Benjamin v. Aroostook Medical Center, Inc. , 57 F.3d 101 ( 1995 )

57 F.3d 101

66 Empl. Prac. Dec. P 43,616, 32 Fed.R.Serv.3d 514

James BENJAMIN, Jr., M.D., Plaintiff, Appellant,
v.
The AROOSTOOK MEDICAL CENTER, INC., et al., Defendants, Appellees.

No. 94-2024.

United States Court of Appeals,
First Circuit.

Heard Feb. 9, 1995.
Decided June 19, 1995.

James P. Chandler with whom Chandler & Robertson were on brief, for appellant.

Christopher D. Nyhan with whom Elizabeth J. Wyman and Preti, Flaherty, Beliveau & Pachios were on brief, for appellees.

Before SELYA, Circuit Judge, BOWNES, Senior Circuit Judge, and STAHL, Circuit Judge.

STAHL, Circuit Judge.

1

This appeal arises from an action brought by Dr. James Benjamin, Jr., and several of his patients against the Aroostook Medical Center ("TAMC"), alleging the racially-motivated termination of Benjamin's staff privileges.1 The district court dismissed the patients' claims, holding that they lacked standing to challenge TAMC's actions. Subsequently, the court dismissed Benjamin's claims with prejudice, explaining that Benjamin's counsel had failed to make himself available for proceedings and to respond to notices from the court. We affirm the dismissal of the patients' claims and modify the district court's order dismissing Benjamin's claims so that it operates without prejudice.

I.

Background

2

On February 12, 1992, Benjamin, a physician of African-American descent, submitted a completed application for staff privileges to TAMC. TAMC did not approve Benjamin's application, but instead, on October 12, 1992, granted him a "provisional appointment." Benjamin had licenses to practice medicine in California, Connecticut, Minnesota and Maine, and had received a certification in the "Specialty of Internal Medicine" from the American Board of Internal Medicine. TAMC, which is located in Presque Isle, Maine, has approximately forty-five physicians on its medical staff and it does not allow physicians without staff privileges to treat patients at its facilities. At the time of Benjamin's appointment, TAMC had no African-American physician on its staff.

3

On October 11, 1993, TAMC's Medical Staff Executive Committee recommended that TAMC terminate Benjamin's provisional staff privileges. Subsequently, on January 7, 1994, Benjamin and seventeen of his patients commenced this action pro se in federal district court alleging that TAMC, through discriminatory policies and practices, had denied Benjamin staff privileges on account of his race. On February 11, 1994, the district court issued a scheduling order setting forth discovery deadlines and an expected trial date for August 1994. The district court amended the scheduling order twice to extend the time, first for Benjamin and then for TAMC, to designate expert witnesses. On March 4, 1994, TAMC filed a motion to dismiss the patients' claims for lack of standing. After Benjamin and the patients responded through newly obtained counsel, the district court granted the motion, finding that the patients had not sufficiently alleged that they had suffered any "injury-in-fact" as a result of the hospital's actions.

4

On April 29, 1994, Benjamin's counsel sought to withdraw, citing irreconcilable differences with Benjamin. The district court granted the motion, pending an appearance by replacement counsel (or by Benjamin pro se ). On May 31, 1994, Benjamin's counsel renewed the motion to withdraw, and the district court ordered Benjamin to show cause why he had not obtained new counsel. On June 8, 1994, TAMC filed a motion to dismiss, arguing that Benjamin had failed to make himself available for a deposition and had obstructed TAMC's efforts to complete discovery. Two days later, TAMC filed a second motion to dismiss and/or for summary judgment, arguing that Benjamin's claims failed on the merits. On June 16, 1994, James P. Chandler of Washington, D.C., entered a notice of appearance on behalf of Benjamin and simultaneously moved to enlarge the time to respond to TAMC's pending motions to dismiss. The district court granted this motion, giving Benjamin and his new counsel until July 15, 1994, to respond.

