USCA1 Opinion

April 15, 1996

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

____________________

No. 95-1595

J. DONALD ROBSON, ET AL.,

Plaintiffs, Appellants,

v.

GILMAN HALLENBECK, ET AL.,

Defendants, Appellees.

____________________

No. 95-1983

J. DONALD ROBSON, ET AL.,

Plaintiffs, Appellees,

v.

GILMAN HALLENBECK, ET AL.,

Defendants, Appellants.

____________________

ERRATA SHEET
ERRATA SHEET

The opinion of this

court issued on

April 3, 1996 is amended

follows:

On page 7, paragraph 2,

line 2, add the word "to" before the w

"meet."

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 95-1595

J. DONALD ROBSON, ET AL.,

Plaintiffs, Appellants,

v.

GILMAN HALLENBECK, ET AL.,

Defendants, Appellees.

____________________

No. 95-1983

J. DONALD ROBSON, ET AL.,

Plaintiffs, Appellees,

v.

GILMAN HALLENBECK, ET AL.,

Defendants, Appellants.

____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Edward F. Harrington, U.S. District Judge]

___________________

____________________

Before

Selya, Boudin and Lynch,

Circuit Judges.
______________

____________________

Michael T. Phelan for plaintiffs.

_________________
John C. Ottenberg
__________________

with whom Berry, Ottenberg, Dunkless & Par

_________________________________

was on consolidated brief for defendants.

____________________

April 3, 1996
____________________

BOUDIN, Circuit Judge.

______________

The plaintiffs, J.

Donald and

Sandra Robson, brought suit against Gilman Hallenbeck and Dan

DiCarlo,

alleging

that

the defendants

breached

fiduciary

duties owed to the Robsons, administered a trust in a grossly

negligent manner, and

action need

the

committed fraud.

not be discussed,

plaintiffs'

appeal is

defendants' invitation

details of this

since the principal

procedural

to reach

The

and

issue in

we decline

the merits on

the

their cross-

appeal.

case was ultimately

dismissed on

account of the plaintiffs' conduct in pre-trial

proceedings,

But

because the

description of the events

leading up to

the dismissal is

required.

At

a pre-trial

conference on

district judge entered an order

meet a

series of deadlines

September 30,

1994, the

that required the parties to

in preparation for

trial, which

was set for May 1, 1995:

By April 10, 1995, the parties were to file a

stipulation of uncontested
statement

of issues

to

facts, together with

be tried

and

a list

a
of

witnesses for each side.

By April 17, the parties were to submit lists

of proposed exhibits.

By April 24, the parties were to file notices

of

any objections

to proposed exhibits

or expert

witnesses.

The parties were also directed

the opposing party for

to make exhibits available to

inspection, to file a trial

brief by

-2-2-

the day of trial, and to file requests for rulings

of law on

the day of trial.

The

attend

plaintiffs'

Michael Phelan,

failed

to

the September 1994 pre-trial conference, but received

notice of the

described

order and its timetable.

Under circumstances

more fully below, the plaintiffs

April 10

facts.

attorney,

deadline for filing the

did not meet the

stipulation of uncontested

The plaintiffs also failed to file a list of proposed

exhibits

by

plaintiffs

April

made

defense

counsel

deadline

for

Finally, the

17.

their

The

exhibits

reasonably

filing

parties

in

dispute

available

advance of

objections

to

for

review

by

24,

the

April

proposed

plaintiffs filed their requests

whether the

exhibits.

for rulings of

law on May 9, eight days late.

On

May

1,

when

the

trial

was

scheduled to

begin,

attorney

Phelan

appeared

in

court

15

minutes

late

and

discovered that the judge had already dismissed the case with

prejudice for

order.

failure to

The plaintiffs

comply with the

filed a motion to vacate the order of

dismissal; the

district judge

May 24,

On

1995.

court's pre-trial

denied it without

June 22, 1995,

opinion the plaintiffs' motion

opinion on

the judge denied

without

to reconsider their motion to

vacate.

On

appeal, the

abused its

Robsons argue

discretion in

that the

dismissing the case

-3-3-

district court

because their

actions did

not amount

to "extreme" misconduct,

see Enlace
___ ______

Mercantil Internacional v. Senior Industries, 848 F.2d 315,

________________________
__________________

317 (1st

Cir. 1988),

that any

order were excusable and

defendants,

and

that

violations of

the pre-trial

did not prejudice the court

lesser sanction

would

have

or the

been

appropriate.

It is hard to find an area of law in which the governing

rules are, and probably

district

court

has

discipline and to

trial orders.

have to be, so vague.

broad

authority

dismiss a

Fed.

to enforce

case for failure

R. Civ.

P. 16(f),

pre-trial

to obey

41(b); see
___

Wabash Railroad Co., 370 U.S. 626 (1962).

____________________

that

Admittedly, a

pre-

Link v.
____

The difficulty is

the range of circumstances is so vast, and the problems

so much matters of degree, as to defy mechanical rules.

the cases,

taken together,

do

is to

set forth

What

a list

of

is

not

pertinent considerations.

