Diaz-Santos v. Department of Education , 108 F. App'x 638 ( 2004 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-1234
JUDITH DIAZ-SANTOS,
Plaintiff, Appellant,
v.
DEPARTMENT OF EDUCATION
OF THE COMMONWEALTH OF PUERTO RICO, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Boudin, Chief Judge,
Stahl, Senior Circuit Judge,
and Torruella, Circuit Judge.
Darlena H. Connick Waska and Law Offices of Pedro E. Ortiz
Alvarez on brief for appellant.
Gary H. Montilla and Quiñones & Sánchez on brief for
appellees.
August 13, 2004
Per curiam. Plaintiff-appellant Judith Díaz-Santos appeals
from the district court’s dismissal of her employment
discrimination claim for failure to prosecute. We affirm the
dismissal.
I. BACKGROUND
Díaz-Santos, a teacher employed by the Department of Education
of the Commonwealth of Puerto Rico (DOE), initiated a complaint
with the Equal Employment Opportunity Commission during the 1991-
1992 school year. The gist of her complaint was that she suffered
from a mental disability that prevented her from working directly
with children. The matter concluded with a negotiated settlement
agreement providing certain accommodations under the Americans With
Disabilities Act, (ADA)), 42 U.S.C. § 12101 et seq. Accordingly,
Díaz-Santos was reassigned to the Superintendent’s office.
On August 26, 1999, Díaz-Santos filed a complaint alleging
employment discrimination in violation of the ADA and Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The
complaint named as defendants the DOE and Victor Fajardo, the
Secretary of the DOE, for allegedly reassigning her in violation of
the settlement agreement, subjecting her to a hostile work
environment, and refusing to promote her and/or consider her for
positions for which she was qualified. Díaz-Santos amended her
complaint in February, 2000.
On July 6, 2000, defendants moved to dismiss the amended
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complaint without prejudice. On October 31, the district court
allowed the motion in part, dismissing Díaz-Santos’s claims of
discrimination under Title I of the ADA. The court, however,
permitted the claim of retaliation under Title V of the ADA to
proceed.
On April 4, 2002, defendants sought an interlocutory appeal of
the district court’s decision, which they voluntarily dismissed
several months later. On December 27, 2002, after a number of
pretrial conferences, trial was set for March 17, 2003.
Thereafter, the district court stated in an order dated January 15,
2003, that “[t]his case seems to be a very good candidate for a
sensible settlement disposition. Parties [are] ordered to explore
alternatives and report to the court within 30 days. Case remains
firmly set for trial in March.”
In an order dated March 3, 2003, after setting forth the terms
of a tentative settlement agreement, the court stated:
[S]hould the case not be finally settled on or before
March 21, 2003, then trial will go forward either during
the last week of March or the first week of April . . .
The parties shall be given twenty-four hours notice to
begin trial, and shall be prepared to proceed on that
notice or face dismissal for want of prosecution.
That trial date was reiterated as "firm and final" in subsequent
orders. During the months of March and April of 2003, the district
court continued to conduct settlement conferences.
On April 3, the court again stated in a procedural order that
it was in the parties’ interest to reach settlement. It noted,
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The defendant has been willing to consider reasonable
terms for settlement. However, the plaintiff continues
to have unrealistic expectations about what she may be
entitled to under the law. Plaintiff’s counsel will
consult with his client again and review the possibility
of, as well as the terms of, settlement. He shall notify
the court . . . of the status of settlement by April 18,
2003.
On May 1, Díaz-Santos’s counsel moved to withdraw
representation on the ground that Díaz-Santos “can’t, has not and
will not, in any way help, aid, abet or assist counsel in a
decisive, practicable and sound defense of her best interests.” On
June 22, 2003, the court allowed the motion and permitted Díaz-
Santos until July 23, 2003, to obtain new counsel and have him or
her make an appearance. It set that date as a “final term,” and
threatened that should Díaz-Santos not comply, “the case will be
dismissed.”
On July 23, a “Special Appearance to Request an Extension of
Time to Retain Counsel” was filed on Díaz-Santos’s behalf. It
requested an additional forty-five days for new counsel to evaluate
the case and obtain relevant records from Díaz-Santos’s prior
counsel. No further submissions were filed on behalf of Díaz-
Santos, and the district court took no action until September 29,
2003 – sixty-six days after the initial deadline – when it
dismissed Díaz-Santos’s claims for lack of diligent prosecution.
It stated in its order: “The court has been patient to the extreme
in dealing with this case. For months now, Plaintiff has been
unable or unwilling to resolve this case by settlement and/or
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secure legal representation as previously ordered.” Judgment was
entered that day.
On December 18, 2003, the court denied reconsideration of its
order and judgment, and Díaz-Santos filed a timely appeal.
II. DISCUSSION
A district court's inherent powers to sanction parties for
litigation abuses include the power to act sua sponte to dismiss a
suit for failure to prosecute. Chambers v. NASCO, Inc., 501 U.S.
32, 43 n.8 (1991); Pomales v. Celulares Telefonica, Inc., 342 F.3d
44, 48 (1st Cir. 2003). We review such a dismissal pursuant to an
abuse of discretion standard. Bachier-Ortíz v. Colón-Mendoza, 331
F.3d 193, 194 (1st Cir. 2003). "We do not lightly disturb a
district court's ruling -- but 'dismissal should not be viewed
either as a sanction of first resort or as an automatic penalty for
every failure to abide by a court order.'" Id. at 194-95 (quoting
Young v. Gordon, 330 F.3d 76, 81 (1st Cir. 2003)).