5

On July 7, 1994, Chandler became seriously ill and was hospitalized in Washington, D.C. At the time of his hospitalization, Chandler had not responded to TAMC's motion nor consulted with Benjamin's former counsel. On July 15, 1994, a law clerk for Chandler moved for an additional enlargement of time on account of Chandler's sudden illness. The district court denied the motion in light of TAMC's objection and because it was improperly filed by an individual without authority to practice before the court. On August 2, 1994, Chandler filed another motion for enlargement of time, which the district court denied by endorsement.

6

On August 17, 1994, the district court held a hearing on TAMC's pending motions to dismiss at which neither Chandler nor Benjamin appeared. Noting that, since Chandler's appearance on Benjamin's behalf, Chandler had neither made himself available for any proceedings nor responded to notices from the court, the district court granted TAMC's motion to dismiss with prejudice. This appeal followed.II.

Discussion

7

We address two issues on appeal. First, Benjamin's patients contest the district court's finding that they lack standing to assert their claims against TAMC. Second, Benjamin argues that his counsel's sudden and severe illness should excuse his failure to make himself available and respond to notices from the court.

A. The Patients' Claims

8

At oral argument, counsel for the patients and Benjamin asserted that the patients' standing argument rested primarily on 42 U.S.C. Sec. 1981.2 The patients contend that they have standing because TAMC's actions interfered with their Sec. 1981-protected right to contract with Benjamin, a minority physician. TAMC, however, maintains that the patients themselves have no legally cognizable injury and, at best, only assert the third-party rights of Benjamin. After careful review, we conclude that, on the facts alleged in this case, the patients do not have standing.

9

The burden of alleging facts necessary to establish standing falls upon the party seeking to invoke the jurisdiction of the federal court. Warth v. Seldin, 422 U.S. 490, 518, 95 S.Ct. 2197, 2215, 45 L.Ed.2d 343 (1975); United States v. AVX Corp., 962 F.2d 108, 114 (1st Cir.1992). We review de novo a district court's standing determination, employing an approach that, in practice, differs little from that used to review motions to dismiss under Fed.R.Civ.P. 12(b)(6). AVX Corp., 962 F.2d at 114. In conducting our review, we are obliged to "accept as true all material allegations of the complaint, and ... construe the complaint in favor of the complaining party." Warth, 422 U.S. at 501, 95 S.Ct. at 2206-07; see also Adams v. Watson 10 F.3d 915, 919 (1st Cir.1993).

10

"Standing is the determination of whether a specific person is the proper party to bring a particular matter to the Court for adjudication." Erwin Chemerinsky, Federal Jurisdiction Sec. 2.3, at 48 (1989). The "inquiry involves both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise." Warth, 422 U.S. at 498, 95 S.Ct. at 2204-05; see also Vote Choice, Inc. v. DiStefano, 4 F.3d 26, 36 (1st Cir.1993). The constitutional limitations derive from the language of Article III that provides, inter alia, that federal courts shall resolve disputes involving only "Cases" or "Controversies." AVX Corp., 962 F.2d at 113. The Supreme Court has interpreted this general constitutional proscription as setting forth three fundamental requisites of standing that every litigant invoking the jurisdiction of the federal courts must possess: (1) injury-in-fact--an invasion of a legally-protected interest that is both concrete and particularized, and actual or imminent; (2) causation; and (3) redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136-37, 119 L.Ed.2d 351 (1992); Libertad v. Welch, 53 F.3d 428, 436 (1st Cir.1995).

11

Several prudential considerations also infuse standing determinations. These considerations, which militate against standing, principally concern whether the litigant (1) asserts the rights and interests of a third party and not his or her own, (2) presents a claim arguably falling outside the zone of interests protected by the specific law invoked, or (3) advances abstract questions of wide public significance essentially amounting to generalized grievances more appropriately addressed to the representative branches. Libertad, 53 F.3d at 436. Consideration of these prudential factors enables the federal judiciary "to avoid deciding questions of broad social import where no individual rights would be vindicated and to limit access to the federal courts to those litigants best suited to assert a particular claim." Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99-100, 99 S.Ct. 1601, 1607-08, 60 L.Ed.2d 66 (1979) (emphasis added); see also Conservation Law Found. of New England v. Reilly, 950 F.2d 38, 41 (1st Cir.1991).

