USCA1 Opinion
April 15, 1996
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 95-1595
J. DONALD ROBSON, ET AL.,
Plaintiffs, Appellants,
v.
GILMAN HALLENBECK, ET AL.,
Defendants, Appellees.
____________________
No. 95-1983
J. DONALD ROBSON, ET AL.,
Plaintiffs, Appellees,
v.
GILMAN HALLENBECK, ET AL.,
Defendants, Appellants.
____________________
ERRATA SHEET
ERRATA SHEET
The opinion of this court issued on April 3, 1996 is amended as
follows:
On page 7, paragraph 2, line 2, add the word "to" before the word
"meet."
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1595
J. DONALD ROBSON, ET AL.,
Plaintiffs, Appellants,
v.
GILMAN HALLENBECK, ET AL.,
Defendants, Appellees.
____________________
No. 95-1983
J. DONALD ROBSON, ET AL.,
Plaintiffs, Appellees,
v.
GILMAN HALLENBECK, ET AL.,
Defendants, Appellants.
____________________
APPEALS 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 Lynch,
Circuit Judges.
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Michael T. Phelan for plaintiffs.
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John C. Ottenberg with whom Berry, Ottenberg, Dunkless & Parker
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was on consolidated brief for defendants.
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April 3, 1996
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BOUDIN, Circuit Judge. The plaintiffs, J. Donald and
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Sandra Robson, brought suit against Gilman Hallenbeck and Dan
DiCarlo, alleging that the defendants breached fiduciary
duties owed to the Robsons, administered a trust in a grossly
negligent manner, and committed fraud. The details of this
action need not be discussed, since the principal issue in
the plaintiffs' appeal is procedural and we decline the
defendants' invitation to reach the merits on their cross-
appeal. But because the case was ultimately dismissed on
account of the plaintiffs' conduct in pre-trial proceedings,
a description of the events leading up to the dismissal is
required.
At a pre-trial conference on September 30, 1994, the
district judge entered an order that required the parties to
meet a series of deadlines in preparation for trial, which
was set for May 1, 1995:
By April 10, 1995, the parties were to file a
stipulation of uncontested facts, together with a
statement of issues to be tried and a list of
witnesses for each side.
By April 17, the parties were to submit lists
of proposed exhibits.
By April 24, the parties were to file notices
of any objections to proposed exhibits or expert
witnesses.
The parties were also directed to make exhibits available to
the opposing party for inspection, to file a trial brief by
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the day of trial, and to file requests for rulings of law on
the day of trial.
The plaintiffs' attorney, Michael Phelan, failed to
attend the September 1994 pre-trial conference, but received
notice of the order and its timetable. Under circumstances
described more fully below, the plaintiffs did not meet the
April 10 deadline for filing the stipulation of uncontested
facts. The plaintiffs also failed to file a list of proposed
exhibits by April 17. The parties dispute whether the
plaintiffs made their exhibits available for review by
defense counsel reasonably in advance of April 24, the
deadline for filing objections to proposed exhibits.
Finally, the plaintiffs filed their requests for rulings of
law on May 9, eight days late.
On May 1, when the trial was scheduled to begin,
attorney Phelan appeared in court 15 minutes late and
discovered that the judge had already dismissed the case with
prejudice for failure to comply with the court's pre-trial
order. The plaintiffs filed a motion to vacate the order of
dismissal; the district judge denied it without opinion on
May 24, 1995. On June 22, 1995, the judge denied without
opinion the plaintiffs' motion to reconsider their motion to
vacate.
On appeal, the Robsons argue that the district court
abused its discretion in dismissing the case because their
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actions did not amount to "extreme" misconduct, see Enlace
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Mercantil Internacional v. Senior Industries, 848 F.2d 315,
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317 (1st Cir. 1988), that any violations of the pre-trial
order were excusable and did not prejudice the court or the
defendants, and that a lesser sanction would have been
appropriate.
It is hard to find an area of law in which the governing
rules are, and probably have to be, so vague. Admittedly, a
district court has broad authority to enforce pre-trial
discipline and to dismiss a case for failure to obey pre-
trial orders. Fed. R. Civ. P. 16(f), 41(b); see Link v.
