Garcia-Perez v. Hospital Metropolitano ( 2010 )


Menu:
  •           United States Court of Appeals
    For the First Circuit
    No. 09-1721
    MONSERRATE GARCÍA-PÉREZ, ET AL.,
    Plaintiffs, Appellants,
    v.
    HOSPITAL METROPOLITANO, ET AL.,
    Defendants, Appellees.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF PUERTO RICO
    [Hon. Juan M. Pérez-Giménez, U.S. District Judge]
    Before
    Lynch, Chief Judge,
    Lipez and Howard, Circuit Judges.
    Humberto R. Vázquez-Sandoval on brief for appellants.
    Gloria M. De Corral and De Corral & De Mier on brief for
    appellee, Hospital Metropolitano.
    Juan M. Masini-Soler on brief for appellees, Rafael Ramírez-
    Pepen, Conjugal Partnership Ramírez-Doe.
    February 24, 2010
    Per Curiam.    On the scheduled trial date, which had been
    set only six days earlier, the district court, acting sua sponte,
    dismissed this case with prejudice "for lack of prosecution based
    on   the   plaintiffs'    non-compliance   with     discovery    deadlines,"
    particularly their failure to produce a medical expert report.
    Without condoning the plaintiffs' lengthy and unjustified delay in
    producing their expert's report, we reluctantly vacate the dismissal
    because, in short, the absence of a clearly communicated deadline
    for providing expert reports or notice that failing to do so more
    promptly could result in dismissal rendered that drastic sanction
    an abuse of discretion.      We explain.
    We   review   dismissals   under    Rule   41(b)   for   abuse   of
    discretion.      Malot v. Dorado Beach Cottage Assocs., 
    478 F.3d 40
    , 43
    (1st Cir. 2007).      Although "[c]laims that a court has abused its
    discretion in dismissing a case for failure to adhere to discovery
    orders or for failure to prosecute have 'not received a sympathetic
    ear,'" 
    id.
     (quoting Damiani v. R.I. Hosp., 
    704 F.2d 12
    , 17 (1st Cir.
    1983)), we "must fairly balance the court's venerable authority over
    case management with the larger concerns of justice, including the
    strong presumption in favor of deciding cases on the merits," 
    id.,
    and "procedural aspects such as notice," Benitez-Garcia v. Gonzalez-
    Vega, 
    468 F.3d 1
    , 5 (1st Cir. 2006).           This is the rare case where
    the latter concerns outweigh the former.
    -2-
    The    plaintiffs'   three-year   delay   in   producing   their
    expert's report was sufficiently "extreme" to warrant the harsh
    sanction of dismissal,1 see Malot, 
    478 F.3d at 44
     (describing this
    court's tendency "to reserve dismissal with prejudice for delays
    measured in years"); and they offered no legitimate excuse for that
    lengthy delay,2 see Benitez-Garcia, 468 F.3d at 5.         Nevertheless,
    other relevant factors weigh heavily against imposing that drastic
    sanction here.
    First of all, without condoning the lethargic pace that
    this litigation took, the responsibility for that pace was shared,
    in large part, by the district court,3 which failed to exercise its
    1
    Although the district court also premised its dismissal
    order, more generally, on the plaintiffs' "non-compliance with
    discovery orders," it identified no such orders and none are
    pointed out by the appellees or apparent in the record. Cf. Ortiz-
    Lopez v. Sociedad Espanola De Auxilio Mutuo y Beneficiencia, 
    248 F.3d 29
    , 36 (1st Cir. 2001) (affirming dismissal with prejudice
    where district court made "explicit and lengthy findings of
    egregious discovery abuses"). The plaintiffs did delay in filing
    their second amended complaint, but their failure to do so more
    promptly was related to their delay in obtaining expert advice, not
    to any other discovery violations.
    2
    Other than the absence of a deadline, the plaintiffs' only
    excuse was that their original expert took longer than expected to
    produce his report and they were therefore forced to retain a new
    one. But the plaintiffs apparently gave their original expert no
    deadline for producing his report and were not aggressive in
    seeking it more promptly.    And even after they retained a new
    expert, another year went by without production of an expert
    report.
    3
    As in Ortiz-Anglada v. Ortiz-Perez, 
    183 F.3d 65
    , 67 n.4 (1st
    Cir. 1999), and Malot, 
    478 F.3d at 45
    , the defendants here also
    share this responsibility. One of the defendants failed to answer
    the first amended complaint until more than two months after the
    already extended deadline without seeking a further extension;
    -3-
    "abiding responsibility" under federal and local rules to "take an
    active role in case management," Tower Ventures, Inc. v. City of
    Westfield, 
    296 F.3d 43
    , 46 (1st Cir. 2002), by "issu[ing] orders 'as
    soon   as   practicable'   fixing    deadlines   for    the    completion   of
    discovery" and other pretrial events.         Torres v. Puerto Rico, 
    485 F.3d 5
    , 10 (1st Cir. 2007) (quoting Fed. R. Civ. P. 16(b)); see also
    Ortiz-Anglada,    
    183 F.3d at 66-67
       (vacating   a     dismissal   with
    prejudice where the district court failed to impose deadlines
    through a scheduling order).        Contrary to federal Rule 16(b), the
    district court never issued an initial scheduling order; and,
    contrary to the corresponding local rule, it never scheduled or held
    a pretrial conference and did not set a trial date until six days
    before trial.     Although the court did set a deadline for the
    plaintiffs' production of their expert's report, once that deadline
    expired without compliance, the court never set a new one even after
    the defendants eventually asked the court to do so.