12

For purposes of this appeal, we need not resolve whether the patients have met the constitutional requisites of standing, rather we believe that, because the patients' allegedly infringed-upon rights fall outside what we have previously found to be protected by Sec. 1981, the patients essentially assert the third-party rights of Benjamin rather than their own. Furthermore, because the patients have not satisfied the minimum requirements for an exception to the prudential rule against third-party standing, and because the reasons underlying the rule obtain in this case, we believe the district court did not err in dismissing their claims.

13

Whether a party is asserting its own rights, as opposed to seeking to vindicate the rights of a third party, is often a difficult question. See generally, Henry P. Monaghan, Third Party Standing, 84 Colum.L.Rev. 277 (1984). Though the patients claim a direct infringement of their right to contract with a minority physician, at its essence, we believe their claim is more accurately described as an assertion of Benjamin's third-party right to a race-neutral review process.

14

Primarily, the patients' allegedly infringed-upon rights fall outside what we, and other courts, have previously found to be protected by 42 U.S.C. Sec. 1981.3 Most cases brought pursuant to Sec. 1981 involve allegations of discriminatory conduct prompted by hostility towards the plaintiff's race. See Dartmouth Review v. Dartmouth College, 889 F.2d 13, 17 (1st Cir.1989). Occasionally, however, courts have allowed cases to proceed where a plaintiff challenges a discriminatory action motivated by animosity towards another person's race. See, e.g., Des Vergnes v. Seekonk Water Dist., 601 F.2d 9, 13-14 (1st Cir.1979); Winston v. Lear-Siegler, Inc., 558 F.2d 1266, 1268-70 (6th Cir.1977); DeMatteis v. Eastman Kodak Co., 511 F.2d 306, 311-12 (2d Cir.), modified on other grounds, 520 F.2d 409 (2nd Cir.1975). Such cases have generally been limited to situations in which the plaintiff was the direct target of the defendant's discriminatory action. In Des Vergnes, for example, a water district acted directly against the nonminority developer by refusing the developer's request to include a tract of land proposed for low-income minority housing in the water district. Des Vergnes, 601 F.2d at 11-12. Consequently, we held that the non-minority developer had standing under Sec. 1981 even though the water district's alleged discriminatory action was motivated by animosity towards the race of the prospective tenants and not the race of the developer. Id. at 14. Other cases most typically involve a discriminatory employment action (e.g., firing) taken by an employer directly against a non-minority employee because of that employee's association with, or advocacy of, minorities. See, e.g., Alizadeh v. Safeway Stores, Inc., 802 F.2d 111, 114 (5th Cir.1986) (white plaintiff fired because married to minority spouse); Winston, 558 F.2d at 1270 (white employee fired for advocating rights of minority); cf. Phelps v. Wichita Eagle-Beacon, 886 F.2d 1262, 1266-67 (10th Cir.1989) (white lawyer had standing under Sec. 1981 to sue newspaper that published allegedly false articles about him because he represented minorities).

15

Here, the patients challenge an action by TAMC neither motivated by animosity towards the patients' race nor specifically targeted at, or taken directly against, the patients. The patients' alleged injury arises only as a derivative effect of TAMC's administration of its general policies governing the grant and review of physician staff privileges. Cf. Department of Labor v. Triplett, 494 U.S. 715, 720, 110 S.Ct. 1428, 1431-32, 108 L.Ed.2d 701 (1990) (standing may exist where "enforcement of a restriction against a litigant prevents a third party from entering into a relationship with the litigant (typically a contractual relationship), to which the third party has a legal entitlement") (emphasis added); see generally Monaghan, 84 Colum.L.Rev. at 306-11 (discussing the distinction between direct and indirect interference with right to interact as a limit on standing). The direct injury in this case is TAMC's alleged discriminatory revocation of Benjamin's staff privileges, which TAMC directed specifically at Benjamin on account of Benjamin's race.