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Wabash Railroad Co., 370 U.S. 626 (1962). The difficulty is
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that the range of circumstances is so vast, and the problems
so much matters of degree, as to defy mechanical rules. What
the cases, taken together, do is to set forth a list of
pertinent considerations.
Among those commonly mentioned (this list is not
complete) are the severity of the violation, the legitimacy
of the party's excuse, repetition of violations, the
deliberateness vel non of the misconduct, mitigating excuses,
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prejudice to the other side and to the operations of the
court, and the adequacy of lesser sanctions.1 Mindful that
case management is a fact-specific matter within the ken of
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1See Figueroa Ruiz v. Alegria, 896 F.2d 645, 648 (1st
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Cir. 1990); 9 C. Wright & A. Miller, Federal Practice and
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Procedure 2370 (2d ed. 1995).
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the district court, reviewing courts have reversed only for a
clear abuse of discretion. Damiani v. Rhode Island Hosp.,
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704 F.2d 12, 17 (1st Cir. 1983) (collecting cases).
There is also a procedural dimension. Although Rules 16
and 41 do not formally require any particular procedure,
counsel's disregard of a prior warning from the court
exacerbates the offense, and the lack of warning sometimes
mitigates it. Velazquez-Rivera v. Sea-Land Service, Inc.,
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920 F.2d 1072, 1078 (1st Cir. 1990). Ordinarily, the
plaintiff is given an opportunity to explain the default or
argue for a lesser penalty; but again there is no mechanical
rule. Link, 370 U.S. at 632. The presence or absence of an
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explanation by the district court may also be a factor. See
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Damiani, 704 F.2d at 17.
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In this instance, our main concern is that despite an
apparent pattern of noncompliance by plaintiffs' counsel,
factual disputes exist over the extent of the misconduct,
including excuses offered as to each of the episodes, that
have never been resolved by the district court. Cf. Richman
___ _______
v. General Motors Corp., 437 F.2d 196, 199-200 (1st Cir.
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1971). If we were dealing in this case with a minor act of
negligence rather than a pattern, dismissal might appear
harsh where no prior warning was given and there was no
showing of special prejudice to the opponents or the court.
See Velazquez-Rivera, 920 F.2d at 1077-78.
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In considering the likely bases for the dismissal, we
put to one side plaintiffs' failure to attend the pre-trial
hearing, since there is no indication that the district court
considered it in deciding to dismiss the case. We also
ignore Phelan's 15-minutes late arrival on the day of trial,
because by the time he arrived for trial, the court had
already dismissed the case without considering whether his
lateness was excused. What remains is to consider whether
the missed pre-trial deadlines, taken together, provide an
adequate basis for dismissal. They might well do so but in
each instance Phelan has offered some excuse that has never
been addressed.
1. Late filing of stipulation of uncontested facts.
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The parties did not start discussing the stipulation until
April 3, when the defendants' attorney, John Ottenberg, sent
Phelan a draft of a proposed stipulation by fax. On April 6,
Ottenberg advised that he wished to add one witness for the
defense. On April 7, a Friday and the last business day
before the stipulation was due, Phelan sent back a draft with
changes. The defendants say that in addition to modifying
the proposed facts, Phelan made unauthorized alterations to
the defendants' list of witnesses.
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The defendants found some of these changes unacceptable
and sent another draft to Phelan on that same day. Phelan
did not respond until after the close of business on April
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10, when he sent a further draft, which the defendants
rejected. No joint stipulation was filed, and on April 11,
Phelan contacted a court clerk, who advised him to file his
own version of the stipulation. Although defendants filed a
separate stipulation on April 12, Phelan did not do so until
April 20.
Phelan says he contracted a sinus and lung infection
during the time the parties were negotiating the stipulation.
This might account for his delay in filing his version of the
stipulation, but it does not explain why he waited so long
before starting to discuss the stipulation with the
defendants. At best, Phelan's conduct appears careless, but
it is difficult to tell without knowing why Phelan did
nothing until Ottenberg seized the initiative.
2. Late filing of exhibit list due April 17. Phelan
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also failed to meet the deadline of April 17 for filing a
list of exhibits; he filed the list a week late on April 24.
Phelan claims that his illness prevented his filing the
exhibits on time, and further that a court clerk told him
"there should be no problem" if he filed the list within a
week after the deadline. Phelan's position is weakened by
his failure to file a motion, but there is certainly
mitigation if he did suffer a serious illness in this time
frame, a matter the district court did not address.
