McKeague v. One World Technologies, Inc.

United States Court of Appeals
For the First Circuit
No. 16-2148
TODD MCKEAGUE,
Plaintiff, Appellant,
v.
ONE WORLD TECHNOLOGIES, INC.; RYOBI TECHNOLOGIES, INC.;
HOME DEPOT U.S.A., INC.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark G. Mastroianni, U.S. District Judge]
Before
Torruella, Lynch, and Kayatta,
Circuit Judges.
Alfred Paul Chamberland, Law Office of Alfred Chamberland,
Robert Gerard LaFlamme, and Law Office of Robert G. LaFlamme on
brief for appellant.
Anthony V. Agudelo and Sugarman, Rogers, Barshak & Cohen,
P.C. on brief for appellees.
June 8, 2017
KAYATTA, Circuit Judge. This appeal arises out of a
civil case in which the plaintiff's two lawyers did nothing to
prosecute the plaintiff's claims within generous deadlines,
received a second chance, and then failed to oppose a pending
motion for summary judgment. On such a record, we find that the
district court did not abuse its discretion in failing to grant
yet another reprieve.
I.
Todd McKeague suffered injuries to his hand while using
a table saw. In late 2014, he sued the three defendants, claiming
that they were responsible for a defect in the design of the saw
that proximately caused his injuries. Defendants removed the suit
to federal court. In April of 2015, the parties filed a discovery
plan that the district court approved and adopted as an order under
Federal Rule of Civil Procedure 16(b). The plan required the
parties to complete fact discovery by December 31, 2015. It
further required plaintiff to serve expert disclosures by
January 29, 2016, and it required defendants to serve expert
disclosures by March 11, 2016. Expert depositions were to be taken
by April 29, 2016. After the case was assigned to a new judge,
the court modified the order slightly to require that all discovery
requests be served by December 31, 2015, with fact discovery to be
completed within sixty-five days. The court also set May 31, 2016,
as the deadline for filing summary judgment motions, and June 30,
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2016, as the response date. Trial was scheduled for September 19,
2016. All in all, this was plenty of time within which to conduct
pretrial proceedings in ordinary course.
Defendants thereupon propounded discovery, serving
interrogatories and document requests and deposing plaintiff, all
well within the deadlines. Inexplicably, plaintiff served no
discovery before the December 31, 2015, deadline. Instead, in
early February of 2016, and without leave of the court, plaintiff
belatedly served written discovery requests. Plaintiff's counsel
prevailed upon defendants to assent to a motion to extend the
discovery deadline nunc pro tunc, but then never filed the motion.
Worse yet, apparently plaintiff's counsel did not at the
outset retain an expert in this design-defect product-liability
case in which plaintiff concedes an expert is required in order to
get to trial. See Triangle Dress, Inc. v. Bay State Serv., Inc.,
252 N.E.2d 889, 891 (Mass. 1969); Esturban v. Mass. Bay Transp.
Auth., 865 N.E.2d 834, 835–36 (Mass. App. Ct. 2007). But see Smith
v. Ariens Co., 377 N.E.2d 954, 957 (Mass. 1978) ("[I]n cases in
which a jury can find of their own lay knowledge that there exists
a design defect which exposes users of a product to unreasonable
risks of injury, expert testimony that a product is negligently
designed is not required."). In his initial disclosures under
Federal Rule of Civil Procedure 26(a)(1) filed on June 12, 2015,
plaintiff identified Dr. Stephen Gass, David Fanning, and David
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Fulmer (the cofounders of a table saw manufacturer in Oregon) and
Darry Robert Holt (a mechanical engineer) as possible expert
witnesses who could testify about the safe design of table saws
and the likelihood that defendants knew of safer alternative
designs for the saw that plaintiff alleged injured him, but
plaintiff noted in his disclosure that he had "not retained any
expert witness as of the date of this filing." In an interrogatory
answer served four months later on October 26, 2015, plaintiff
added another name to the list, stating that he might call as an
expert witness an engineer named Richard Montifusco. Plaintiff's
counsel, however, did not retain Montifusco or any of the other
four possible experts at that time. The final expert disclosure
deadline under the scheduling order came and went with no expert
designation by plaintiff. Even when defendants subsequently and
timely designated their own expert, plaintiff's lawyers were
nowhere to be found, seemingly content to make no effort at a
counter-designation. Nor was this merely a problem of not filing
something; plaintiff's lawyers had retained no expert to
designate.
Plaintiff's counsel's cumulative neglect came to a head
when defendants timely and predictably filed a motion for summary
judgment on May 31, 2016. Citing Enrich v. Windmere Corp., 616
N.E.2d 1081, 1084 (Mass. 1993), and a handful of other cases,
defendants argued in their motion, among other things, that the
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absence of any expert testimony was fatal to plaintiff's case given
that the table saw functioned properly and suffered from no defect
obvious to any layperson.
