BETHZAIDA CINTRÓN-LORENZO ET AL., Plaintiffs, Appellants, v. DEPARTAMENTO DE ASUNTOS DEL CONSUMIDOR ET AL., Defendants, Appellees.
No. 02-1387
United States Court of Appeals For the First Circuit
December 10, 2002
Hon. José Antonio Fusté, U.S. District Judge
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
Before Selya, Circuit Judge, Coffin and Cyr, Senior Circuit Judges.
Roberto J. Sánchez Ramos, Solicitor General, Vanessa Lugo Flores, Deputy Solicitor General, and Jaime Mercado-Almodóvar, Assistant Solicitor General, on brief for appellees.
The subsidiary facts are fairly straightforward (although the record is ragged and the briefs confuse certain of the dates). DACO hired Cintrón as an attorney in or around 1997. The working relationship did not go smoothly. As a result, Cintrón filed a multifaceted claim of discrimination with the Equal Employment Opportunity Commission (EEOC) during the year 2000. In that document she charged DACO with violating the Americans with Disabilities Act (ADA),
On August 15, 2000, Cintrón, armed with the right-to-sue letter, filed a pro se complaint in the federal district court. She again claimed that DACO had violated both the ADA and her right to free political association under the First Amendment. For good measure, she also alleged, inter alia, violations of the Fifth and Fourteenth Amendments;
On November 29, 2000, the district court, citing Cintrón‘s failure to seek the issuance and service of summonses, ordered her to show cause why her case should not be dismissed for lack of diligent prosecution. See
On February 16, 2001, Cintrón requested a further sixty-day extension in order to procure legal representation. Four days later, DACO served the plaintiff with a motion to dismiss the action for lack of subject matter jurisdiction and failure to state a claim.2 On March 15, 2001, DACO gave notice that it had served the plaintiff
In April of 2001, the further sixty-day extension sought in Cintrón‘s February 16 motion expired without an entry of appearance on her behalf. She remained mute. On June 4, 2001, DACO filed yet a third motion to dismiss, but Cintrón again neglected to reply.
On June 21, 2001, the district court advised Cintrón that it would give her until July 2, 2001 to retain counsel and/or answer the pending motions. In that order, the court noted that it had, in effect, given Cintrón extra time; and that the extensions she had sought had “long elapsed.” The court explicitly warned Cintrón that “[t]his [the grace period lasting through July 2, 2001] is the last extension before considering dismissing the case for lack of diligent prosecution.” The court‘s admonition went unheeded: Cintrón did nothing, and, on July 16, 2001, the district court, true to its word, dismissed the case under
On July 27, 2001, an attorney filed an entry of appearance on Cintrón‘s behalf, along with a motion for reconsideration.3 The court summarily denied the motion. This appeal followed.
We turn first to the district court‘s dismissal of the case for want of diligent prosecution. Cintrón‘s basic argument is that she was suffering from many afflictions (physical, psychological, and emotional) during the spring of 2001. These culminated in the performance of a biopsy on June 8, followed by a cancer diagnosis two weeks later. The problem, however, is that she failed to bring any of these travails to the attention of the district court in a timeous fashion. Instead, Cintrón dawdled for upwards of seven months; her only meaningful response during that period was a filing, early on, that attributed her dilatoriness to difficulty in securing the services of outside counsel. In that filing, she asked for an additional sixty days within which to retain counsel. But that period — like the initial forty-five-to-sixty-day period that she had specified — came and went without the achievement of any noticeable progress. During and after that interval, she neither secured counsel, nor answered the several pending motions, nor apprised the court of a need for more time, nor revealed that her efforts were hampered by medical problems.
Against this backdrop, the order of dismissal cannot be faulted.4 A district
the law favoring the disposition of cases on the merits. See HMG Prop. Investors, Inc. v. Parque Indus. Rio Canas, Inc., 847 F.2d 908, 917 (1st Cir. 1988); Richman v. Gen. Motors Corp., 437 F.2d 196, 199 (1st Cir. 1971). We remain mindful, however, that courts — especially trial courts — “must be given considerable leeway in exercising their admitted authority to punish laggardly or noncompliant litigants.” Batiz Chamorro v. P.R. Cars, Inc., 304 F.3d 1, 4 (1st Cir. 2002).
Here, the court exhibited extraordinary patience. First, it warned Cintrón, as early as December of 2000, that she was risking dismissal for lack of prosecution. Second, when Cintrón requested up to sixty days to put her case back on track, the court gave her that indulgence. Third, when she sought a further sixty-day period within which to regroup, the court again indulged her (and, indeed, effectively gave her twice that amount of time). Even at that juncture, the court did not dismiss the action outright, but, rather, issued another warning and allowed Cintrón a further opportunity to make amends. Cintrón rewarded this magnanimity by stonewalling: she never communicated with the court in an effort either to explain her personal situation or to shed light on what efforts she was making to obtain legal representation. In the end, the court was faced with Cintrón‘s protracted — and largely unexplained — noncompliance with time limits imposed by standing rules and specific orders. This protracted noncompliance, in the teeth of explicit warnings, amply justified a termination of the action. See Top Entertainment Inc. v. Ortega, 285 F.3d 115, 118-19 (1st Cir. 2002); Figueroa Ruiz v. Alegria, 896 F.2d 645, 648 (1st Cir. 1990); cf. Tower Ventures, 296 F.3d at 46 (explaining that “disobedience of court orders, in and of itself, constitutes extreme misconduct (and, thus, warrants dismissal)“).
