LYNCH, Circuit Judge.
By order dated November 16, 2005, the district court dismissed plaintiffs' civil rights action as a sanction for violations of three deadlines set in an oral Initial Scheduling Conference (ISC) discovery order. The order of dismissal was entered despite the fact that under the district court's local rules, plaintiffs had at least until November 18, 2005 to respond to the defendants' motion requesting this drastic sanction. The court then did not accept plaintiffs' motion for reconsideration in this very active case, as it denied plaintiffs permission to file a motion that exceeded the page limit in the local rules. As best one can tell, the court never considered plaintiffs' explanation for their failure to meet the ISC deadlines. On these and other facts presented, we reverse.
On September 13, 2004, plaintiffs filed an action against the Commonwealth of Puerto Rico, its Department of Education, a particular high school teacher, and various officials and other parties, alleging that plaintiffs had been victims of gender discrimination, sexual harassment, and quid pro quo exchange of higher grades for sexual favors. In the early months of the litigation, the district court granted a number of extensions to various defendants to file their answers, and then allowed supplemental answers asserting new defenses as late as July 19, 2005. Even so, two of the defendants did not timely file
The case proceeded to discovery. By order dated March 18, 2005, the district court notified the parties that they should prepare for the ISC. The order informed the parties that all orders issued during the ISC would be effective immediately, even if the ISC order were not formally entered until a later date. The March 18, 2005 order also notified the parties that failure to comply with that order would "result in stiff penalties, including but not limited to the entry of default, the dismissal of one or more claims or defenses, barring of witnesses or evidence, or monetary sanctions."
The ISC order was not formally entered until August 24, 2005, though it was apparently orally communicated to the parties at the ISC on June 16, 2005. The written ISC order also provided that non-compliance might "result in the imposition of sanctions . . . includ[ing] the imposition of a fine, or the elimination of any of the allegations of the complaint, the answer, or any pleading." In the middle of discovery, on November 3, 2005, two of the defendants filed a motion requesting that plaintiffs' case be dismissed with prejudice as a sanction for plaintiffs' failure to comply with the ISC order.
The court order dismissing the case, signed by the district judge on November 16, 2005, was entered before plaintiffs had filed a response to the defendants' motion. The district court stated it was dismissing the action with prejudice because plaintiffs had failed to meet three of four discovery deadlines in July and August of 2005. The three deadlines, listed under the heading "Preliminary Orders" in the ISC order, were: (1) that plaintiffs were to provide, by July 8, 2005, either the name of the person in charge of a previous investigation against the teacher co-defendant or copies of complaints previously filed against that co-defendant; (2) that plaintiffs' expert was to tender his report by July 26, 2005; and (3) that plaintiffs were to provide their medical records and Health Insurance Portability and Accountability Act (HIPAA) consent forms by August 17, 2005.
The district court, citing Damiani v. Rhode Island Hospital, 704 F.2d 12, 17 (1st Cir.1983), found that this was "a case of extreme misconduct that warrants the sanction of dismissal with prejudice" because the plaintiffs had: (1) violated discovery orders; (2) failed to seek consent; and (3) failed to seek approval for non-compliance based on a truly valid reason. The court did not order plaintiffs to show cause, and it noted that plaintiffs had not opposed the motion. The court order was entered on November 17, 2005—one day after the date it was signed by the district judge.
Plaintiffs filed a motion for reconsideration on November 28, 2005. Because the motion exceeded 25 pages in length, the limit set by the local rules, it was accompanied by a motion for leave to file an over-length
At the time the court dismissed the case for plaintiffs' failure to comply with the ISC deadlines there was a pending motion from the plaintiffs to amend the ISC order. This motion was filed on October 9, 2005 and was raised again in a filing on November 3, 2005. There was also activity by a previously defaulted defendant seeking to enter the case. And throughout discovery the plaintiffs had filed numerous motions to compel defendants to comply with discovery, arguing that the defendants were stalling and foot-dragging. At least some of plaintiffs' allegations apparently had merit: on August 9, 2005 the court granted the plaintiffs' motion to compel defendants to produce certain documents, and it also partially granted plaintiffs' motion to quash several of the deposition notices on the grounds that the defendants had not provided notice to all parties.
A district court may dismiss an action for noncompliance with a discovery order. Fed.R.Civ.P. 37(b)(2)(C).
The sanction imposed here was dismissal with prejudice, the harshest sanction, other than contempt, which may be visited on a party. It has been used where the plaintiff has failed to prosecute his case. See Link v. Wabash R.R. Co., 370 U.S. 626, 629, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); see also Pomales v. Celulares Telefonica, Inc., 342 F.3d 44, 48-49 (1st Cir. 2003) (reversing a dismissal with prejudice for lack of prosecution); Ortiz-Anglada v. Ortiz-Perez, 183 F.3d 65, 66-67 (1st Cir. 1999) (same). In that context, the sanction is reserved for cases of "extremely protracted inaction (measured in years), disobedience of court orders, ignorance of warnings, contumacious conduct, or some other aggravating circumstance." Cosme Nieves v. Deshler, 826 F.2d 1, 2 (1st Cir. 1987). This case does not involve a failure to prosecute. Indeed, the plaintiffs zealously prosecuted the action. The docket sheet shows over 100 entries at the time of entry of dismissal.