Plaintiff's counsel thereupon threw themselves (or,
rather, threw plaintiff) on the mercy of the court, asking that
instead of granting the well-grounded motion for summary judgment,
the court reopen discovery, set a new expert-disclosure deadline
for the plaintiff, order defendants to respond to plaintiff's
untimely discovery, and push back the date by which plaintiff
needed to oppose the summary judgment motion. To the likely
annoyance of the diligent defendants, the district court granted
the delinquents all they sought. The net effect was to swap the
order of production, allowing plaintiff to designate an expert
after defendants had already done so, and after reviewing
defendants' summary judgment motion. In other words, plaintiff
received both mercy and some arguable advantage. Presumably, the
district court decided that any prejudice to defendants was
minimal, enough so to favor an outcome driven by the merits rather
than by plaintiff's counsel's neglect. In its words, the district
court was "reluctant to excuse [plaintiff's counsel's] neglect,
but [was] unwilling to effectively prevent Plaintiff from pursuing
his case solely because of [it]." The indulgence was complete,
granting plaintiff all the time requested, and more, and without
any sanction.
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Having evaded the potential consequences of their
remarkable inattention to their client's case, plaintiff's lawyers
unfortunately stayed their irresponsible course. The new,
extended deadline for filing an opposition to the long-pending
motion for summary judgment came and went without anything -- even
a new motion for extension -- being filed on plaintiff's behalf.
On August 10, 2016, two days after the new deadline passed, the
district court dismissed the case for failure to prosecute and
failure to comply with scheduling orders.
Twelve days after the case was dismissed -- yes, twelve,
not one or two -- plaintiff moved for reconsideration. He argued
he had timely retained an expert, but that the expert needed more
time to review a large number of documents received from defendants
on August 2, 2016, and that the documents should have been
delivered by defendants on August 1, 2016. Unimpressed, the
district court denied the motion for reconsideration. This appeal
followed.
II.
Confronted with repeated failures to comply with its
scheduling orders, the district court had considerable discretion
in deciding what to do. Cf. Freeman v. Package Mach. Co., 865
F.2d 1331, 1341 (1st Cir. 1988). Perhaps it could have granted
yet another extension, although that might have caused one to
wonder if the court's orders meant anything at all. Vélez v.
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Awning Windows, Inc., 375 F.3d 35, 41 (1st Cir. 2004) ("[T]he
judicial process depends heavily on the judge's credibility. . . .
If he or she sets a reasonable due date, parties should not be
allowed casually to flout it or painlessly to escape the
foreseeable consequences of noncompliance." (quoting Méndez v.
Banco Popular, 900 F.2d 4, 7 (1st Cir. 1990))). The district court
certainly could have imposed a monetary sanction on plaintiff or
counsel. See Jones v. Winnepesaukee Realty, 990 F.2d 1, 5–6 (1st
Cir. 1993) (approving monetary sanctions levied pursuant to
Rule 16(f) of the Federal Rules of Civil Procedure, where
sanctioned litigants repeatedly defied court orders). The
question posed by this appeal is whether the district court also
had the discretion to dismiss the case. For the following reasons,
we hold that it did.
We have previously held that when a litigant fails to
comply with court deadlines after having already been once granted
a reprieve from such a failure, and in the absence of a good
excuse, a district court's discretion in setting a sanction is
broad enough to include dismissal. Tower Ventures, Inc. v. City
of Westford, 296 F.3d 43, 46 (1st Cir. 2002). But see García-
Pérez v. Hosp. Metropolitano, 597 F.3d 6, 9 (1st Cir. 2010) (per
curiam) (vacating dismissal where district court contributed to
case's extremely lethargic pace and did not clearly communicate
deadlines to litigants who failed to meet them). Here, plaintiff's
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counsel tried to excuse the ultimate failure by claiming that his
expert did not have enough time to review documents and form an
opinion. Plaintiff's counsel, however, provided zero support for
this bald assertion. Moreover, the record shows that it took until
August 2, 2016, for defendants to produce the full complement of
documents only because plaintiff's counsel repeatedly neglected to
send back a protective order, and that plaintiff's counsel did not
even send the documents produced on August 1 and 2 to plaintiff's
expert until August 13, after the court had entered its order
dismissing the case. The expert, too, formed an opinion within
six days and made no claim to the district court that he needed to
do much other than look at information and materials that had long
been available and in the hands of plaintiff's counsel. Compare
Malot v. Dorado Beach Cottages Assocs., 478 F.3d 40, 44–45 (1st
Cir. 2007) (finding dismissal inappropriate where plaintiffs
"offered legitimate reasons" for delays and "promptly informed"
defendants when it appeared they would likely miss a deadline),
with Hooper-Haas v. Ziegler Holdings, LLC, 690 F.3d 34, 39 (1st
Cir. 2012) (approving entry of default against party that willfully
ignored deadlines and provided no reasonable excuse for its
malfeasance).
