Naidich v. Mitre Cor & Horowitz ( 1993 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]


                            UNITED STATES COURT OF APPEALS

                                For The FIRST CIRCUIT

                                 ____________________


        No. 93-1038 

                                 HERBERT H. NAIDICH,

                                Plaintiff, Appellant,

                                          v.

                      THE MITRE CORPORATION & BARRY M. HOROWITZ,

                                Defendants, Appellees.


                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. William G. Young, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                              Torruella, Cyr and Boudin,
                                   Circuit Judges.
                                   ______________

                                 ____________________

            Herbert H. Naidich on brief pro se.
            __________________
            David  J. Kerman, Herbert L. Holtz and Ropes &  Gray, on brief for
            ________________  ________________     _____________
        appellees.


                                 ____________________

                                    June 11, 1993
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                 Per  Curiam.   The appellant,  Herbert  H. Naidich,  has
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            appealed  the denial  of his  "motion to  reopen" a  district

            court order dismissing  his lawsuit for failure  to prosecute

            and failure to attend a court session.  In the absence of any

            designation to the  contrary, we treat the  court's dismissal

            as  a dismissal with prejudice.  Velazquez-Rivera v. Sea-Land
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            Serv., Inc., 920  F.2d 1072, 1075 (1st Cir.  1990).  Although
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            such a dismissal is a harsh sanction, we conclude that it was

            within the court's permissible discretion in this case.

                 The gist of the matter is briefly stated.  On October 7,

            1992, two  years after the  start of this  age discrimination

            suit, defendants  filed  a  substantial  motion  for  summary

            judgment.  The district court  on October 13, 1992, issued an

            order setting a scheduling conference for October 23 pursuant

            to Fed.  R. Civ.  P. 16(b) and  D. Mass. Loc.  R. 16.1.   The

            order specified that  its provisions relating to  preparation

            for the conference  were of the utmost importance.   By cross

            reference, it  noted that sanctions  including dismissal were

            authorized  for  failure   to  comply.    An   opposition  to

            defendants'  motion  was  due under  the  governing  rules by

            October 21.1






                                
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            1.  We reject Naidich's suggestion that the dismissal in this
            case was  pursuant to D. Mass.  Loc. R. 41.1(b), as  the case
            was not on  any "dismissal calendar,"  as referenced in  that
            rule.















                 Naidich  neither appeared  at the  scheduling conference

            nor filed a timely opposition to the summary judgment motion.

            When Naidich did not appear, the district court dismissed the

            case.  Naidich then filed a motion to reopen, but he  did not

            adequately explain  his  failure  to  attend  the  scheduling

            conference whose importance  had been plainly stressed.   Nor

            did  he  adequately  explain  his failure  to  file  a timely

            opposition to  the motion for  summary judgment.   It appears

            that Naidich's failure  to appear  may have  been related  to

            disagreements  with  defense  counsel about  the  preliminary

            steps  but  there  is  no  doubt that  Naidich  knew  of  the

            scheduled conference and disregarded that obligation.

                 There  is ample  authority  for  dismissal  where  court

            ordered  deadlines  or  other   obligations  are  ignored  by

            litigants, Fed.  R. Civ. P.  41(b), Link v. Wabash  R.R., 370
                                                ____    ____________

            U.S. 626, 630-31  (1962), and case precedent  sustaining such

            dismissals as well.  Figueroa  Ruiz v. Alegria, 896 F.2d 645,
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            649 (1st Cir.  1990) (dismissal where plaintiffs  were guilty

            not only of simple delay but of disobedience of a court order

            as well); Zavala  Santiago v. Gonzalez Rivera,  553 F.2d 710,
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            713 (1st  Cir. 1977) (dismissal where  plaintiffs disregarded

            court-ordered deadlines and  counsel failed to appear  at the

            pretrial conference).

                 Equally  important, Naidich did  not seek leave,  at the

            time  he sought to  reopen, to file the  tardy opposition.  A



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            court  asked   to  forgive   procedural  defaults,   and  the

            consequent waste of its time and resources, ought at the very

            least be assured  that there is  some purpose to  reinstating

            the case.  Evennow we think no such purpose hasbeen made out.

                 Indeed, because the sanction is a severe one and Naidich

            is proceeding  pro se, we  might find  this a  close case  if

            anything  filed by Naidich in the district court demonstrated

            a substantial  defense to the  summary judgment motion.   But

            even now on appeal -- and appeal is too late -- Naidich makes

            only  conclusory and unsupported  assertions that, except for

            the  defendants'  description  of  the  company,  every other

            statement   is   "untrue"  and   defendants'   documents  are

            "forgeries"  and  "deceptions."     Given  defendants'  quite

            thorough  and well-documented  affidavits  -- which  strongly

            indicate  that Naidich's discharge was due to performance and

            not  age  --  Naidich's  epithets  are of  no  weight.    See
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            generally Teamsters,  Chauffeurs  Local No.  59 v.  Superline
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            Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992) (in order to set
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            aside a judgment,  a movant must at least  establish, by more

            than  a purely  conclusory allegation,  that  it possesses  a

            potentially meritorious claim).

                 There  was no abuse  of discretion either  in dismissing

            this lawsuit or  in denying the motion to  reopen.  The order

            of the  district court  is, therefore,  affirmed.   Naidich's
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            "motion to  compel," filed in  this court and which  asks for



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            the imposition of sanctions, is denied.
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