Zavala Santiago v. Gonzalez Rivera, 76-1034

• Decision Date: 21 April 1977
• Docket Number: No. 76-1034,76-1034
• Citation: 553 F.2d 710
• Parties: Eduardo ZAVALA SANTIAGO et al., Plaintiffs, Appellants, v. Alfredo GONZALEZ RIVERA et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 710

553 F.2d 710

Eduardo ZAVALA SANTIAGO et al., Plaintiffs, Appellants, v. Alfredo GONZALEZ RIVERA et al., Defendants, Appellees.

No. 76-1034.

United States Court of Appeals, First Circuit.

Submitted Dec. 15, 1976.

Decided April 21, 1977.

German A. Gonzalez, Caguas, P. R., and Manuel E. Moraza Choisne, Hato Rey, P. R., on brief, for appellants.

Emeterio Maldonado Guzman, Arecibo, P. R., on brief for appellees.

Before COFFIN, Chief Judge, ALDRICH and CAMPBELL, Circuit Judges.

COFFIN, Chief Judge.

The sole issue presented in this case is whether the district court abused its discretion in dismissing plaintiff's suit for want of prosecution. On June 6, 1975, plaintiffs Eduardo Zavala Santiago and Juan A. Rivera Cosme, instituted an action under 42 U.S.C. § 1983 in which they alleged that defendants, the mayor and municipality of Arecibo, had discharged them by reason of plaintiffs' political activities on behalf of one element of the Popular party. The district court denied their request for a temporary restraining order, but because it believed that it was in the interest of all concerned for there to be a prompt decision on plaintiffs' request for injunctive relief, the district court commendably issued a "show cause" order which would ensure that a full hearing could occur on October 22, 1975.

The order scheduled a hearing for that date, and it established a timetable for the necessary pre-trial activities. It ordered the following: (1) that defendants be served with a copy of plaintiffs' complaint by June 27; (2) that defendants file their answer within 20 days of the date of service; (3) that plaintiffs submit affidavits of each of their witnesses by July 15; (4) that defendants file affidavits of their witnesses by August 4; (5) that the parties announce whether they intended to cross-examine any witnesses by August 18; (6) that the parties interchange documentary evidence by September 2; (7) that each side submit a pretrial order by September 15; (8) that plaintiffs submit their brief by September 30; and (9) that defendants submit their brief by October 15. The district court further scheduled a pre-trial conference before the United States Magistrate on October 9, at 9:30 a. m. The court could not have done more to establish a framework for the efficient processing of this litigation.

Unfortunately, it is painfully clear from the record that neither party was disposed to comply with either the letter or the spirit of the district court's order. Plaintiffs' complaint was served on June 24, but that was the only act which occurred within the time periods established by the show cause order. On July 10, four days before the answer was due, defendants requested a thirty day extension for the filing of their answer, and this request was granted by the clerk of the court on July 21. On August 29 after the answer had been due defendants requested a second thirty day extension. The district court denied this request on September 9. On October 2, 1975, almost two months after the answer had been due under the terms of the original extension order, defendants finally filed their answer. During the intervening period, neither side had taken any of the other steps required by the district court's show cause order.

October 9 was the scheduled date for the pre-trial conference. Defendants' counsel appeared, but plaintiffs' counsel neither appeared nor apprised the court that he would be unable to do so. The magistrate thereupon recommended that the action be dismissed for want of prosecution. The district court agreed that this course of action was proper. It found that plaintiffs' counsel's failure either to appear at the pre-trial conference or to excuse himself was utterly unjustifiable, and, noting both that it had been placed in a position in which it would be unable to try the case on October 22 and that, apart from serving the complaint on defendants, plaintiffs had failed to prosecute the suit in any manner, it entered the dismissal order. It further found that plaintiffs had filed the action in bad faith, and it awarded defendants' attorney fees of $200.

A district court unquestionably has the authority to dismiss a case with prejudice for want of prosecution; this power is necessary to prevent undue delays in the disposition of pending cases, docket congestion, and the possibility of harassment of a defendant. See Link v. Wabash R. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); 9 Wright & Miller, Federal Practice and Procedure § 2370 at 199. Because of the strong policy favoring the disposition of cases on the merits, see Richman v. General Motors Corp., 437 F.2d 196, 199 (1st Cir. 1971), we, and federal courts generally, have frequently warned that dismissals for want of prosecution are drastic sanctions, which should be employed only when the district court, in the careful exercise of its discretion, determines that none of the lesser sanctions available to it would truly be appropriate. ¹ See Asociacion de Empleados v. Rodriguez Morales, 538 F.2d 915 (1st Cir. 1976); Richman v. General Motors Corp., supra. See also Durgin v. Graham, 372 F.2d 130, 131 (5th Cir. 1972). But we have not hesitated to affirm dismissals of suits for want of prosecution in appropriate cases. See Pease v. Peters, 550 F.2d 698 (1st Cir. 1977); Asociacion de Empleados v. Morales, supra; cf. Luis Forteza e Hijos, Inc. v. Mills, 534 F.2d 415 (1st Cir. 1976).

Here, we observe that some of the factors which would counsel strongly in favor of an outright dismissal were not present. The case had only been pending for a short period, less than four months, before it was dismissed, and it occupied very little of the district court's time. We note also that the defendants were too guilty of dilatory conduct: failing to file their answer until October 2 and themselves taking none of the steps required by the show cause order. But we nevertheless are persuaded that it was not an abuse of discretion for the district court to resort to the ultimate sanction of dismissal.

We have noted our general view that, where an injunction is sought to obtain reinstatement in public employment, "it behooves the plaintiff to act promptly."...