    The court further contributed to delay by taking months
    to rule on the parties' motions, which, if promptly decided, would
    have moved the case along more expeditiously.               For example, the
    another defendant never answered the first amended complaint at
    all; and the principal defendant had not filed an answer to the
    second amended complaint, or sought more time to do so, by the time
    the case was dismissed in March 2009, five months after that
    complaint had been filed.    Nor did the defendants bring to the
    court's attention the plaintiffs' failure to produce their expert
    report by the original deadline of January 30, 2007, or ask the
    court to impose another deadline until November 26, 2008, almost
    two years later.
    -4-
    court never ruled on the plaintiffs' April 2007 request for more
    time to finalize their expert's report; took six months to rule on
    the defendants' motion for a more definite statement; took seven
    months to rule on the defendants' motion to dismiss; and never ruled
    on the defendants' November 2008 motion to set a deadline for the
    plaintiffs to produce their expert's report.
    The court's failure to set deadlines not only contributed
    to the case's slow pace but also rendered its ultimate dismissal
    order unfair in two respects.          First, there was no "clearly
    communicated" deadline for producing the plaintiffs' expert report.
    See Velázquez Linares v. United States, 
    546 F.3d 710
    , 711-12 (1st
    Cir. 2008) (acknowledging "'litigants' unflagging duty to comply
    with clearly communicated case-management orders'" (quoting Rosario-
    Díaz v. Gonzalez, 
    140 F.3d 312
    , 315 (1st Cir. 1998)) but vacating
    dismissal order based on "uncertainty" of the missed deadline). Once
    the original deadline passed and the court failed to set a new
    deadline at both sides' requests, the only operative deadline was
    the default deadline contained in Rule 26(a)(2)(C)(i), under which
    the plaintiffs' expert report was due "at least 90 days before the
    date set for trial or for the case to be ready for trial."       But
    since no trial date was set until six days before trial, it was
    impossible for the plaintiffs to comply with that 90-day deadline.
    Nor did the plaintiffs have any other way of knowing that trial was
    imminent.    Despite the relatively long time that had passed since
    -5-
    the filing of the original complaint, the principal defendant had
    not yet answered the second amended complaint.             Nor had pretrial
    memoranda been filed or a pretrial conference scheduled or held.
    Second, the plaintiffs were given no express notice of the
    consequences    of    failure   to   produce    their   expert   report      more
    promptly.   Although the court included boilerplate language in two
    orders   stating     that   "[f]ailure   to    comply   will   result   in    the
    imposition of severe sanctions and/or dismissal of the complaint
    with prejudice for lack of prosecution pursuant to Fed. R. Civ. P.
    41(b)," neither of those orders set a deadline for the production
    of the plaintiffs' expert report.4            Therefore, those warnings did
    not give the plaintiffs "realistic notice" that they faced the harsh
    sanction of dismissal with prejudice for failure to produce their
    expert report before February 17, 2009, the date when the dismissal
    order issued.        Malot, 
    478 F.3d at 45
     (so concluding in similar
    circumstances).       Although prior notice of the consequences is not
    always required, Pomales v. Celulares Telefónica, Inc., 
    342 F.3d 44
    ,
    50 n.5 (1st Cir. 2003), "in the absence of such a warning, the
    propriety of dismissal 'turns to a considerable extent, on the
    knowledge which the circumstances show such party may be taken to
    have of the consequences of his own conduct.'"             
    Id.
     (quoting Link
    v. Wabash R.R. Co., 
    370 U.S. 626
    , 632 (1962)).           As discussed above,
    4
    Rather, one of them set a deadline for complying with an
    order to show cause, which the plaintiffs did on time; and the
    other set a deadline for filing the second amended complaint, which
    the plaintiffs did, albeit one day after the extended deadline.
    -6-
    given the lack of notice of the imminence of trial, the plaintiffs
    cannot reasonably be deemed to have had notice that their delay in
    producing their expert's report would lead to dismissal.
    A further consideration weighing against the propriety of
    dismissal with prejudice is the absence of evidence--or even any
    contention--that the   defendants were prejudiced by the delay.
    Benitez-Garcia, 468 F.3d at 5.   Given that the principal defendant
    had not yet answered the second amended complaint and that no
    pretrial memoranda had been filed or pretrial conference conducted,
    it is doubtful that the defendants (or the court) were any more
    ready for trial than the plaintiffs or that, even if the plaintiffs
    had produced their expert report more promptly, the trial would have
    gone forward on the precipitously announced date.
    A final relevant factor is the absence of evidence that
    the district court considered the adequacy of lesser sanctions, id.
    at 6, such as continuing the trial to a date certain and imposing
    monetary sanctions to compensate the defendants for any harm caused
    by the continuance, Esposito v. Home Depot U.S.A., Inc., 
    590 F.3d 72
    , 80 (1st Cir. 2009), and then setting short deadlines for
    production of the expert's report and any other remaining pretrial
    events and strictly enforcing them, Velázquez Linares, 
    546 F.3d at 711-12
    .
    In   sum, although the district court was justifiably
    unhappy with the plaintiffs' lengthy and unjustified delay in
    -7-
    producing their expert's report, the court's failure to set a clear
    deadline for doing so, to warn the plaintiffs of the consequences
    of noncompliance with that deadline, to make findings concerning the
    nature   of   the   plaintiffs'   conduct   and   the   prejudice   to   the
    defendants, and to consider the adequacy of lesser sanctions renders
    the sanction of dismissal with prejudice an abuse of its broad
    discretion to manage its caseload.          Accordingly, we vacate the
    dismissal and remand for further proceedings. Each party shall bear
    its own costs.
    -8-