Hoover v. Suffolk ( 1995 )

USCA1 Opinion

        December 7, 1995        [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT











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        No. 95-1521



                                BENJAMIN HOOVER, JR.,



                                Plaintiff, Appellant,



                                          v.



               SUFFOLK UNIVERSITY LAW SCHOOL BOARD OF TRUSTEES, ET AL.,



                                Defendants, Appellees.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                        FOR THE DISTRICT OF MASSACHUSETTS



                     [Hon. William G. Young, U.S. District Judge]
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                                 ____________________



                                        Before



                                 Selya, Cyr and Stahl,

                                   Circuit Judges.
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            Benjamin Hoover, Jr. on brief pro se.
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            Michael L. Rosen, Paul V. Lyons, and Foley, Hoag & Eliot on  brief
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        for appellees.





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                 Per  Curiam.    The  district court  dismissed  Benjamin
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            Hoover's 42 U.S.C.    1981 suit for his counsel's  failure to



            attend  a status conference.  Hoover now appeals.  We affirm.







                 After  Hoover's case  had been  pending for  nearly four



            months, the  court issued a notice  advising Hoover's counsel



            that it would hold a status conference in two weeks.  Counsel



            asserts  that she did not receive this notice, but, five days



            before the  conference was  to take  place,  Hoover told  her



            about  it.   Counsel then  called a  district court  clerk to



            reschedule the  conference.    After  discussion,  the  clerk



            declined  to reschedule,  warning  counsel  that  failure  to



            attend the conference would result in dismissal of the  case.



            Several hours  before the conference was  held, counsel moved



            for a continuance, which was denied.  She did not  attend the



            conference.   Her motion  advanced only one  colorable reason



            for not attending.   It averred that the date "was  a problem



            with  regard to other matters I had scheduled for that date."



            Concluding, apparently,  that counsel had no  good reason for



            failing to appear, the court dismissed the action.



                 Our cases make clear that a district court may dismiss a



            case with prejudice if plaintiff or counsel has willfully  or



            unjustifiably disobeyed  a court  order.  Compare  Barreto v.
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            Citibank, N.A., 907 F.2d 15, 16 (1st Cir. 1990), and Goldman,
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            Antonetti,   Ferraiuoli,   Axtmayer  &   Hertell   v.  Medfit
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            International, Inc., 982 F.2d 686, 692  (1st Cir. 1993), with
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            Velazquez-Rivera  v. Sea-Land Service,  Inc., 920  F.2d 1072,
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            1076-77  (1st Cir.  1990) and  Benjamin v.  Aroostook Medical
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            Center, Inc., 57 F.3d 101, 108 (1st Cir. 1995).  Hoover bears
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            the burden  of establishing the  requisite excuse or  lack of



            willfulness.   Taylor v. Medtronics, Inc.,  861 F.2d 980, 987
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            (6th Cir. 1988); Adkins v. United States, 816 F.2d 1580, 1582
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            (Fed.  Cir.  1987) (dismissals  for  failure  to comply  with



            discovery orders).  Counsel  has offered no valid explanation



            for  her failure to attend the conference, and so we conclude



            that dismissal was not an abuse of discretion.



                 Affirmed.  See 1st Cir. Loc. R. 27.1.
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