Corchado v. Puerto Rico Marine Management, Inc.

• Decision Date: 15 January 1982
• Docket Number: 81-1260,81-1259,81-1256,81-1204,81-1286 and 81-1335,Nos. 81-1183,s. 81-1183
• Citation: 665 F.2d 410
• Parties: Juan CORCHADO, Plaintiff-Appellant, v. PUERTO RICO MARINE MANAGEMENT, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 410

665 F.2d 410

Juan CORCHADO, Plaintiff-Appellant, v. PUERTO RICO MARINE MANAGEMENT, INC., Defendant-Appellee.

Nos. 81-1183, 81-1204, 81-1256, 81-1259, 81-1260, 81-1286

and 81-1335.

United States Court of Appeals, First Circuit.

Argued Nov. 2, 1981.

Decided Dec. 8, 1981.

Rehearing Denied Jan. 15, 1982.

Harry A. Ezratty, San Juan, P.R., for appellant.

Herbert W. Brown, III, San Juan, P.R., with whom Law Offices of Jimenez & Fuste, San Juan, P. R., was on brief, for appellee.

Before CAMPBELL, BOWNES, and BREYER, Circuit Judges.

BOWNES, Circuit Judge.

The issue on appeal is whether the district court abused its discretion in dismissing this case for failure to comply with discovery orders and failure of plaintiff's counsel to attend a pretrial conference. We affirm the dismissal.

Plaintiff-appellant, Juan Corchado, is a merchant seaman who allegedly incurred two knee injuries while aboard one of defendant-appellee's vessels, the SS Fortaleza. Corchado retained Attorney Bernard Rolnick, a New York lawyer, to represent him. Rolnick referred the case to Wilfredo Geigel, a Puerto Rican attorney who brought a complaint which was filed in the District Court of Puerto Rico on March 31, 1980. ¹ Summons was issued on the same day, but service of process was not made until June 22, 1980. ² A timely answer was filed on July 7, 1980, and, at the same time, interrogatories, a request for production of documents and a notice of the taking of plaintiff's deposition on August 5, 1980, were sent to Attorney Geigel. The date of the deposition was changed by agreement of counsel to August 13, 1980. When the plaintiff arrived for his deposition, he was accompanied not only by Attorney Geigel, but also by another attorney, Harry Ezratty. Ezratty stated at the outset of the deposition: "Let me, at this time, for the record, state that I am co-counsel with Wilfredo Geigel. I have not filed a formal appearance but I will be filing one shortly. But, for the record, I am co-counsel."

In plaintiff's brief, which is signed only by Ezratty, ³ he describe his role in the case as follows:

Sometime thereafter (after suit was filed by Attorney Geigel), CORCHADO contacted Harry A. Ezratty, also of the Puerto Rico bar requesting that Ezratty assume representation of the case. CORCHADO said he would dismiss both Geigel and Rolnick as counsel. Since Ezratty had at one time been Rolnick's partner and had been closely associated with Geigel, he declined. Some months later, on CORCHADO's insistence, Ezratty agreed with Rolnick and Geigel to serve, without fee and merely as a consultant, to handle the technical aspects of the case involving ship's maneuvers and medical damages. In this connection, Ezratty obtained the services of an expert in ship's handling and presented CORCHADO to a physician who would act for the plaintiff as an expert Orthopod.

Part of the agreement made between counsel was that Ezratty would not try the case and he would be notified of all matters in the case by Geigel. Copies of all documents would be sent to him so that he would be made aware of the proceedings in the case. Unfortunately, this was not done in all instances. While Ezratty was notified of CORCHADO's deposition and did in fact attend and worked on several interrogatories and discovery documents with Geigel, Ezratty was not notified of due dates of answers to interrogatories, pretrial conferences, the trial date and a deposition Geigel took of CORCHADO's shipmate who was present at one accident.

At CORCHADO's deposition, Ezratty stated he was "co-counsel", he did not however at any time file a Notice of Appearance with the District Court; Ezratty did not receive any notices from the District Court as to any of the dates or deadlines or the setting of any conferences. Ezratty performed no other work than act as consultant, until he prepared a set of interrogatories, immediately prior to dismissal of this case. Geigel did not place Ezratty's name on any pleadings or motions, nor was he authorized to do so.

During the month of December, Ezratty discovered that Geigel was leaving Puerto Rico on holiday. Ezratty volunteered to prepare and file answers to defendant's interrogatories. At that time Ezratty was not notified by Geigel that CORCHADO was under Court order to file interrogatories by a certain date. Ignorant of this fact, Ezratty prepared the interrogatories and while doing so was informed by PRMMI's counsel of the Court's order. It was already passed (sic) the deadline. Ezratty filed the answers to interrogatories as quickly as possible. PRMMI's counsel knew they had been prepared and that Ezratty would personally deliver them, since Ezratty's office is engaged in a great deal of litigation with defendant's counsel and would be in his office on other matters. Ezratty was also informed of the pretrial conference by PRMMI's counsel.

In the interim, Ezratty attempted to contact Geigel on his return to Puerto Rico to discuss the pre-trial order and its contents. He was never able to get Geigel at his office. Although Ezratty left many messages, Geigel never returned the calls.

On the eve of the pre-trial, knowing that no pre-trial order had ever been prepared, (this knowledge was received from counsel for PRMMI), Ezratty called Rolnick directly in New York, since Geigel remained unavailable. Rolnick then agreed that new counsel should enter the case especially since Mr. CORCHADO was pressuring both Rolnick and Ezratty for this. The next day, Geigel appeared at the pretrial conference alone and notified the Magistrate of this. Geigel did not know that interrogatories had already been prepared and were ready.

What ever the reasons for Ezratty's half-in, half-out appearance in this case, it is clear that from the date of plaintiff's deposition there was not only a lack of communications between him and Geigel, but that neither of them assumed the responsibility for responding to discovery requests and orders.

There was a status conference before the magistrate on November 20, 1980, attended by Geigel and the attorney for the defendant at which a discovery schedule was set and a pretrial conference scheduled for January 23, 1981. An order of the court affirming the date of the pretrial conference and specifying what would be required at the conference was issued on November 25, 1980. A pretrial order form was sent to the attorneys with instructions that it be completed and filed seven days prior to the conference. Plaintiff's attorneys failed to comply with the order in any respect.

We can understand plaintiff's claim that the failure to be examined by defendant's doctor was not his fault because he appeared three times at the doctor's office but was told that the doctor was too busy to examine him each time. If that were the only discovery dereliction, we would be constrained to be charitable, but it is the only one for which plaintiff offers any kind of reasonable excuse.

On December 15, 1980, the court ordered a status conference before Judge Gierbolini on February 11, 1981, and a trial date of February 17 was fixed. In response to defendant's motion of December 8, 1980, to compel answers to interrogatories and for sanctions, the magistrate on December 15, 1980, ordered: "The outstanding discovery shall be answered by December 17, 1980, or sanctions may follow." Plaintiff failed to respond. On December 23, 1980, defendant moved again for sanctions. This motion states that defendant's attorney telephoned plaintiff's counsel on December 18 and was assured that...