Velazquez-Rivera v. Sea-Land Service, Inc.

• Decision Date: 13 September 1990
• Docket Number: SEA-LAND,No. 90-1371,VELAZQUEZ-RIVERA,90-1371
• Citation: 920 F.2d 1072
• Parties: Luis Felipe, et al., Plaintiffs, Appellants, v.SERVICE, INC., et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1072

920 F.2d 1072

18 Fed.R.Serv.3d 588

Luis Felipe VELAZQUEZ-RIVERA, et al., Plaintiffs, Appellants, v. SEA-LAND SERVICE, INC., et al., Defendants, Appellees.

No. 90-1371.

United States Court of Appeals, First Circuit.

Heard Sept. 13, 1990.

Decided Dec. 18, 1990.

Michael Avery with whom Leonardo Llequis, was on brief, for plaintiffs, appellants.

Nicolas Delgado-Figueroa, on brief, for appellees.

Before SELYA, Circuit Judge, COFFIN and BOWNES, Senior Circuit Judges.

COFFIN, Senior Circuit Judge.

After appellants' attorney failed to appear for a scheduled pretrial conference, the district court dismissed the complaint and fined the attorney $1,000. Appellants argue on appeal that, while sanctions were appropriate, dismissal of the action constituted an abuse of discretion. We agree that, in the circumstances of this case, the court imposed an excessive sanction and we therefore vacate the dismissal.

I. FACTS

This action was instituted as a grievance filed with the Puerto Rico Labor Relations Board by seven plaintiffs. The Board issued a complaint against both the defendant union and the company on behalf of two plaintiffs, Luis Felipe Velazquez-Rivera and Santos Correa. Defendants, in early April 1989, removed the action to federal district court. On April 20, 1989, the Puerto Rico Labor Relations Board withdrew from representation of the plaintiffs in accordance with its fiscally-motivated policy of not representing claimants in actions removed to the federal courts.

On May 4, 1989, the district court ordered plaintiffs to retain counsel within 15 days, and on May 17, scheduled a pretrial conference for October 26, 1989. On July 19, the court gave notice to the plaintiffs that if they did not retain counsel, the court would have no alternative but to force them to proceed pro se, and gave five days for plaintiffs to comply. Shortly before the scheduled pretrial conference in October, the plaintiffs finally retained counsel of record, Leonardo Llequis. He, however, informed the plaintiffs that previously scheduled appointments would prevent him from attending the October 26th pretrial conference. The plaintiffs appeared personally and requested a later pretrial conference, and the court rescheduled the session for November 20. Attorney Llequis was notified by telephone.

On November 14, Llequis met with defendants' attorneys to agree upon the pretrial report. A thorough report was drafted; the defendants then prepared and signed a final copy, which was mailed to Llequis for his signature and filing. On November 20, attorneys for appellees appeared for the pretrial conference, but Llequis failed to appear. The court dismissed the action and fined Llequis $1,000. The court made no detailed findings, merely noting on the docket that, although counsel "was notified previously of this hearing by phone," he "did no[t] appear." Llequis subsequently signed and filed the report on November 22, unaware as yet that he had negligently missed the pretrial conference.

After receiving notice of the dismissal, Llequis filed a motion for reconsideration, explaining his negligence. He acknowledged the seriousness of his failure, but indicated that the error was caused by an improper notation in his diary, referring to a pretrial conference for the "Gonzalez" case rather than the "Velazquez" case. After seeing the appointment in his diary, he checked the files of all of his clients named Gonzalez, and, finding no scheduled conference on that date, concluded that he had made an error in notation of the date. He was partially reassured in this belief by the fact that October 26 was a legal holiday in Puerto Rico and Puerto Rico state courts therefore were not in session. ¹ He requested that sanctions be imposed as appropriate against himself as attorney, but that, the plaintiffs not being at fault, the dismissal of the action be set aside. The district court denied the motion for reconsideration without comment and entered judgment in accordance with the November 20 order.

