Strahan v. New England Aquarium , 25 F. App'x 7 ( 2002 )


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  •       [NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
    United States Court of Appeals
    For the First Circuit
    No. 00-2361
    RICHARD MAX STRAHAN,
    Plaintiff, Appellant,
    v.
    NEW ENGLAND AQUARIUM, ET AL.,
    Defendants, Appellees.
    ____________________
    No. 00-2363
    RICHARD MAX STRAHAN,
    Plaintiff, Appellant,
    v.
    ROBERT HURST, ET AL.,
    Defendants, Appellees.
    APPEALS FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. Douglas P. Woodlock, U.S. District Judge]
    Before
    Boudin, Chief Judge,
    Selya and Lipez, Circuit Judges.
    Richard Max Strahan on brief pro se.
    Edward T. Patten on brief for appellee Dolphin Fleet of
    Provincetown, Inc.
    Ansel B. Chaplin and Chaplin & Chaplin on brief for appellee
    Center for Coastal Studies.
    Joseph F. Shea and Nutter, McClennen & Fish on brief for
    appellee New England Aquarium.
    John C. Cruden, Acting Assistant Attorney General, Samuel
    D. Rauch and Mark R. Haag, Attorneys, Department of Justice, and
    Francis H. Esposito, Office of the Chief Counsel, United States
    Coast Guard, on brief for Federal appellees.
    January 15, 2002
    Per Curiam. In these consolidated pro se appeals,
    Richard Max Strahan challenges the summary dismissal of
    separate lawsuits alleging violation of § 9 of the Endangered
    Species Act ("ESA"), 16 U.S.C. § 1538(a).           The lawsuits were
    brought on behalf of listed species of whales, and in one
    case, also on behalf of listed species of sea turtles.            For
    the following reasons, we affirm.
    Strahan v.      New England Aquarium challenges the
    practices of whale watch vessels operated by the New England
    Aquarium and the Dolphin Fleet of Provincetown, Inc. Strahan
    v. Hurst challenges United States Coast Guard operations.
    In both cases, defendants filed motions for summary judgment
    and   Strahan    sought   extensions    of   time   for   responding.
    Roughly three months after the last extension expired, and
    in the absence of any further filings by Strahan (must less
    any   document    supporting   an      opposition    to   defendants'
    motions), the district court dismissed the two suits for lack
    of prosecution under Fed. R. Civ. P. 41(b) and on the
    alternative ground that the motions for summary judgment were
    well-founded.
    A summary judgment motion cannot be granted based
    on an adverse party's failure to respond.            See Carmona v.
    Toledo, 
    215 F.3d 134
    n.9 (1st Cir. 2000); Fed. R. Civ. P.
    56(e) (if adverse party fails to respond, "summary judgment,
    if   appropriate,   shall   be    entered")     (emphasis   added).
    However, there is some authority that, notwithstanding this
    rule, a case can be dismissed at the summary judgment stage
    under Rule 41(b) if the court determines that the plaintiff's
    failure to respond constitutes a failure to prosecute.         See,
    e.g., Custer v. Pan American Life Ins. Co., 
    12 F.3d 410
    , 415
    (4th Cir. 1993); Lediju v. New York City Dep't of Sanitation,
    
    173 F.R.D. 105
    , 110 (S.D.N.Y. 1997).
    In the instant case, Strahan's failure to meet the
    extended deadlines for filing oppositions fell against a
    recent background of missed deadlines and delay on his part.
    Contrary to his suggestion, a warning is not an absolute
    requirement before dismissal.          See Robson v. Hallenbeck, 
    81 F.3d 1
    , 3-4 (1st Cir. 1996).      Strahan had the opportunity to
    explain his defaults by way of a motion to reinstate.            He
    filed such a motion but did not proffer any valid excuses.
    Arguably, Strahan's conduct rose to the level of a
    failure to prosecute under Rule 41(b).         However, we need not
    decide whether the dismissals can be upheld on this basis
    alone.   The district court did not purport to dismiss the two
    cases solely on this ground but rather made an independent
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    determination that summary judgment was warranted.                            Upon
    review   of    the   record,     we,    too,    are   persuaded        that    the
    dismissals were otherwise justified.
    Summary    judgment      was    warranted    in    New    England
    Aquarium based on Strahan's failure to comply with Loc. R.
    56.1, which justified the court in deeming admitted the facts
    presented in the movants' statements of undisputed facts.
    See Ruiz Rivera v. Riley, 
    209 F.3d 24
    , 28 (1st Cir. 2000).
    Strahan suggests on appeal, without record citation, that the
    record contains "several scientific studies" sufficient to
    create a material issue of fact.                However, the presence of
    Loc. R. 56.1, requiring Strahan to file a response to guide
    the court, removed any requirement that otherwise might exist
    that the district court ferret through the record before
    ruling on defendants' summary judgment motions.                    See Jaroma
    v. Massey, 
    873 F.2d 17
    , 21 (1st Cir. 1989).                     In any event,
    Strahan fails to specifically identify any of these studies
    or explain how they enhance his claims.1
    The   dismissal    in    Hurst    was   warranted        based    on
    Strahan's      failure    to    comply       with   the   sixty-day      notice
    1 We also reject Strahan's suggestion that summary judgment
    was improper because he was provided inadequate opportunity for
    discovery. Strahan does not articulate what discovery he sought
    or needed, and, thus, provides no basis to question the district
    court's handling of discovery.
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    requirement    before     filing     suit.   See   16   U.S.C.   §
    1540(g)(2)(A)(i) (providing that a citizen may not bring suit
    under the ESA prior to sixty days after written notice of an
    alleged violation has been given to the Secretary and the
    alleged violator).      Strahan sent his notice of intent to sue
    on March 19, 1998, and the complaint was filed only twenty-
    eight days later.       This court has interpreted the sixty-day
    notice requirement in environmental statute citizen suits
    strictly.    See Water Keeper Alliance v. United States Dep't
    of Defense, 
    271 F.3d 21
    , 29 (1st Cir. 2001).2
    Affirmed.
    2We recognize that the notice mailed in Hurst purported to
    be a "continuation" of notices sent between 1989 and 1992.
    However, in the interim, Strahan litigated Strahan v. Linnon,
    94cv11128, involving a substantially identical "takings" claim.
    In 1997, Linnon was resolved in the Coast Guard's favor. See
    Strahan v. Linnon, 
    967 F. Supp. 581
    (D. Mass. 1997). Hurst is
    based, in part, on events that post-date Linnon. However, to
    the extent that the second suit could go forward and is not
    precluded by the first, new notice and a full sixty-day period
    was required.
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