Díaz-Santos claims three points of error: that the district
court abused its discretion in dismissing the case for failure to
prosecute; that it abused its discretion in denying her motion for
reconsideration of that order; and that the court erred by allowing
defendants’ motion to dismiss her claim under Title I of the ADA.
We review each argument in turn.
A. Dismissal for failure to prosecute
First, we address whether the district court erred in
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dismissing Díaz-Santos’s complaint for failure to prosecute. In so
doing, we consider the totality of the circumstances. Bachier-
Ortiz, 331 F.3d at 195. Of particular importance are whether Díaz-
Santos prosecuted her claims diligently until the time when she
parted ways with her counsel; whether the district court provided
Díaz-Santos fair warning of its inclination to employ such a severe
sanction; and whether the delay she caused constituted misconduct
"sufficiently extreme to justify dismissal with prejudice."
Pomales, 342 F.3d at 49.
Díaz-Santos does not fare well under any of these factors.
First, her conduct prior to her original counsel’s withdrawal can
hardly be characterized as diligent. The district court repeatedly
indicated its frustration as to the parties’ lack of preparedness,
their delays as trial approached, and Díaz-Santos’s failure to
settle the case.1 The court noted that Díaz-Santos “continue[d] to
have unrealistic expectations” as to the strength of her case after
several settlement conferences. This observation was confirmed by
Díaz-Santos’s former counsel in its motion to withdraw.
Second, the district court provided unambiguous notice of its
intent to dismiss the case should Díaz-Santos not comply with its
June 22, 2003 order permitting Díaz-Santos one month to obtain new
counsel. Indeed, the court had warned that it would not hesitate
1
We note that defendants appear to have some culpability as
well in dilatory conduct occurring prior to the settlement
conferences.
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to dismiss the case for failure to prosecute as early as March 3,
when it set forth the terms of a tentative settlement agreement.
Third, we see no reason to second-guess the district court’s
determination that Díaz-Santos’s delay constituted sufficient
misconduct to warrant dismissal with prejudice. Initially, the
court’s June 22 order was not heeded, at least not fully: while new
counsel did make an appearance, it was only conditional in nature,
and sought additional time in which to determine whether it would
take on the representation. Then, Díaz-Santos far exceeded
counsel's requested extension without taking action before the
district court finally dismissed her complaint. Under these
conditions, we think the court demonstrated both ample patience and
fairness.
Díaz-Santos argues that her new counsel lacked documents that
were necessary to assess the case and provide adequate
representation. Even assuming that the new counsel was acting in
good faith, there appears to be no viable excuse for allowing
sixty-six additional days to pass in total silence after the filing
of the notice of special appearance. Particularly in light of the
district court’s emphasis of the finality of the July 23 deadline
for obtaining new counsel, it remained Díaz-Santos’s duty to inform
the court of any obstacles and seek an additional continuance if
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one was required.2 Although the remedy of dismissal with prejudice
was, perhaps, somewhat harsh, it did not exceed the district
court's discretion.
B. Motion for reconsideration
We review a district court's denial of a motion for
reconsideration under Fed. R. Civ. P. 59(e) for abuse of
discretion. Rivera v. P. R. Aqueduct & Sewers Auth., 331 F.3d 183,
192 (1st Cir. 2003). Here, Díaz-Santos contends that defendants
were also culpable in the delays and reiterates her argument that
she did not receive important documents until after the July 23
deadline had passed. Although there is some indication in the
record that defendants, too, engaged in foot-dragging, it seems to
be limited to the early part of the litigation. The district
court's order was based, inter alia, on Díaz-Santos's failure to
comply with a deadline for securing new counsel –- conduct that has
no relation to any action of the defendants -- and it is on that
basis that we affirm the district court's judgment.
C. Title I appeal
Lastly, we consider Díaz-Santos’s argument that the court
erred in dismissing her claim under Title I of the ADA based upon
her failure to allege sufficient facts to establish a prima facie
case of disability pursuant to 42 U.S.C. § 12101(2). We do not
2
We do not suggest that had Díaz-Santos moved for additional
time, the district court would have been obliged to allow it.
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reach the merits of this issue, however, because it is beyond the
scope of this appeal.
Normally, a notice of appeal that designates the final
judgment encompasses not only that judgment, but also all earlier
interlocutory orders that merge in the judgment. John's
Insulation, Inc. v. L. Addison & Assocs. Inc., 156 F.3d 101, 105
(1st Cir. 1998)(cases cited therein). In John's Insulation,
however, we joined the majority of other circuit courts in
recognizing an exception to that rule and holding that
interlocutory rulings do not merge into a judgment of dismissal for
failure to prosecute, and thus are unappealable. Id. at 107.
Because we affirm the district court's dismissal for failure
to prosecute, we do not address the dismissal of the Title I claim
further. "[I]f a complaint was correctly dismissed for failure to
prosecute, the fact that earlier interlocutory rulings may have
been erroneous is irrelevant." Id.III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court's
dismissal.
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