II. DISCUSSION

A. Relevant Rule

The court's order did not specify the grounds for dismissal, and Velazquez argues that dismissal must have occurred, but was not appropriate, under Rule 41(b). ² Dismissal, however, was more specifically authorized by Fed.R.Civ.P. 16(f), ³ which allows the court on its own initiative to impose the sanction of dismissal, where "just," for failure to appear at pretrial conferences. ⁴ See Societe Internationale Pour Participations Industrielles et Commerciales, S.A. v. Rogers, 357 U.S. 197, 207, 78 S.Ct. 1087, 1093, 2 L.Ed.2d 1255 (1958) (where more specific federal rule applies to the facts, Rule 41(b) is not the authority governing sanctions). Both Rule 37(b)--referenced in Rule 16(f)--and Rule 41(b), however, govern dismissals for failing to comply with court orders. As this court has noted, "[w]hile Rule 37 and Rule 41 address significantly different problems, the same considerations are at work whenever a sanction precludes disposition of a case on the merits." United States v. Pole No. 3172, Hopkinton, 852 F.2d 636, 642 (1st Cir.1988). See also Malone v. United States Postal Service, 833 F.2d 128, 130 (9th Cir.1987) (indicating that the standards for dismissal are essentially the same under Rules 41(b), 16(f) and 37(b)); Price v. McGlathery, 792 F.2d 472, 474 (5th Cir.1986) (same). We therefore shall analyze the decision under the strictures of Rule 37(b)(2), as directed by Rule 16(f), but also shall review cases involving dismissals for failure to appear at pretrial conferences and similar disobedience of court orders that have been analyzed under Rule 41(b) and the court's inherent power.

B. Standard of Review

The choice of sanctions for failing to comply with a court order lies with the district court, and we may not lightly disturb a decision to dismiss. Spiller v. U.S.V. Laboratories, Inc., 842 F.2d 535, 537 (1st Cir.1988). The question is not whether we would have imposed a more lenient penalty had we been sitting in the trial judge's place, but whether the court abused its discretion in imposing the sanction it did. Id. at 537 (citing National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 642, 96 S.Ct. 2778, 2780, 49 L.Ed.2d 747 (1976)).

This does not mean, however, that we will rubber-stamp the decisions of the district court. See Damiani v. Rhode Island Hospital, 704 F.2d 12, 17 (1st Cir.1983). Both Rules 16(f) and 37(b) allow the imposition of only those sanctions that are "just." As we have noted, "[d]ismissal with prejudice 'is a harsh sanction,' Richman v. General Motors Corp., 437 F.2d 196, 199 (1st Cir.1971), which runs counter to our 'strong policy favoring the disposition of cases on the merits.' " Figueroa Ruiz v. Alegria, 896 F.2d 645, 647 (1st Cir.1990) (quoting Zavala Santiago, 553 F.2d at 712). See also Pole No. 3172, 852 F.2d at 642. ⁵ While the most severe sanction of dismissal must be available not merely to penalize egregious conduct but also to deter such conduct, National Hockey League, 427 U.S. at 643, 96 S.Ct. at 2781, fairness requires that some limits be placed on its use.

In determining whether conduct is sufficiently serious to warrant the harsh action of dismissal, the court must consider all of the factors involved, Damiani, 704 F.2d at 17. A court is not necessarily required to take less severe action before imposing the sanction of dismissal, Farm Constr. Services, Inc. v. Fudge, 831 F.2d 18, 20 (1st Cir.1987), but dismissal should be employed only if the district court has determined that it could not fashion an "equally effective but less drastic remedy," Pole No. 3172, 852 F.2d at 642. See also Enlace Mercantil Internacional, Inc. v. Senior Industries, Inc., 848 F.2d 315, 317 (1st Cir.1988); Zavala Santiago, 553 F.2d at 712.

C. Application

We have reviewed numerous cases from our circuit involving dismissals to aid our determination of whether the conduct at issue here was sufficiently culpable to warrant the most severe penalty. We find no case in which a plaintiff's misconduct has been so limited in both time and incidents, so bereft of any suggestion of purpose or bad faith, and so devoid of disadvantage to the adverse party and the progress of the litigation. In sum, what happened were two failures of plaintiffs at the outset to obtain counsel, resulting in a warning by the court that they would be required to go ahead at a pretrial conference without counsel; a belated successful retention of counsel resulting in a month's extension of the conference; and a final inadvertent ⁶ if inexcusable failure of counsel to attend the conference in preparation for which he had diligently helped adversarial counsel to prepare the underlying report. We conclude, after reviewing the factors this court previously has considered significant, that this misconduct is insufficient to warrant the extreme sanction of dismissal.

We begin by noting that plaintiffs' initial lack of representation was not willful; they were forced to obtain new counsel because defendants removed the case to federal court. Although this lack of responsibility does not excuse tardy compliance with the court's order to acquire counsel, this type of disobedience must be distinguished from more deliberate avoidance of discovery or delays in filing required pleadings, particularly where the only apparent delay caused by the disobedience is the postponement of one pretrial conference. Addressing the default that actually triggered the dismissal--counsel's failure to appear at the pretrial conference--we think that the record is clear that this was the result of a simple mistake, not the result of willfulness or bad faith. In addition, only days before the conference date, Llequis had met with defense counsel to prepare the pretrial report, and the defendants brought the report to the conference. The court therefore had no reason to believe that plaintiffs' attorney deliberately was...