Hernandez v. Hernandez-Colon ( 1995 )


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  • USCA1 Opinion



    April 5, 1995 [NOT FOR PUBLICATION]


    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT


    ____________________


    No. 94-2169

    BENJAMIN HERNANDEZ, ET AL.,

    Plaintiffs, Appellants,

    v.

    JOSE HERNANDEZ-COLON, ET AL.,

    Defendants, Appellees.


    ____________________

    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF PUERTO RICO


    [Hon. Juan M. Perez-Gimenez, U.S. District Judge] ___________________

    ____________________

    Before

    Torruella, Chief Judge, ___________
    Selya and Boudin, Circuit Judges. ______________

    ____________________

    Peter John Porrata on brief for appellants. __________________


    ____________________


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    Per Curiam. Plaintiffs-appellants Benjamin ____________

    Hernandez and Liduvina Silva appeal the district court's

    denial of their motion pursuant to Fed. R. Civ. P. 60(b),

    seeking relief from the court's sua sponte dismissal of their ___ ______

    complaint for failure to prosecute pursuant to Fed. R. Civ.

    P. 41(b). We reverse and remand for proceedings consistent

    with this opinion.

    As the district court did not provide otherwise,

    its dismissal was with prejudice and on the merits. See ___

    LeBeau v. Taco Bell, Inc., 892 F.2d 605, 607 (7th Cir. 1989) ______ _______________

    (dismissal for want of prosecution was on the merits and

    "with prejudice" where judgment did not "otherwise state");

    Nagle v. Lee, 807 F.2d 435, 442-43 (5th Cir. 1987) (where _____ ___

    judgment did not state whether it was without prejudice, Rule

    41(b) requires court to treat dismissal as being with

    prejudice and on the merits).

    We review dismissals pursuant to Rule 41(b) for

    abuse of discretion. Pinero Capo v. United States, 7 F.3d ___________ _____________

    283, 284 (1st Cir. 1993). We normally respect, and

    encourage, the efforts of district courts to manage their

    dockets decisively. Still, in this instance, the unrebutted

    information in the record indicates that the plaintiffs were

    prosecuting their case and had not disregarded any rule or

    order. Although this may not have been clear at the time



















    that the district court dismissed the action sua sponte, the ___ ______

    facts were brought out on the Rule 60(b) motion.

    Only 91 days passed between the filing of the

    complaint and its dismissal by the district court.

    Plaintiffs had not disobeyed any court orders or ignored any

    warnings, since none had been issued. Compare Pinero Capo, 7 _______ ____________

    F.3d at 284 (affirming Rule 41(b) dismissal where appellants

    had repeatedly violated discovery orders despite clear

    warnings that dismissal would result and the court had first

    imposed lesser sanctions). Nor had appellants violated any

    procedural rules. Although plaintiffs failed to serve

    defendants during that 91-day period, Fed. R. Civ. P. 4(m)

    and Local Rule 313.1(A) permit service to be made within 120

    days of the filing of a complaint. Cf. Jardines Bacata, Ltd. ___ _____________________

    v. Diaz-Marquez, 878 F.2d 1555, 1560 (1st Cir. 1989) (holding ____________

    that it was an abuse of discretion to dismiss case against

    certain defendants for lack of prosecution where plaintiffs

    had complied with D.P.R.L.R. 313.1(B)).

    This case is not before us on direct appeal of the

    dismissal order, however. It is an appeal from the district

    court's denial of plaintiffs' Rule 60(b) motion. Rule 60(b)

    provides, in relevant part, as follows:

    On motion and upon such terms as are
    just, the court may relieve a party or
    party's legal representative from a final
    judgment, order or proceeding for the
    following reasons: (1) mistake,



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    inadvertence, surprise, or excusable
    neglect . . . .

    We review denials of Rule 60(b) motions for abuse of

    discretion. de la Torre v. Continental Ins. Co., 15 F.3d 12, ___________ ____________________

    14 (1st Cir. 1994). "[T]he trial court's exercise of

    discretion must be colored by a recognition that, because

    Rule 60(b) is a vehicle for 'extraordinary relief,' motions

    invoking the rule should be granted 'only under exceptional

    circumstances.'" Id. (citations omitted). ___

    Although plaintiffs failed to specify the section

    of Rule 60(b) upon which they relied, it is apparent that

    they sought relief for the reason of their "excusable

    neglect" of their case. The Rule 60 motion referred to

    "personal problems" between appellants (who are married) that

    had hampered their ability to communicate with their

    attorney, leading to their attorney's withdrawal and,

    ultimately, to the dismissal of the complaint for failure to

    prosecute. Plaintiffs also stated in their Rule 60(b)

    motion, which was filed by the same attorney who had

    previously withdrawn, that they had begun discovery and that

    the delay in serving the summonses resulted from a tactical

    decision to take depositions before completing service.

    Ordinarily, we do not look with favor on the use of

    a Rule 60(b) motion to perform the office of a motion under

    Rule 59(e), which is subject to a 10-day limitation. On the

    other hand, the dismissal in this case was without prior


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    warning and followed immediately upon the heels of the

    withdrawal by plaintiffs' attorney. Nor is there any

    evidence of prejudice from the delay. Under all of these

    circumstances, we conclude that the Rule 60(b) motion should

    have been granted. See Carter v. United States, 780 F.2d 925 ___ ______ _____________

    (11th Cir. 1986) (reversing denial of Rule 60(b) motion

    seeking relief from Rule 41(b) dismissal under similar

    circumstances); see also Link v. Wabash Railroad Co., 370 ___ ____ ____ ____________________

    U.S. 626, 632 (1962) (noting that the lack of prior notice of

    Rule 41(b) dismissal for lack of prosecution is "of less

    consequence" given "the escape hatch provided by Rule

    60(b).")

    We intend no criticism of the able district judge

    who, at the time of the dismissal, could easily have believed

    that the case was not being seriously pursued by the

    plaintiffs. But in light of the subsequent information

    provided, we do not think that the dismissal can stand.

    Plaintiffs are now on notice that they must pursue their case

    seriously and without further delay.

    For the foregoing reasons, the district court's

    denial of the Rule 60(b) motion is reversed and the case is ________

    remanded to the district court for proceedings consistent ________

    with this opinion.







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