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3. Failure to make exhibits available for review.
_________________________________________________
Ottenberg says he requested access to the plaintiffs'
exhibits on April 3 and again on April 17, but that Phelan
did not respond. Phelan, in contrast, asserts that the
exhibits were available for review on April 14. It is hard
to know which account is correct, and the district court made
no finding on the point.2
On appeal, Phelan argues that the pre-trial order did
not set a deadline for making exhibits available to the other
side. But on any reasonable reading, the order required the
parties to make exhibits available reasonably in advance of
April 24, when objections to the proposed exhibits were due.
Far from supporting Phelan, this defense detracts from his
position.
The need for remand is evident. If Phelan was at fault
in all three episodes, dismissal was within the district
court's discretion; on the other hand, Phelan offers excuses
for all three and there are no findings to resolve the
matter. We leave it open to the district court to reinstate
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2There is some reason to question Phelan's claim that
the exhibits were available as early as April 14. According
to the defense, on April 27, Ottenberg's paralegal called
Phelan and offered to exchange copies of exhibits. Phelan
said he would have his exhibits copied by the next day. On
April 28, the last business day before trial, Phelan informed
Ottenberg that the copies were not ready but the exhibits
were available for review and Ottenberg could use the copier
in Phelan's office.
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the dismissal if it supportably finds a pattern of unexcused
noncompliance with the court's order.
We reject now the Robsons' alternative arguments as to
why such a pattern even if proved could not justify dismissal
in this case. First, the Robsons argue that there is no
showing of prejudice, such as the loss of a witness for the
defense. In our view, such a specific showing of prejudice
would aggravate the misconduct, but is not necessary to
justify dismissal. Cf. Figueroa Ruiz v. Alegria, 896 F.2d
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645, 649 (1st Cir. 1990). Repeated disobedience of a
scheduling order is inherently prejudicial, because
disruption of the court's schedule and the preparation of
other parties nearly always results.
Second, the Robsons argue that the sanction of dismissal
is too severe in these circumstances. There might be some
merit to the plaintiffs' argument if we were faced with a
single instance of careless misconduct. A succession of
violations, however, indicating a general unwillingness to
comply with a court-imposed scheduling order, is for us
enough to justify dismissal. Calendars are simply too
crowded for parties to treat scheduling orders as optional
and to conduct trial preparations at their own convenience.
Finally, the Robsons point to the absence of warning
that the court was considering dismissal. This may be a
pertinent factor in evaluating a dismissal, especially if the
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conduct in question did not violate a clear preexisting
requirement. In this case, however, the scheduling order is
clear and by its terms requires the parties to meet certain
deadlines. A court need not provide warning that dismissal
will result from repeated violations of such an order.
The defendants have cross-appealed from the district
court's denial on March 9, 1994 of their motion to dismiss,
for judgment on the pleadings, and for summary judgment. The
denial of the defendants' motion is not independently
appealable as a final order. See Pedraza v. Shell Oil Co.,
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942 F.2d 48, 54-55 (1st Cir. 1991), cert. denied, 502 U.S.
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1082 (1992). This court has said it will generally not
review denials of summary judgment or the like ancillary to a
different appealable order, although it has stopped short of
saying such review is always foreclosed. Id.; see 10 C.
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Wright et al., Federal Practice and Procedure 2715, at 636-
__ ___ ______________________________
38 (2d ed. 1983).
Assuming this court could choose to review the denial of
defendants' motions on an ancillary basis, we are certain
that this is not the case for such an exception to the
general rule against such review of an otherwise non-final
order. The cross-appeal here attempts to present a factually
complex summary judgment claim that is not closely related to
our review of the appealable order dismissing the case for
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misconduct. There is no simple, abstract legal question
whose resolution now might avoid a lengthy trial.
In vacating the order of dismissal and remanding for
further proceedings, we are not suggesting that explicit
findings with respect to a party's misconduct and excuses are
necessary for every such dismissal. In many cases findings
may be easily inferred from the record. What is difficult
here is that there are at least three different episodes of
misconduct, the plaintiffs' counsel has proffered an excuse
for each, and the district court has not expressed any view
on the matter that would permit us to provide effective
review.
The judgment of the district court is vacated and the
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case is remanded for further proceedings.
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