Corujo v. Eurobank , 299 F. App'x 1 ( 2008 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 07-2620
LUIS M. CORUJO, ET AL.,
Plaintiffs, Appellees,
v.
EUROBANK, SUCCESSOR IN INTEREST TO THE
BANK & TRUST OF PUERTO RICO,
Defendant, Appellant,
____________________
SIRO PÉREZ-OLIVA, ET AL.,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., U.S. District Judge]
Before
Boudin, Lipez and Howard,
Circuit Judges.
José F. Sarraga, Eugene F. Hestres-Vélez and Bird Bird &
Hestres, P.S.C., on brief for appellant.
Rubén T. Nigaglioni, Veronica Ferraiuoli and Antonio
Valiente, Nigaglioni & Ferraiuoli Law Offices, P.S.C., on brief
for appellees.
Harvey Weiner, Jill M. Brannelly and Peabody & Arnold, LLP,
on brief amici curiae for Calvesbert Law Offices.
November 17, 2008
Per Curiam. Defendant, Eurobank, appeals from the
district court's dismissal, without prejudice, of plaintiffs'
complaint for lack of prosecution. The dismissal was based on
plaintiffs' failure to file a memorandum prior to the initial
scheduling conference, as required by the district court's initial
scheduling conference order. On appeal, Eurobank understandably
does not object to the dismissal per se but argues that it should
have been with prejudice, as it had unsuccessfully argued in a
motion to amend the judgment. A side issue, which turns out to be
irrelevant, is whether the district court had subject matter
jurisdiction. For the reasons discussed below--essentially, that
the district court did not abuse its discretion in dismissing this
case without, rather than with, prejudice--we summarily affirm.
Although Eurobank alleged lack of subject matter
jurisdiction in its answer to the complaint, it made no motion to
dismiss the case on that ground, and the district court had no
occasion to consider the issue before it dismissed the case at the
initial scheduling conference. Regardless of whether the district
court lacked subject matter jurisdiction over plaintiffs' claims,
in the absence of a judicial determination that such jurisdiction
was lacking, the court had the power to "requir[e] those practicing
before [it] to conduct themselves in compliance with the applicable
procedural rules in the interim, and to . . . impose . . .
sanctions in the event of their failure to do so," Willy v.
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Coastal Corp., 503 U.S. 131, 139 (1992), at least where, as here,
the sanction "'does not signify a district court's assessment of
the legal merits of the complaint.'" Id. (quoting Cooter & Gell v.
Hartmarx Corp., 496 U.S. 384, 396 (1992)).
Therefore, without resolving the question of subject
matter jurisdiction, we turn to the issue of whether dismissing the
case without, rather than with, prejudice was an abuse of
discretion and conclude that it was not. Our resolution of that
issue results largely from the highly deferential standard of
appellate review that applies. "Since the district court has
first-line authority for case-management decisions and is
intimately familiar with the ebb and flow of the cases on its
docket, an appellate court should 'step softly' when asked to set
aside a district court's choice of sanctions for the violation of
a case-management order." Torres v. Puerto Rico, 485 F.3d 5, 10
(1st Cir. 2007). Even if it would have been within the court's
discretion to dismiss the case with prejudice--a doubtful
proposition, given "no pattern of the plaintiffs repeatedly
flouting court orders,"1 Benitez-Garcia v. Gonzalez-Vega, 468 F.3d
1The only instance of noncompliance identified by the district
court was plaintiffs' failure to file a memorandum prior to the
initial scheduling conference, as required by the court's initial
scheduling conference order. Because there is no transcript of the
scheduling conference in the record, and the appellant has not used
the procedures of Rule 10(c) of the Federal Rules of Appellate
Procedure to create a record of that proceeding, we will disregard
the various unsupported representations of the parties and the
amicus as to precisely what transpired there. Bogan v. City of
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1, 5 (1st Cir. 2006); see also Link v. Wabash R.R. Co., 370 U.S.
626, 64 (1962) ("[declining to] decide whether unexplained absence
from a pretrial conference would alone justify a dismissal with
prejudice if the record showed no other evidence of dilatoriness on
the part of the plaintiff")--that would not mean that dismissing it
without prejudice was outside the court's discretion to choose a
less severe sanction. Cf. Benitez-Garcia, 468 F.3d at 6 (faulting
district court for failing to "consider[] whether a sanction as
severe as dismissal with prejudice was needed or whether other
sanctions might well have sufficed").
Consequently, we summarily affirm the district court's
judgment and its denial of the motion to amend. 1st Cir. R.
27.0(c). The motion of amici curiae for leave to participate in
oral argument is denied as moot.
Boston, 489 F.3d 417, 424 (1st Cir. 2007).
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