16

Furthermore, the patients do not allege that TAMC's action completely precluded them from receiving treatment. TAMC has other physicians on staff who practice in Benjamin's specialty, and the patients do not allege that TAMC has refused to admit them as patients. Finally, neither does the fact that Benjamin cannot treat the patients at TAMC completely disrupt the patients' relationship with Benjamin: TAMC's revocation of Benjamin's staff privileges does not preclude him from treating the patients outside of TAMC facilities. Accordingly, because the patients' injury occurs, if at all, only as a derivative effect of TAMC's action against Benjamin, we hold that, in attempting to bring their claims under Sec. 1981, they are asserting Benjamin's third-party rights, and not their own. See Mackey v. Nationwide Ins. Co., 724 F.2d 419, 421-22 (4th Cir.1984) (insurance agent challenging insurer's redlining policy is asserting third-party rights of homeowners); Capital Nat'l Bank of N.Y. v. McDonald's Corp., 625 F.Supp. 874, 882 (S.D.N.Y.1986) (non-minority lender to minority franchisee asserts only third-party rights of minority franchisee in challenge to franchisor's alleged discriminatory termination of franchisee's contract).

17

While the general proscription on third-party standing is not absolute, Powers v. Ohio, 499 U.S. 400, 410, 111 S.Ct. 1364, 1370, 113 L.Ed.2d 411 (1991); Warth, 422 U.S. at 500-01, 95 S.Ct. at 2205-07, no exception to the ban is applicable in this case. In Powers, the Supreme Court stated that an individual seeking to assert the rights of a third party must, as a prerequisite, satisfy three specific criteria: "The litigant must have suffered an 'injury in fact,' ...; the litigant must have a close relationship to the third party; and there must exist some hindrance to the third party's ability to protect his or her own interests." Powers, 499 U.S. at 411, 111 S.Ct. at 1370-71 (citations omitted) (emphasis added); see also Playboy Enters. v. Public Serv. Comm'n of P.R., 906 F.2d 25, 37-39 (1st Cir.), cert. denied, 498 U.S. 959, 111 S.Ct. 388, 112 L.Ed.2d 399 (1990).

18

Assuming arguendo that the patients could satisfy the first two criteria, they clearly fail to establish the third. No hindrance exists in this case that prevents the third party, Benjamin, from asserting his own rights. In order to satisfy this criterion, a party must show that some barrier or practical obstacle (e.g., third party is unidentifiable, lacks sufficient interest, or will suffer some sanction) prevents or deters the third party from asserting his or her own interest. See, e.g., Powers, 499 U.S. at 414-15, 111 S.Ct. at 1372-73 (lack of economic incentive); Clifton Terrace Assocs. v. United Technologies Corp., 929 F.2d 714, 721 (D.C.Cir.1991) (no barriers because, inter alia, third parties are plainly identifiable); Playboy Enters., 906 F.2d at 37-38 (threat of official sanction) Here, the injured party is clearly identified and has sufficient interest in the litigation (e.g., professional reputation) to pursue (and, in fact, has pursued) the action. Accordingly, the patients have not met the minimum requisites for third-party standing.

19

Furthermore, our holding, that Benjamin, and not the patients, is the proper party to bring an action against TAMC, is consistent with the policies underlying the prudential rule against third-party standing. See Singleton v. Wulff, 428 U.S. 106, 114, 96 S.Ct. 2868, 2874, 49 L.Ed.2d 826 (1976) (general proscription on third-party standing may be avoided where the "underlying justifications are absent"). Indeed, one of the principal justifications for the rule is that it assures that the party bringing the litigation will be the "most effective advocate of the rights at issue." Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 80, 98 S.Ct. 2620, 2634, 57 L.Ed.2d 595 (1978); see also Secretary of State v. Joseph H. Munson Co., 467 U.S. 947, 955, 104 S.Ct. 2839, 2846, 81 L.Ed.2d 786 (1984) (rule against third-party standing guarantees that issues essential to litigation will be "concrete and sharply presented"). Here, because the merits of the action turn largely on an evaluation of Benjamin's performance at TAMC, he, and not the patients, is clearly the best party to assert the claim. Not only would Benjamin be best able to contest TAMC's assertion of professional incompetence, but, in addition, he would likely be far more able to point to specific instances of conduct attributable to TAMC that suggest a discriminatory motive. Indeed, it is far from clear that the patients, who would not be privy to all the particulars of Benjamin's relationship with the hospital, could effectively proceed without Benjamin's participation.