We think it is particularly noteworthy that Cintrón requested successive extensions of time within which to retain counsel, thus impliedly promising compliance by the end of that aggregate period. As we have said, “[w]hen a litigant seeks an extension of time and proposes a compliance date, the court is entitled to expect that the litigant will meet its self-imposed deadline.” Tower Ventures, 296 F.3d at 47. Cintrón‘s failure to achieve the time line that she herself had suggested weighs heavily against her. See id. (holding that, absent “excusatory circumstances,” a litigant‘s failure to adhere to such a deadline “warrants an inference of deliberate manipulation“).
Cintrón‘s argument that pro se plaintiffs deserve greater leniency strikes us as disingenuous. There are, of course, some settings in which such leniency is appropriate. See, e.g., Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam); Instituto de Educacion Universal Corp. v. United States Dep‘t of Educ., 209 F.3d 18, 23-24 (1st Cir. 2000). Here, however, the district
We turn next to Cintrón‘s motion for reconsideration. However that motion is characterized, see supra note 3, we review the district court‘s disposition of it for abuse of discretion. See Teamsters, Chauffeurs, Warehousemen & Helpers Union v. Superline Transp. Co., 953 F.2d 17, 19 (1st Cir. 1992) (explicating standard of review referable to Rule 60(b) motions); Appeal of Sun Pipe Line Co., 831 F.2d 22, 24-25 (1st Cir. 1987) (explicating standard of review referable to Rule 59(e) motions). We discern no abuse of the trial court‘s discretion here.
For convenience, we use the Rule 60(b) standard (although the outcome would be the same under the jurisprudence of Rule 59(e)). We have made it transparently clear that relief under Rule 60(b) “is extraordinary in nature.” Karak, 288 F.3d at 19. Accordingly, “motions invoking that rule should be granted sparingly.” Id. In considering such a motion, we recognize the district court‘s “intimate, first-hand knowledge of the case,” and, thus, defer broadly to that court‘s informed discretion. Id.
Cintrón claims that her failure to prosecute was the result of excusable neglect (and, therefore, should have been forgiven). She identifies her personal problems and her inability to retain counsel as exceptional circumstances justifying relief from judgment. We reject this proffer. The determination of what constitutes excusable neglect in a given case requires that the court take into account the totality of the circumstances surrounding the movant‘s omissions. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P‘ship, 507 U.S. 380, 395 (1993); Dávila-Álvarez v. Escuela de Medicina, 257 F.3d 58, 64 (1st Cir. 2001).
At a bare minimum, a party who seeks relief from judgment on the basis of excusable neglect must offer a convincing explanation as to why the neglect was excusable. Graphic Comm‘ns Int‘l Union v. Quebecor Printing Prov., Inc., 270 F.3d 1, 5 (1st Cir. 2001); Hosp. del Maestro v. NLRB, 263 F.3d 173, 175 (1st Cir. 2001) (per curiam). Cintrón has not carried this burden: the length of the delay was inordinate in this case; Cintrón‘s condition varied over time; and even if her ailments interfered to some extent with her ability to secure counsel — a matter on which we take no view — she offers no credible excuse for not communicating her plight to the district court in a timely fashion. When a litigant (especially a litigant who is trained as a lawyer) elects to file a suit pro se, her duty of attending to the case is not automatically excused by personal tragedy or emotional upheaval.
The plaintiff‘s failure to communicate with the court brings this point into sharp focus. As we explained two decades ago, a party‘s “first obligation is to make every effort to comply with the court‘s order. The second is to seek consent if compliance is, in fact, impossible. And the third is to seek court approval for noncompliance based on a truly valid reason.” Damiani v. R.I. Hosp., 704 F.2d 12, 17 (1st Cir. 1983). Cintrón blatantly violated this code of conduct: among other things, she
That ends this aspect of the matter. Although Cintrón‘s case evokes sympathy, we often have remarked that hard cases have a propensity to make bad law. E.g., Burnham v. Guardian Life Ins. Co., 873 F.2d 486, 487 (1st Cir. 1989). Bearing in mind that the district court “is best positioned to determine whether the justification proffered in support of a Rule 60(b) motion should serve to override the opposing party‘s rights and the law‘s institutional interest in finality,” Karak, 288 F.3d at 19, we conclude that the circumstances to which Cintrón alludes, taken as a whole, are not sufficiently excusatory to demand the extraordinary relief that she requests.
We need go no further. “In our adversary system of justice, each litigant remains under an abiding duty to take the legal steps that are necessary to protect his or her own interests.” Cotto v. United States, 993 F.2d 274, 278 (1st Cir. 1993). Given Cintrón‘s patent disregard of this duty, extending over many months, we hold that the district court acted within its discretion both in dismissing Cintrón‘s case for lack of prosecution and in denying her motion for reconsideration.
Affirmed.