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Giancola v. JohnsonDiversey, 05-1673 (2005)

Court: Court of Appeals for the First Circuit Number: 05-1673 Visitors: 3
Filed: Dec. 01, 2005
Latest Update: Feb. 21, 2020
Summary: JOHNSONDIVERSEY, a/k/a, JOHNSON WAX PROFESSIONAL, ET AL., Barry M. Ryan and Doherty Wallace Pillsbury and Murphy on, brief for appellee Chemstar Corporation.of plaintiff's motion for reconsideration.court's choice of dismissal as the appropriate sanction.Ashcroft, 375 F.3d 45, 50 (1st Cir.
                  Not for Publication in West's Federal Reporter
                 Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                          For the First Circuit

No. 05-1673
                              ROBERT GIANCOLA,

                           Plaintiff, Appellant,

                                        v.

                        JOHNSONDIVERSEY, a/k/a
                  JOHNSON WAX PROFESSIONAL, ET AL.,

                          Defendants, Appellees,
                            ___________________

         JOSE RIBEIRO, d/b/a RIBEIRO'S CLEANING SERVICE,

                   Third-Party Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Nathaniel M. Gorton, U.S. District Judge]


                                     Before

                          Boudin, Chief Judge,
              Campbell and Stahl, Senior Circuit Judges.


     Kevin MacMurray on brief for appellant Robert Giancola.
     Lee Stephen MacPhee, Philip M. Hirshberg and Morrison
Mahoney on brief for appellee JohnsonDiversey.
     Barry M. Ryan and Doherty Wallace Pillsbury and Murphy on
brief for appellee Chemstar Corporation.
     Kevin M. Carroll and Eric A. Nissen on brief for third-party
appellee Jose Ribeiro.


                              December 1, 2005
           Per curiam.       This is an appeal from the district

court's dismissal of this product liability case as a sanction

for plaintiff's repeated failure to show up at his scheduled

depositions and to produce relevant documents requested by the

defense,   despite    warnings      and,   ultimately,      a    court     order

requiring him to do so.      Essentially for the reasons stated by

the district court in its thorough and well-reasoned 19-page

decision, we affirm both the dismissal and the subsequent denial

of plaintiff's motion for reconsideration.

                              DISCUSSION

           We   previously   reserved      judgment    on       the    threshold

question, flagged by the clerk's office in an order to show

cause, of whether plaintiff's appeal from the judgment was

timely.    In the interests of judicial economy, we now by-pass

that potentially thorny issue to reach the relatively easy merits

of this appeal.      See Rivera-Martinez v. Ashcroft, 
389 F.3d 207
,

209 (1st Cir. 2004), cert. denied, 
125 S. Ct. 2963
(2005).

           This court's review of discovery sanctions, including

the choice of sanctions, is highly deferential.                       See, e.g.,

Sheppard v. River Valley Fitness One, L.P., 428 f.3d 1, 6 (1st

Cir. 2005).     Where, as here, the district court's thorough and

well-reasoned     decision   demonstrates       that     it      applied     the

appropriate factors and weighed them appropriately, no abuse of

discretion can be found.      
Id. -2- On
appeal, plaintiff does not contest the factual

findings made by the district court or its conclusion that

sanctions were appropriate.      Rather, he focuses on the district

court's    choice   of   dismissal     as     the    appropriate   sanction.

Specifically, he argues that dismissal was excessive because

plaintiff's "failure to comply [with his discovery obligations]

was   a   product   of   the   degenerating         relationship   with    his

attorney[,]    [c]ompounded      by     the     District    Court's       order

perpetuating this relationship despite the obvious breakdown."

That argument is unavailing for several reasons.

            First, as a general matter, dismissal is an appropriate

sanction for discovery violations where, as here, the district

court had previously warned plaintiff that dismissal was a

possible sanction, HMG Prop. Investors, Inc. v. Parque Indus. Rio

Canas, Inc., 
847 F.2d 908
, 918 (1st Cir. 1988), and plaintiff's

noncompliance was not "a single isolated mishap," 
id. (quotation marks
and citation omitted).           Second, plaintiff's attempt to

blame his misconduct on his former attorney is inapt.              See Link

v. Wabash R.R. Co., 
370 U.S. 626
, 634 n.10 (1962); Georcely v.

Ashcroft, 
375 F.3d 45
, 50 (1st Cir. 2004).             And, third, because

plaintiff did not appeal from the order requiring his counsel to

remain for the duration of discovery, he cannot be heard to

complain about that order.




                                      -3-
            The denial of plaintiff's motion for reconsideration is

also affirmed for the same reasons.           In addition, to the extent

that the motion for reconsideration was premised largely on

challenges to the district court's factual findings, which are

not pressed in plaintiff's appellate brief, those challenges are

deemed abandoned.      United States v. Romain, 
393 F.3d 63
, 68 (1st

Cir. 2004), cert. denied, 
125 S. Ct. 2924
(2005).

            Accordingly, the district court's judgment of dismissal

and   denial     of   plaintiff's    motion    for   reconsideration   are

affirmed.      See Local R. 27(c).




                                     -4-

Source:  CourtListener

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