The district court acted well within its discretion in
dismissing the instant case, especially when one considers that
the court's dismissal order simply ended a case that just as easily
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could have ended had the court chosen to rule on the unopposed,
long-pending summary judgment motion. At the time the case was
dismissed, defendants' non-frivolous motion for summary judgment
was pending, and plaintiff had neither submitted opposition to
defendants' motion nor moved for an enlargement of time to do so.
Plaintiff essentially asks us to find that a district court abuses
its discretion unless it not only delays ruling on an unopposed
motion for summary judgment, but also sua sponte extends the
deadline for responding to such a motion when the plaintiff himself
is silent. Such a proposed rule makes no sense in light of our
decisions stating that a district court may refuse even a proper
request for more time to oppose summary judgment if the request is
not timely. See Pina v. Children's Place, 740 F.3d 785, 794 (1st
Cir. 2014) (noting that a litigant can move for more time under
Rule 56(d) where he can show that he "cannot present facts
essential to justify [his] opposition," Fed. R. Civ. P. 56(d), but
such motion need only be granted when "timely" and "authoritative,"
because "Rule 56(d) is designed to minister to the vigilant, not
to those who slumber upon perceptible rights" (quoting Mass. Sch.
of Law at Andover, Inc. v. Am. Bar Ass'n, 142 F.3d 26, 45 (1st
Cir. 1998))); cf. Ramos-Peña v. New P.R. Marine Mgmt., Inc., 2 F.
App'x 19, 22 (1st Cir. 2001) (per curiam) (unpublished opinion)
(finding no abuse of discretion in district court's refusal to
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reconsider denial of motion for extension of time to submit
opposition to opponent's motion for summary judgment).
Like the district court, we prefer that adjudications be
driven by the merits of a case rather than the neglect of counsel.
See Malot, 478 F.3d at 43 (recognizing a "strong presumption in
favor of deciding cases on the merits"); Young v. Gordon, 330 F.3d
76, 81 (1st Cir. 2003) (citing HMG Prop. Inv'rs, Inc. v. Parque
Indus. Rio Canas, Inc., 847 F.2d 908, 917 (1st Cir. 1988))
(recognizing the "salutary policy favoring the disposition of
cases on the merits"). As the district court implicitly
recognized, though, at some point this preference takes a backseat
to the important goals of maintaining a fair and orderly
adversarial process. Even schoolchildren know that changing the
rules mid-course to benefit someone who flouted them creates subtle
and even substantial risks of unfairness. Such changes increase
uncertainty, introduce delay, raise costs, and invite further
violations by others. Our case law evidences these competing
considerations. On the one hand, "dismissal ordinarily should be
employed as a sanction only when a plaintiff's misconduct is
extreme." Young, 330 F.3d at 81 (citing Enlace Mercantil
Internacional, Inc. v. Senior Indus., Inc., 848 F.2d 315, 317 (1st
Cir. 1988)); see also Esposito v. Home Depot U.S.A., Inc., 590
F.3d 72, 79 (1st Cir. 2009) (finding dismissal inappropriate where
the district court levied "a fatal sanction . . . for a single
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oversight"); Benitez-Garcia v. Gonzalez-Vega, 468 F.3d 1, 5 (1st
Cir. 2006) (reversing dismissal where there was "no pattern of the
plaintiffs repeatedly flouting court orders"). On the other hand,
"disobedience of court orders, in and of itself, constitutes
extreme misconduct (and, thus, warrants dismissal)." Tower
Ventures, 296 F.3d at 46 (citing Cosme Nieves v. Deshler, 826 F.2d
1, 2 (1st Cir. 1987)); see Young, 330 F.3d at 81.
The bottom line is that we grant a district court wide
discretion in deciding how best to balance these considerations
fairly in a particular case. See Batiz Chamorro v. P.R. Cars,
Inc., 304 F.3d 1, 4 (1st Cir. 2002); Aoude v. Mobil Oil Corp., 892
F.2d 1115, 1117 (1st Cir. 1989). The district court has a better
sense of the underlying equities, the bona fides of counsel's
explanations, and the likelihood that a dispensation will make a
difference. Here, given the failure of plaintiff's lawyers to
prosecute his claim and their repeated flouting of reasonable
deadlines, the district court demonstrated a reasonable sense of
nuance in doing the necessary balancing.
Affirmed.
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