Among

those

complete) are

of

the

commonly

mentioned

the severity of the

party's

excuse,

(this

list

violation, the legitimacy

repetition

of

violations,

the

deliberateness vel non of the misconduct, mitigating excuses,

___ ___

prejudice

court, and

to the

other side

and to

the operations

the adequacy of lesser sanctions.1

case management is

of the

Mindful that

a fact-specific matter within

the ken of

____________________

1See Figueroa Ruiz v. Alegria,

___ ______________
_______
Cir. 1990); 9
Procedure
_________

C. Wright

& A. Miller,

2370 (2d ed. 1995).

-4-4-

896 F.2d 645,

648 (1st

Federal Practice and

_____________________

the district court, reviewing courts have reversed only for a

clear

abuse of discretion.

Damiani v.
_______

Rhode Island Hosp.,

__________________

704 F.2d 12, 17 (1st Cir. 1983) (collecting cases).

There is also a procedural dimension.

and

41 do

counsel's

not

disregard

exacerbates the

mitigates it.

920

formally require

of

prior

offense, and

F.2d 1072,

1078

plaintiff is given an

(1st

any particular

warning

the lack of

Velazquez-Rivera v.
________________

Cir.

Although Rules 16

from

procedure,

the

court

warning sometimes

Sea-Land Service, Inc.,

_______________________

1990).

Ordinarily,

opportunity to explain the

the

default or

argue

for a lesser penalty; but again there is no mechanical

rule.

Link,
____

370 U.S. at 632.

The presence or absence of an

explanation by

the district court may also be a factor.

See
___

Damiani, 704 F.2d at 17.

_______

In this

apparent

factual

instance, our main

pattern

have

v.

of noncompliance

disputes exist

including excuses

concern is that

over the

offered as to

by

despite an

plaintiffs' counsel,

extent of

the misconduct,

each of the

episodes, that

never been resolved by the district court.

General Motors Corp., 437

_____________________

1971).

If we were

negligence

harsh

showing

where

rather

F.2d

Cf. Richman
___ _______

196, 199-200

(1st Cir.

dealing in this case with a minor

than a

no prior

pattern,

warning was

of special prejudice to the

dismissal

given

act of

might appear

and there

was no

opponents or the court.

See Velazquez-Rivera, 920 F.2d at 1077-78.

___ ________________

-5-5-

In considering

put to one

the likely

bases for the

dismissal, we

side plaintiffs' failure to attend

the pre-trial

hearing, since there is no indication that the district court

considered

it

in deciding

to dismiss

the

case.

We also

ignore Phelan's 15-minutes late arrival

because

by

the time

already dismissed

lateness

the

he arrived

the case

was excused.

trial, the

without considering

What remains is

missed pre-trial deadlines,

court had

whether his

to consider whether

taken together,

provide an

They might well do

so but in

has offered some excuse that

has never

adequate basis for dismissal.

each instance Phelan

for

on the day of trial,

been addressed.

1.

Late filing of stipulation of uncontested facts.

__________________________________________________

The parties

did not

April 3, when the

start discussing the

stipulation until

defendants' attorney, John Ottenberg, sent

Phelan a draft of a proposed stipulation by fax.

Ottenberg advised that he

On April 6,

wished to add one witness

for the

defense.

On April

7, a Friday

and the

last business

day

before the stipulation was due, Phelan sent back a draft with

changes.

The defendants

the proposed

say that in

addition to modifying

facts, Phelan made unauthorized

alterations to

the defendants' list of witnesses.

___________

The defendants found some of these

and sent

did

another draft to Phelan

not respond until after

changes unacceptable

on that same

the close of

-6-6-

day.

Phelan

business on April

10,

when

he

rejected.

sent a

No joint

further

which the

stipulation was filed, and on

Phelan contacted a court

clerk, who advised him to

own version of the stipulation.

separate

draft,

defendants

April 11,

file his

Although defendants filed

stipulation on April 12, Phelan did not do so until

April 20.

Phelan

says he

contracted a

sinus and

lung infection

during the time the parties were negotiating the stipulation.

This might account for his delay in filing his version of the

stipulation,

but it does not

explain why he

waited so long

before

starting

defendants.

it

to

At best,

is difficult

to

discuss

the

stipulation

with

the

Phelan's conduct appears careless, but

tell

without

knowing why

Phelan

did

nothing until Ottenberg seized the initiative.

2.

Late filing of exhibit list due April 17.

__________________________________________

also failed

list of

Phelan

to meet

claims

that his

failure

mitigation

illness

and further

should be no

week after

his

April 17 for

filing a

exhibits; he filed the list a week late on April 24.

exhibits on time,

"there

the deadline of

Phelan

file

his filing

the

that a court

clerk told

him

problem" if he filed

the deadline.

to

prevented

the list within a

Phelan's position is

motion,

if he did suffer

but

there

a serious illness

weakened by

is

certainly

in this time

frame, a matter the district court did not address.