Still, zealous prosecution is no shield against sanctions for violations of court discovery orders. Dismissal with prejudice for violation of such orders is well within the arsenal of the trial judge. See Tower Ventures, Inc. v. City of Westfield, 296 F.3d 43, 46 (1st Cir.2002) (noting that disobedience of a court order can constitute extreme misconduct warranting dismissal); Robson v. Hallenbeck, 81 F.3d 1, 4 (1st Cir.1996) (explaining that successive violations of court scheduling orders can justify dismissal with prejudice, and admonishing parties who "treat scheduling orders as optional and [who] conduct trial preparations at their own convenience");
Where dismissal with prejudice is involved, it has long been our rule that a case should not be dismissed with prejudice except "when a plaintiff's misconduct is particularly egregious or extreme." Benjamin v. Aroostook Med. Ctr., Inc., 57 F.3d 101, 107 (1st Cir.1995); see also Tower Ventures, 296 F.3d at 46 (explaining that not "every breach of a scheduling order warrants" dismissal with prejudice, and noting that we will not "rubber-stamp the use of dismissal as a sanction"). In addition, "fairness requires that some limits be placed on [the] use" of a sanction of this severity. Velazquez-Rivera v. Sea-Land Serv., Inc., 920 F.2d 1072, 1075-76 (1st Cir.1990). These fairness concerns encompass both the law's preference that cases be disposed of on the merits, see Pomales, 342 F.3d at 48, and procedural aspects such as notice and an opportunity to be heard, see Ortiz-Anglada, 183 F.3d at 67. Thus, our inquiry is into both the substance of the court's order and the procedure by which the sanction was imposed.
Our inquiry into sanctions orders is not a mechanical one, and our cases set forth a variety of important considerations:
Robson, 81 F.3d at 2-3.
We look at the substance first. There is no pattern of the plaintiffs repeatedly flouting court orders. Cf., e.g., Crossman v. Raytheon Long Term Disability Plan, 316 F.3d 36, 39 & n. 2 (1st Cir.2002) (noting the importance generally of finding a pattern or series of disobedience and reversing an order of dismissal where all of the alleged infractions stemmed from noncompliance with a single order). Defendants do not cite to us, and we have been unable to find, a case from this circuit sustaining a dismissal with prejudice imposed solely for a single allegation of noncompliance with a single (albeit multi-part) discovery order—at least where that noncompliance was never brought to the plaintiffs' attention by the court prior to dismissing the case. Robson comes closest, but it involved the more serious violations of a variety of pre-trial deadlines on the eve of trial, which were brought to the court's attention on the morning of trial itself. See Robson, 81 F.3d at 2. Context makes those much more serious infractions than what is involved here. Also, in Robson we vacated the dismissal; the district court had not considered the validity of several proffered excuses and thus there was an insufficient basis to uphold the dismissal on appeal. See id. at 2-5.
At the time the defendants brought the motion for sanctions, the three deadlines had been violated by approximately four months, three months, and two and a half months, respectively. In Ortiz-Anglada, a delay of seven months was insufficient to warrant dismissal with prejudice. 183 F.3d at 66-67. In Pomales, a four-month delay "did not alone constitute misconduct sufficiently extreme to justify dismissal with prejudice." 342 F.3d at 49. The plaintiffs' delay here, albeit one that came without seeking prior consent, is not a case of extreme misconduct warranting dismissal—particularly in light of the pending motions
Moreover, the district court does not appear to have considered whether a sanction as severe as dismissal with prejudice was needed or whether other sanctions might well have sufficed. Cf. Crossman, 316 F.3d at 39-40 (finding that the district court's failure to consider the adequacy of lesser sanctions contributed to a finding of abuse of discretion); cf. also Asociacion de Empleados Del Instituto De Cultura Puertorriquena v. Rodriguez-Morales, 538 F.2d 915, 917 (1st Cir.1976).
Nor is it clear that the defendants suffered much, if any, prejudice from plaintiffs' delay; while defendants suggest that the documents not produced were "pertinent to the key issues of liability and damages," they have not explained how the delay has affected their ability to litigate these issues in the context of the broader schedule for the case. In their motion for sanctions, defendants made no allegations that they ever even requested the missing information from plaintiffs in the time between the deadline dates and the filing of their motion. Indeed, at the time the defendants moved for sanctions it was still nearly eight months before the trial date, and more than four and a half months before the court's deadline to submit dispositive motions. Cf. Figueroa Ruiz v. Alegria, 896 F.2d 645, 649 (1st Cir.1990) (noting that there was little prejudice from plaintiffs' delay when defendants' tactical position was unaffected).
Turning to procedure, we think that the district court simply could not have weighed all of the appropriate factors here given the alacrity with which it dismissed the action. The district court noted that defendants' motion for sanctions went unopposed and that, as a result, the plaintiffs had not demonstrated good cause for their noncompliance. But under the district court's local rules the plaintiffs had at least until November 18, 2005 to file their objection.
"Ordinarily, the plaintiff is given an opportunity to explain [his noncompliance] or argue for a lesser penalty. . . ." Robson, 81 F.3d at 3.
The order entering the dismissal with prejudice was an abuse of discretion and is reversed.
The judgment of the district court is reversed and the case is remanded for further proceedings consistent with this opinion.