Giancola v. JohnsonDiversey

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 05-1673
ROBERT GIANCOLA,
Plaintiff, Appellant,
v.
JOHNSONDIVERSEY, a/k/a
JOHNSON WAX PROFESSIONAL, ET AL.,
Defendants, Appellees,
___________________
JOSE RIBEIRO, d/b/a RIBEIRO'S CLEANING SERVICE,
Third-Party Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Boudin, Chief Judge,
Campbell and Stahl, Senior Circuit Judges.
Kevin MacMurray on brief for appellant Robert Giancola.
Lee Stephen MacPhee, Philip M. Hirshberg and Morrison
Mahoney on brief for appellee JohnsonDiversey.
Barry M. Ryan and Doherty Wallace Pillsbury and Murphy on
brief for appellee Chemstar Corporation.
Kevin M. Carroll and Eric A. Nissen on brief for third-party
appellee Jose Ribeiro.
December 1, 2005
Per curiam. This is an appeal from the district
court's dismissal of this product liability case as a sanction
for plaintiff's repeated failure to show up at his scheduled
depositions and to produce relevant documents requested by the
defense, despite warnings and, ultimately, a court order
requiring him to do so. Essentially for the reasons stated by
the district court in its thorough and well-reasoned 19-page
decision, we affirm both the dismissal and the subsequent denial
of plaintiff's motion for reconsideration.
DISCUSSION
We previously reserved judgment on the threshold
question, flagged by the clerk's office in an order to show
cause, of whether plaintiff's appeal from the judgment was
timely. In the interests of judicial economy, we now by-pass
that potentially thorny issue to reach the relatively easy merits
of this appeal. See Rivera-Martinez v. Ashcroft, 389 F.3d 207,
209 (1st Cir. 2004), cert. denied, 125 S. Ct. 2963 (2005).
This court's review of discovery sanctions, including
the choice of sanctions, is highly deferential. See, e.g.,
Sheppard v. River Valley Fitness One, L.P., 428 f.3d 1, 6 (1st
Cir. 2005). Where, as here, the district court's thorough and
well-reasoned decision demonstrates that it applied the
appropriate factors and weighed them appropriately, no abuse of
discretion can be found. Id.-2-
On appeal, plaintiff does not contest the factual
findings made by the district court or its conclusion that
sanctions were appropriate. Rather, he focuses on the district
court's choice of dismissal as the appropriate sanction.
Specifically, he argues that dismissal was excessive because
plaintiff's "failure to comply [with his discovery obligations]
was a product of the degenerating relationship with his
attorney[,] [c]ompounded by the District Court's order
perpetuating this relationship despite the obvious breakdown."
That argument is unavailing for several reasons.
First, as a general matter, dismissal is an appropriate
sanction for discovery violations where, as here, the district
court had previously warned plaintiff that dismissal was a
possible sanction, HMG Prop. Investors, Inc. v. Parque Indus. Rio
Canas, Inc., 847 F.2d 908, 918 (1st Cir. 1988), and plaintiff's
noncompliance was not "a single isolated mishap," id. (quotation
marks and citation omitted). Second, plaintiff's attempt to
blame his misconduct on his former attorney is inapt. See Link
v. Wabash R.R. Co., 370 U.S. 626, 634 n.10 (1962); Georcely v.
Ashcroft, 375 F.3d 45, 50 (1st Cir. 2004). And, third, because
plaintiff did not appeal from the order requiring his counsel to
remain for the duration of discovery, he cannot be heard to
complain about that order.
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The denial of plaintiff's motion for reconsideration is
also affirmed for the same reasons. In addition, to the extent
that the motion for reconsideration was premised largely on
challenges to the district court's factual findings, which are
not pressed in plaintiff's appellate brief, those challenges are
deemed abandoned. United States v. Romain, 393 F.3d 63, 68 (1st
Cir. 2004), cert. denied, 125 S. Ct. 2924 (2005).
Accordingly, the district court's judgment of dismissal
and denial of plaintiff's motion for reconsideration are
affirmed. See Local R. 27(c).
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