20

To summarize, because the patients' claims fall outside what we, and other courts, have previously found to be protected by Sec. 1981, we believe the patients assert the third-party rights of Benjamin and not their own. Furthermore, because the patients have not met the minimum requisites for third-party standing, we hold that the district court did not err in dismissing their claims.

B. Benjamin's Claims

21

Benjamin contends that the district court erred in granting TAMC's motion to dismiss with prejudice. Benjamin maintains that the district court granted the motion essentially because his counsel failed to prosecute the action by not responding to TAMC's motion to dismiss or appearing at the August 17 hearing. Benjamin argues, however, that these failures are excusable in light of his attorney's sudden and serious illness.

22

We treat the district court's dismissal as issued pursuant to Rule 41(b).4 We review dismissals under Rule 41(b) for abuse of discretion. Capo v. United States, 7 F.3d 283, 284 (1st Cir.1993); Enlace Mercantil Internacional, Inc. v. Senior Indus., Inc., 848 F.2d 315, 317 (1st Cir.1988). Claims of abuse of discretion under Rule 41(b) typically have "not received a sympathetic ear from us." Damiani v. Rhode Island Hosp., 704 F.2d 12, 17 (1st Cir.1983) (collecting cases). At the same time, this "does not mean we have rubber-stamped the decisions of the district court." Id. Dismissal with prejudice "is a harsh sanction," Richman v. General Motors Corp., 437 F.2d 196, 199 (1st Cir.1971), which runs counter to our "strong policy favoring the disposition of cases on the merits." Zavala Santiago v. Gonzalez Rivera, 553 F.2d 710, 712 (1st Cir.1977). As a result, we have indicated that such an option should be employed only when a plaintiff's misconduct is particularly egregious or extreme. See, e.g., Estate of Solis-Rivera v. United States, 993 F.2d 1, 2 (1st Cir.1993); see also Cosme Nieves v. Deshler, 826 F.2d 1, 2 (1st Cir.1987) ("[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"). In reviewing the trial court's actions, we engage in an "open-ended balancing test," giving appropriate consideration to all relevant factors. Figueroa Ruiz v. Alegria, 896 F.2d 645, 648 (1st Cir.1990); see also HMG Property Investors, Inc. v. Parque Indus. Rio Canas, Inc., 847 F.2d 908, 917 n. 13 (1st Cir.1988).

23

If the district court's order ensued solely because Attorney Chandler's sudden illness prevented him from responding to TAMC's motion to dismiss, Benjamin's argument would have significantly more bite. Indeed, we have suggested that, in deciding a motion for an extension of time, a district court's failure to allow for factors beyond a party's control, such as the unexpected illness of counsel, may, in a certain case, constitute an abuse of discretion. See Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 584 (1st Cir.1994) (finding no abuse of discretion in denial of motion for enlargement of time where, inter alia, party does not advert to "circumstances beyond a party's control, such as an attorney's illness"); cf. Smith-Weik Mach. Corp. v. Murdock Mach. & Eng'g Co., 423 F.2d 842, 844 (5th Cir.1970). In this case, however, other factors obtain, most importantly Chandler's failure to appear at the August 17 hearing or to notify the court and opposing counsel in advance of his expected absence. See Simpson v. Welch, 900 F.2d 33, 34-35 (4th Cir.1990) (no abuse of discretion to dismiss pursuant to Rule 41(b) where counsel did not respond to summary judgment motion or appear at hearing on motion). Moreover, Chandler's failure to appear occurred after the court had already extended the time to respond to TAMC's motion to dismiss upon Chandler's late appearance in the case. Cf. 9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure Sec. 2352, at 402 (2d ed. 1995) (prior delays relevant in evaluating denial of continuance).

