Robinson v. Tonis ( 1995 )

USCA1 Opinion

        June 14, 1995           [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT





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        No. 94-2316



                                 WILLIAM J. ROBINSON,



                                Plaintiff, Appellant,



                                          v.



                               DAVID P. TONIS, ET AL.,



                                Defendants, Appellees.





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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                     [Hon. Robert B. Collings, Magistrate Judge]
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                                        Before



                                Torruella, Chief Judge,
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                           Selya and Stahl, Circuit Judges.
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            William J. Robinson on brief pro se.
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            Frank A. Smith, III  and Frank A. Smith III & Associates, P.C.  on
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        brief for appellees.





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                      Per Curiam.  The court did not abuse its discretion
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            in first denying plaintiff a continuance and later dismissing



            plaintiff's  action with  prejudice  when plaintiff  did  not



            appear  for trial.   Plaintiff had  sufficient notice  of the



            trial date and adequate time to prepare.  Plaintiff's hope or



            expectation  that his  case  would not  be  tried until  mid-



            November  was   unjustified,  for   it  was   quite  possible



            throughout   that   the   intervening   case   would  settle.



            Consequently, plaintiff  should  have been  ready to  proceed



            when the case did settle.



                      Plaintiff argues that dismissal with  prejudice was



            too harsh because  he had  not exhibited a  pattern of  delay



            (instead, he had duly appeared at all prior conferences)  and



            because, plaintiff  believes, defendant  would not  have been



            prejudiced  had  plaintiff been  permitted  to  reinstate his



            case.   We disagree.  A continuance had been properly denied,



            the jury  had  been empaneled,  and  trial was  scheduled  to



            proceed when  plaintiff failed to appear.  The district court



            was well within its discretion in concluding that plaintiff's



            disregard  for the  court's  scheduling  order warranted  the



            harshest  sanction.    See  Goldman,  Antonetti,  Ferraiuoli,
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            Axtmayer  & Hertell v. Medfit Int'l, Inc., 982 F.2d 686, 691-
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            92 (1st Cir. 1993); Barreto v. Citibank, 907 F.2d 15, 16 (1st
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            Cir.  1990)  (dismissal  warranted  to  deter  litigants from











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            misconduct impeding the court's ability to manage its limited



            resources).



                      We  reject   plaintiff's  attack  on   the  court's



            allowance of costs  to defendant.   Even if  -- as  plaintiff



            asserts --  defendant agreed not  to seek costs  if plaintiff



            discontinued his case,  plaintiff essentially repudiated that



            agreement by moving  to vacate the court's order of dismissal



            and to set his case for trial.



                      Affirmed.
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