Radiocentro Inc. v. Altos Computer ( 1992 )

USCA1 Opinion

          September 15, 1992    [NOT FOR PUBLICATION]






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          No. 92-1401

                               RADIOCENTRO, INC., ETC.,
                                Plaintiff, Appellant,

                                          v.

                               ALTOS COMPUTER SYSTEMS,
                                 Defendant, Appellee.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

                    [Hon. Raymond L. Acosta, U.S. District Judge]
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                              _________________________

                                        Before

                                Selya, Circuit Judge,
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                            Aldrich, Senior Circuit Judge,
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                             and Boyle,* District Judge.
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               Ciro A. Betancourt  and Eduardo A.  Betancourt on brief  for
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          appellant.
               Maggie Correa Aviles, Jaime E. Toro Monserrate and McConnell
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          Valdes Kelley Sifre Griggs & Ruiz Suria on brief for appellee.
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          *Chief Judge,  United States District  Court for the  District of
          Rhode Island, sitting by designation.



















                    Per  Curiam.  Suit was started in this case on November
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          27, 1990.  Early  on, the defendant sought basic discovery by way

          of interrogatories, Fed. R. Civ. P. 33, and requests for document

          production, Fed.  R. Civ. P.  34.  When  the plaintiff failed  to

          respond  in  a  timeous  fashion,  defendant  formally  requested

          compliance.  See D.P.R. Loc. R. 311.11.  After two such requests,
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          plaintiff agreed that it would comply  with the pending discovery

          initiatives within a week.  It failed to do so.

                    On  July 8,  1991,  still  empty-handed, the  defendant

          moved to compel  discovery.  The plaintiff did not respond to the

          motion but, at a status conference held  on July 16, 1991, before

          a  magistrate-judge,  the plaintiff  offered  to  make amends  by

          August  1, 1991.  Again, the plaintiff's promise was honored only

          in  the breach.  When  defendant filed another  motion to compel,

          the magistrate granted it,  ordering the plaintiff to comply with

          the pending  discovery initiatives within five  days (from August

          22, 1991)   "or face  the strong possibility of  dismissal."  The

          plaintiff's ensuing motion for an extension of time was denied.  

                    The plaintiff continued to stonewall.  The magistrate's

          five-day deadline was ignored.   Accordingly, the defendant moved

          to  dismiss the action for plaintiff's failure to comply with the

          discovery order.  At  long last, the plaintiff served  answers to

          interrogatories.    Shortly  thereafter,   on  October  3,  1991,

          plaintiff's counsel  failed to  appear at a  previously scheduled

          pretrial  conference.   The  defendant  filed  another motion  to

          dismiss, citing plaintiff's disregard  of the discovery order and


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          its boycotting of the scheduled status conference.  The plaintiff

          opposed   dismissal,   attributing  noncompliance   to  counsel's

          personal problems, a scheduling mix-up, and the like.  

                    On February  5, 1992, the district  judge dismissed the

          action.   In  his order,  the judge  pointedly noted  plaintiff's

          "unexcusable delays" in furnishing discovery, specifically  found

          that plaintiff was guilty  of a "manifest pattern of  delay," and

          concluded  that plaintiff  had shown    "total disregard"  of the

          applicable rules and timetables.   Following denial of its motion

          for reconsideration, plaintiff appealed.

                    We need not  tarry.  The district  court's findings are

          entirely supportable.  This  was no mere isolated slip.   Rather,

          the  record here  is replete with evidence of broken promises and

          other  conduct   betokening  a  cavalier  disregard  for  orderly

          procedure.  The  plaintiff was  not only late    but  egregiously

          late.  Its  recalcitrance persisted  in the face  of the  court's

          specific  warning  that   further  delay   might  well   engender

          dismissal.  The court's  timetable  for discovery  and trial  was

          knocked  into  a  cocked hat.      On  this infelicitous  record,

          dismissal was among the sanctions that the district court, in its

          discretion, was entitled to employ.1  See National  Hockey League
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          v.  Metropolitan Hockey Club, Inc.,  427 U.S. 639, 642-43 (1976);
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               1Plaintiff contends that  affirming the judgment below  will
          result  in  punishing  an  innocent  client  for  its  attorney's
          shortcomings.  To some extent,  that is true.  We have,  however,
          regularly held that sort of argument to be overridden by the very
          nature  of the adversary system.  See, e.g., Damiani, 704 F.2d at
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          16; Corchado, 665 F.2d at 413; see also Link, 370 U.S. at 633-34.
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          Link  v. Wabash  R.R., 370  U.S. 626,  633-35 (1962);  Spiller v.
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          U.S.V.  Labs.,  Inc., 842  F.2d 535,  537  (1st Cir.  1988); Farm
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          Constr. Servs., Inc. v. Fudge,  831 F.2d 18, 20 (1st Cir.  1987);
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          Damiani  v. Rhode Island Hospital,  704 F.2d 12,  15-16 (1st Cir.
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          1983); Corchado v. Puerto Rico Marine Management,  Inc., 665 F.2d
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          410, 413 (1st Cir. 1981), cert. denied, 459 U.S. 826 (1982).
                                    _____ ______

                    As  this appeal  presents no  substantial  question, we

          need go no further. See 1st Cir. R. 27.1.
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          Affirmed.
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