Ortiz-Anglada v. Ortiz-Perez ( 1999 )

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit











No. 98-2164



                       DIANA ORTIZ-ANGLADA,



                      Plaintiff, Appellant,



                                v.



                 DR. HECTOR ORTIZ-PEREZ, 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



                      Lynch, Circuit Judge,

             Coffin and Cyr, Senior Circuit Judges.









     Kevin G. Little on brief for appellant.

     Alfonso Miranda Cardenas, Pedro J. Cordova, Jose A. Miranda

Daleccio, Jose E. O'Neill Font and Carlos A. Ortiz Morales on brief

for appellees.











July 19, 1999













     COFFIN, Senior Circuit Judge.  Plaintiff-appellant Diana Ortiz

Anglada claims that the district court abused its discretion when

it sua sponte and without notice dismissed her medical malpractice

action for lack of prosecution.  We agree that the circumstances do

not warrant such a harsh sanction, and therefore reverse.

     Ortiz filed this lawsuit on July 18, 1996, against Dr. Hector

Ortiz-Perez and the clinic for which he worked.  The case docket

reveals that proceedings occurred regularly through April 1, 1997.

Although the next docket entry is the dismissal order of August 4,

1998, it appears undisputed that activity involving both parties

continued at a normal pace through September 1997, when the

transcript of plaintiff's deposition was prepared and circulated.

In addition, the record shows that in January 1998 plaintiff was

evaluated by a psychologist in connection with the litigation.

     Thus, when the district court dismissed the suit, the docket

showed no activity for approximately 16 months, although the case

had been dormant for no more than about seven months.  Plaintiff

was given no warning that the court was considering dismissal, and,

indeed, there had been neither a conference with the judge nor a

scheduling order setting deadlines to move the case along.  See

Fed. R. Civ. P. 16(b) ("[T]he district judge . . . shall . . .

enter a scheduling order that limits the time . . . (2) to file

motions; and (3) to complete discovery.") The court's dismissal

order stated:

               It appears from the docket of this case that no

     action has been taken since March 19, 1997.  In view

     thereof, it is hereby ORDERED that this case be

     DISMISSED, for lack of prosecution.



     Seven days after entry of that order, Ortiz filed a request

for reconsideration that listed the discovery activity that had not

been reflected on the docket.  The court was unimpressed.  It noted

plaintiff's responsibility for developing and prosecuting her case

and its own responsibility "'to achieve the orderly and expeditious

disposition of cases,'" and concluded that "plaintiff's

protraction in the instant case is evident and unwarranted." The

court thus denied the motion, and this appeal followed.

     Although our case law gives the district court broad

discretion to dismiss a case to further its case management

responsibilities, disposition on the merits is favored and we

repeatedly have held that a case should not be dismissed with

prejudice except "when a plaintiff's misconduct is particularly

egregious or extreme," Benjamin v. Aroostook Medical Center, Inc.,

57 F.3d 101, 107 (lst Cir. 1995).  We have observed more than once

that

                    [i]n all the cases in which we have upheld a

          dismissal for want of prosecution, we have

          found either extremely protracted inaction

          (measured in years), disobedience of court

          orders, ignorance of warnings, contumacious

          conduct, or some other aggravating

          circumstance.



Cosme Nieves v. Deshler, 826 F.2d 1, 2 (lst Cir. 1987) (citing

cases); see also Benjamin, 57 F.3d at 108; Estate of Solis-Rivera

v. United States, 993 F.2d 1, 2 (lst Cir. 1993).

     Nothing of the sort occurred here.  Although the case may have

been progressing more slowly than ideal, and the long gap following

the last docketed action understandably troubled the court, it must

bear some responsibility for having failed to impose deadlines

through a scheduling order.  Plaintiff had no reason to suspect her

case was at risk, and plaintiff responded promptly to the

unexpected dismissal with a motion to reconsider it.  See Robson v.

Hallenbeck, 81 F.3d 1, 4 (lst Cir. 1996) ("[A]bsence of warning

that the court was considering dismissal . . . may be a pertinent

factor in evaluating a dismissal, especially if the conduct in

question did not violate a clear preexisting requirement."); Cosme

Nieves, 826 F.2d at 2 ("[Plaintiffs] responded immediately to the

only warning they received   the sua sponte dismissal   with a

motion to the court.")

     This court, and federal courts generally, have warned that the

drastic sanction of dismissal for want of prosecution "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."  Zavala Santiago v.

Gonzalez Rivera, 553 F.2d 710, 712 (lst Cir. 1977); see also Enlace

Mercantil Internacional v. Senior Industries, 848 F.2d 315, 317

(lst Cir. 1988).  This is a classic case for a lesser sanction.

There has been no showing of particular prejudice to the defendants

or the court and no deliberate disregard of deadlines.  See Robson,

81 F.3d at 2-3.   Indeed, in the absence of a scheduling order, any

action in these circumstances more severe than a warning that

plaintiff should activate and expedite her case seems excessive.

     Accordingly, we reverse the dismissal of plaintiff's case and

remand for further proceedings.  The district court retains the

discretion, of course, to dismiss the case if appropriate

circumstances arise.

     Reversed and remanded.