. R. Civ. P. 41(b). The same day,
the clerk entered default against the defendant.
On May 18, 1993, plaintiff filed a motion for
reconsideration of the dismissal order. After judgment on
the dismissal order was entered on the docket on May 21,
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followed rumors that the defendant would fly into Puerto Rico
in other non-related matters. Such rumors proved unfounded."
2. According to the plaintiff, the delay in publication was
caused by the failure of the clerk's office to mail him the
edict. Plaintiff alleges that although he submitted a form
edict to the clerk's office on or about October 31, 1992, he
did not learn that the edict had been issued until the first
week in January 1993 when he instructed his secretary to call
the clerk's office.
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1993, plaintiff renewed his motion for reconsideration on
June 1, 1993. The district court entered an order denying
the motion for reconsideration on June 24, 1993. On July 2,
1993, plaintiff filed a second motion for reconsideration.
This motion was denied by order entered on July 20, 1993 when
the court "[f]or the third and final time" reiterated its
dismissal order. Plaintiff filed his notice of appeal on
July 29, 1993.
II.
Dismissal for failure to prosecute is a significant
sanction but where a plaintiff is truly dilatory, the choice
of sanction is a matter within the discretion of the district
court and is reviewed under an abuse of discretion standard.
In this realm, claims of "abuse of discretion typically `have
not received a sympathetic ear from us.'" Figueroa Ruiz v.
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Alegria, 896 F.2d 645, 647 (1st Cir. 1990) (quoting Damiani
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v. Rhode Island Hospital, 704 F.2d 12, 17 (1st Cir. 1988)).
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Almost two years elapsed from the time the
complaint was filed to the point when the case was dismissed.
During that time, plaintiff had done nothing except effect
service and then, belatedly, filed a motion for default. The
first year was marked by unexplained delays in seeking to
affect service. Even the second year presented lapses of
diligence. In particular:
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First, plaintiff apparently delayed publishing
notice for over two months after notice by publication was
approved by the district court. Although counsel says that
he did not know of the entry of the court's order, counsel
has a duty after submitting a request to the court to monitor
the docket.
Second, although notice was published on January
29, 1993, calling upon the defendant to answer within 30 days
from the date of publication and warning that default could
otherwise occur, there is no indication that plaintiff took
further steps to prosecute the case until May. The default
motion was filed more or less at the time that the district
court determined to dismiss the case.
We agree that the district court may well have been
unaware of the belated default motion at the time the court
dismissed the case for want of prosecution. But the court's
order on reconsideration made clear that the court did not
regard the belated default motion as a timely effort and did
not think that the belated motion justified retaining the
case on its docket.
We think that the overall progress of this case has
been marked by a lack of serious intent. In a time of
crowded dockets and urgent matters, the kind of on-and-off
again efforts exhibited by plaintiff in this case are not
appropriate and need not be tolerated. The district court
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was lenient at the outset but eventually its patience became
exhausted. We do not regard its decision as an abuse of
discretion.
Affirmed. See 1st Cir. R. 27.1.
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