-7-7-

3.

Ottenberg

exhibits on

Failure to make exhibits available for review.

_________________________________________________

says

he

requested

April 3 and again

access

to

the

plaintiffs'

on April 17, but

that Phelan

did

not

respond.

Phelan,

in contrast,

exhibits were available for review on

asserts

April 14.

that the

It is

hard

to know which account is correct, and the district court made

no finding on the point.2

On appeal,

Phelan argues

that the pre-trial

order did

not set a deadline for making exhibits available to the other

side.

But on any reasonable reading, the order required the

parties to

make exhibits available reasonably

in advance of

April 24, when objections to

the proposed exhibits were due.

Far from

this defense detracts

supporting Phelan,

from his

position.

The need for remand is evident.

in

all three

episodes,

If Phelan was

dismissal was

within the

at fault

district

court's discretion; on the

for

all three

matter.

and

We leave

other hand, Phelan offers excuses

there are

no

findings to

resolve

the

it open to the district court to reinstate

____________________

2There is
the
to

some reason

to question Phelan's

claim that

exhibits were available as early as April 14.

the defense,

Phelan and

on April

27, Ottenberg's

offered to exchange

said he would have his

According

paralegal called

copies of exhibits.

Phelan

exhibits copied by the next day.

On

April 28, the last business day before trial, Phelan informed
Ottenberg that
were

the copies were

not ready

but the

exhibits

available for review and Ottenberg could use the copier

in Phelan's office.

-8-8-

the dismissal if it supportably finds

a pattern of unexcused

noncompliance with the court's order.

We reject

now the Robsons' alternative

arguments as to

why such a pattern even if proved could not justify dismissal

in

this case.

First,

the Robsons

showing of prejudice, such

defense.

would

In our

aggravate

justify dismissal.

argue that there

as the loss of a witness

view, such a specific showing

the misconduct,

but

is

is no

for the

of prejudice

not necessary

Cf. Figueroa Ruiz v. Alegria,

___ ______________
_______

to

896 F.2d

645,

649

(1st

Cir.

scheduling

order

disruption

of the

1990).

is

Repeated

inherently

court's schedule

disobedience

prejudicial,

and the

of

because

preparation of

other parties nearly always results.

Second, the Robsons argue that the sanction of dismissal

is

too severe in these

merit to the

single

plaintiffs' argument

instance of

violations,

comply

with

enough

to

crowded for

circumstances.

careless

justify

dismissal.

parties to

if we were

misconduct.

however, indicating

a court-imposed

There

a general

scheduling

Calendars

might be some

faced with

A succession

of

unwillingness to

order,

are

treat scheduling orders

is for

simply

us

too

as optional

and to conduct trial preparations at their own convenience.

Finally,

that

the Robsons

the court

point to

was considering

the absence

dismissal.

of warning

This may

be a

pertinent factor in evaluating a dismissal, especially if the

-9-9-

conduct

in

requirement.

question did

not

violate

a clear

preexisting

In this case, however, the scheduling order is

clear and by its

deadlines.

terms requires the parties to

A court need not provide

meet certain

warning that dismissal

will result from repeated violations of such an order.

The

defendants have

court's denial on March

cross-appealed

from the

9, 1994 of their motion

district

to dismiss,

for judgment on the pleadings, and for summary judgment.

denial

of

the

defendants'

appealable as a final

942

order.

F.2d 48, 54-55 (1st

1082

(1992).

This

motion

is

See Pedraza v.
___ _______

Cir. 1991), cert.

_____

court has

not

said

The

independently

Shell Oil Co.,

_____________

denied, 502 U.S.

______

it will

generally not

review denials of summary judgment or the like ancillary to a

different appealable order, although

saying

such review

is always

it has stopped short of

foreclosed.

Id.; see
___ ___

10 C.

Wright et al., Federal Practice and Procedure

__ ___ ______________________________

2715, at 636-

38 (2d ed. 1983).

Assuming this court could choose to review the denial of

defendants'

that this

motions on

is

general rule

order.

not the

an ancillary

case

against such

basis, we

for such

review of an

are certain

an exception

to

the

otherwise non-final

The cross-appeal here attempts to present a factually

complex summary judgment claim that is not closely related to

our review

of the appealable

order dismissing the

-10-10-

case for

misconduct.

There

is

no simple,

abstract legal

question

whose resolution now might avoid a lengthy trial.

In

vacating the

order of

further

proceedings,

we are

dismissal and

not

remanding for

suggesting that

explicit

findings with respect to a party's misconduct and excuses are

necessary

may

for every such dismissal.

be easily inferred from

here is that there

In many cases findings

the record.

What is difficult

are at least three different

episodes of

misconduct,

the plaintiffs' counsel

for each, and the

on the

matter

has proffered an excuse

district court has not expressed

that would

permit

us to

provide

any view

effective

review.

The judgment of

the district court

case is remanded for further proceedings.

________

is vacated and
_______

the

-11-11-