24

On the other hand, though Chandler's failure to notify the district court and opposing counsel that he would not be present at the August 17 hearing cannot be overlooked, we believe that, when viewed in context, the egregiousness of his conduct becomes somewhat mitigated. TAMC does not dispute that Chandler, who lives in Washington, D.C., was seriously ill. Indeed, Chandler had apprised the district court and opposing counsel of the severity of his illness through two motions for enlargement of time filed on July 15 and August 2. The August 2 motion expressly states that "The prognosis of [Chandler's] primary care physician is that [Chandler] will not be able to resume his court duties until after mid-August." Thus, we think that Chandler provided the court and TAMC at least some notice that he might not be able to attend the August 17 hearing. Moreover, the district court scheduled the date of the August 17 hearing only after Chandler filed the second motion for enlargement of time. Finally, the litigation, at the time of the court's dismissal, was less than one year old.

25

We sympathize with the district court's frustration in the face of counsel's failure to appear, and we fully appreciate the district court's need to control its docket. Furthermore, we "wholeheartedly endorse the use of stiff sanctions, including dismissal [with prejudice], where appropriate." Velazquez-Rivera v. Sea-Land Serv., Inc., 920 F.2d 1072, 1079 (1st Cir.1990). While we agree that Chandler's failure to appear or to notify the court warrants punishment, we believe that, in this case, the district court's use of the ultimate sanction of dismissal with prejudice was a step too far. Hence, we modify the order of the district court to a dismissal without prejudice. See 9 Wright & Miller, Federal Practice and Procedure Sec. 2373, at 402 ("The decision of the trial court to dismiss with prejudice may be reviewed on appeal and the appellate court may order the dismissal to be without prejudice.").

III.

Conclusion

26

For the foregoing reasons, we affirm the dismissal of the patients' claims and modify the district court's order dismissing Benjamin's claims to operate without prejudice.

1

In addition to TAMC, the complaint designates several named and unnamed TAMC officers, agents, employees and staff physicians as defendants. For purposes of this opinion, we will refer to all defendants collectively as "TAMC."

2

42 U.S.C. Sec. 1981 provides in relevant part:

(a) Statement of equal rights

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens....

(b) "Make and enforce contracts" defined

For purposes of this section, the term "make and enforce contracts" includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms and conditions of the contractual relationship.

3

Although standing in no way depends on the merits of the plaintiff's contention that particular conduct is illegal, e.g., Flast v. Cohen, 392 U.S. 83, 90 [88 S.Ct. 1942, 1947, 20 L.Ed.2d 947] (1968), it often turns on the nature and source of the claim asserted.... [T]he source of the plaintiff's claim to relief assumes critical importance with respect to the prudential rules of standing that, apart from Art. III's minimum requirements, serve to limit the role of the courts in resolving public disputes. Essentially, the standing question in such cases, is whether the constitutional or statutory provision on which the claim rests properly can be understood as granting a person in the plaintiff's position a right to judicial relief

Warth, 422 U.S. at 500, 95 S.Ct. at 2206.

4

Fed.R.Civ.P. 41(b) provides in relevant part:

For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.

TAMC contends that the district court dismissed Benjamin's claims pursuant to Local Rule 19(c) and not Rule 41(b). Local Rule 19(c) provides that the failure to file a timely written response to a pending motion will waive any objections to that motion. U.S.Dist.Ct.Me.Gen.R. 19(c).

Our reading of the district court's order, however, convinces us that it was acting pursuant to Rule 41(b). The district court did not cite Local Rule 19(c) in ordering the dismissal of the case. Neither did the district court state that the dismissal was compelled because Benjamin's failure to respond constituted a waiver of any objection to the motion. Instead, the district court reasoned, "Because the plaintiff, through counsel, has failed to make himself available for any proceedings since the appearance of Mr. Chandler and since the plaintiff, through counsel, has not responded to notices from the Court, defendant's Motion to Dismiss plaintiff's actions is hereby GRANTED with prejudice." We think this rather terse statement makes apparent that the court's motivation stemmed more from its displeasure at Benjamin and Chandler's failure either to appear at the hearing or to notify the court (and opposing counsel) of their expected absence, than just Benjamin and Chandler's (arguably) excusable failure to respond to TAMC's motion to dismiss.