Strahan v. New England Aquarium , 25 F. App'x 7 ( 2002 )

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 00-2361
RICHARD MAX STRAHAN,
Plaintiff, Appellant,
v.
NEW ENGLAND AQUARIUM, ET AL.,
Defendants, Appellees.
____________________
No. 00-2363
RICHARD MAX STRAHAN,
Plaintiff, Appellant,
v.
ROBERT HURST, ET AL.,
Defendants, Appellees.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya and Lipez, Circuit Judges.
Richard Max Strahan on brief pro se.
Edward T. Patten on brief for appellee Dolphin Fleet of
Provincetown, Inc.
Ansel B. Chaplin and Chaplin & Chaplin on brief for appellee
Center for Coastal Studies.
Joseph F. Shea and Nutter, McClennen & Fish on brief for
appellee New England Aquarium.
John C. Cruden, Acting Assistant Attorney General, Samuel
D. Rauch and Mark R. Haag, Attorneys, Department of Justice, and
Francis H. Esposito, Office of the Chief Counsel, United States
Coast Guard, on brief for Federal appellees.
January 15, 2002
Per Curiam. In these consolidated pro se appeals,
Richard Max Strahan challenges the summary dismissal of
separate lawsuits alleging violation of § 9 of the Endangered
Species Act ("ESA"), 16 U.S.C. § 1538(a). The lawsuits were
brought on behalf of listed species of whales, and in one
case, also on behalf of listed species of sea turtles. For
the following reasons, we affirm.
Strahan v. New England Aquarium challenges the
practices of whale watch vessels operated by the New England
Aquarium and the Dolphin Fleet of Provincetown, Inc. Strahan
v. Hurst challenges United States Coast Guard operations.
In both cases, defendants filed motions for summary judgment
and Strahan sought extensions of time for responding.
Roughly three months after the last extension expired, and
in the absence of any further filings by Strahan (must less
any document supporting an opposition to defendants'
motions), the district court dismissed the two suits for lack
of prosecution under Fed. R. Civ. P. 41(b) and on the
alternative ground that the motions for summary judgment were
well-founded.
A summary judgment motion cannot be granted based
on an adverse party's failure to respond. See Carmona v.
Toledo, 215 F.3d 134 n.9 (1st Cir. 2000); Fed. R. Civ. P.
56(e) (if adverse party fails to respond, "summary judgment,
if appropriate, shall be entered") (emphasis added).
However, there is some authority that, notwithstanding this
rule, a case can be dismissed at the summary judgment stage
under Rule 41(b) if the court determines that the plaintiff's
failure to respond constitutes a failure to prosecute. See,
e.g., Custer v. Pan American Life Ins. Co., 12 F.3d 410, 415
(4th Cir. 1993); Lediju v. New York City Dep't of Sanitation,
173 F.R.D. 105, 110 (S.D.N.Y. 1997).
In the instant case, Strahan's failure to meet the
extended deadlines for filing oppositions fell against a
recent background of missed deadlines and delay on his part.
Contrary to his suggestion, a warning is not an absolute
requirement before dismissal. See Robson v. Hallenbeck, 81
F.3d 1, 3-4 (1st Cir. 1996). Strahan had the opportunity to
explain his defaults by way of a motion to reinstate. He
filed such a motion but did not proffer any valid excuses.
Arguably, Strahan's conduct rose to the level of a
failure to prosecute under Rule 41(b). However, we need not
decide whether the dismissals can be upheld on this basis
alone. The district court did not purport to dismiss the two
cases solely on this ground but rather made an independent
-4-
determination that summary judgment was warranted. Upon
review of the record, we, too, are persuaded that the
dismissals were otherwise justified.
Summary judgment was warranted in New England
Aquarium based on Strahan's failure to comply with Loc. R.
56.1, which justified the court in deeming admitted the facts
presented in the movants' statements of undisputed facts.
See Ruiz Rivera v. Riley, 209 F.3d 24, 28 (1st Cir. 2000).
Strahan suggests on appeal, without record citation, that the
record contains "several scientific studies" sufficient to
create a material issue of fact. However, the presence of
Loc. R. 56.1, requiring Strahan to file a response to guide
the court, removed any requirement that otherwise might exist
that the district court ferret through the record before
ruling on defendants' summary judgment motions. See Jaroma
v. Massey, 873 F.2d 17, 21 (1st Cir. 1989). In any event,
Strahan fails to specifically identify any of these studies
or explain how they enhance his claims.1
The dismissal in Hurst was warranted based on
Strahan's failure to comply with the sixty-day notice
1 We also reject Strahan's suggestion that summary judgment
was improper because he was provided inadequate opportunity for
discovery. Strahan does not articulate what discovery he sought
or needed, and, thus, provides no basis to question the district
court's handling of discovery.
-5-
requirement before filing suit. See 16 U.S.C. §
1540(g)(2)(A)(i) (providing that a citizen may not bring suit
under the ESA prior to sixty days after written notice of an
alleged violation has been given to the Secretary and the
alleged violator). Strahan sent his notice of intent to sue
on March 19, 1998, and the complaint was filed only twenty-
eight days later. This court has interpreted the sixty-day
notice requirement in environmental statute citizen suits
strictly. See Water Keeper Alliance v. United States Dep't
of Defense, 271 F.3d 21, 29 (1st Cir. 2001).2
Affirmed.
2We recognize that the notice mailed in Hurst purported to
be a "continuation" of notices sent between 1989 and 1992.
However, in the interim, Strahan litigated Strahan v. Linnon,
94cv11128, involving a substantially identical "takings" claim.
In 1997, Linnon was resolved in the Coast Guard's favor. See
Strahan v. Linnon, 967 F. Supp. 581 (D. Mass. 1997). Hurst is
based, in part, on events that post-date Linnon. However, to
the extent that the second suit could go forward and is not
precluded by the first, new notice and a full sixty-day period
was required.
-6-