Robson v. Hallenbeck

• Decision Date: 06 February 1996
• Docket Number: 95-1983,Nos. 95-1595,s. 95-1595
• Citation: 81 F.3d 1
• Parties: J. Donald ROBSON, et al., Plaintiffs, Appellants, v. Gilman HALLENBECK, et al., Defendants, Appellees. J. Donald ROBSON, et al., Plaintiffs, Appellees, v. Gilman HALLENBECK, et al., Defendants, Appellants. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1

81 F.3d 1

34 Fed.R.Serv.3d 738

J. Donald ROBSON, et al., Plaintiffs, Appellants, v. Gilman HALLENBECK, et al., Defendants, Appellees.

J. Donald ROBSON, et al., Plaintiffs, Appellees, v. Gilman HALLENBECK, et al., Defendants, Appellants.

Nos. 95-1595, 95-1983.

United States Court of Appeals, First Circuit.

Heard Feb. 6, 1996.

Decided April 3, 1996.

Appeals from the United States District Court for the District of Massachusetts, Hon. Edward F. Harrington, U.S. District Judge.

Michael T. Phelan, Lynn, MA, for plaintiffs.

John C. Ottenberg with whom Berry, Ottenberg, Dunkless & Parker, Boston, MA, was on consolidated brief for defendants.

Before SELYA, BOUDIN and LYNCH, Circuit Judges.

BOUDIN, Circuit Judge.

The plaintiffs, J. Donald and 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 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 actions did not amount to "extreme" misconduct, see Enlace Mercantil Internacional v. Senior Industries, 848 F.2d 315, 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. Wabash Railroad Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). The difficulty is 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, 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 the district court, reviewing courts have reversed only for a clear abuse of discretion. Damiani v. Rhode Island Hosp., 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., 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, 82 S.Ct. at 1389-1390. The presence or absence of an explanation by the district court may also be a factor. See Damiani, 704 F.2d at 17.

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.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.

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. 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.

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 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...