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USCA1 Opinion

United States Court of Appeals


United States Court of Appeals
For the First Circuit
For the First Circuit
____________________

No. 94-2024

JAMES BENJAMIN, JR., M.D.,

Plaintiff, Appellant,

v.

THE AROOSTOOK MEDICAL CENTER, INC., ET AL.,

Defendants, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Morton A. Brody, U.S. District Judge]


____________________

____________________

Before

Selya, Circuit Judge,


_____________
Bownes, Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________

____________________

James P. Chandler with whom Chandler & Robertson was on brief


__________________
____________________
appellant.
Christopher D. Nyhan with
______________________

whom Elizabeth J. Wyman and


____________________

Flaherty, Beliveau & Pachios were on brief for appellees.


____________________________

Pre
___

____________________

June 19, 1995


____________________

STAHL, Circuit

Judge.

This appeal

arises from an

STAHL, Circuit Judge.


______________

action brought by Dr. James Benjamin, Jr., and several of his

patients

against

alleging

the

staff

the

racially-motivated

privileges.1

patients'

Aroostook

claims,

The

holding

challenge TAMC's actions.

Medical

termination of

district

that

court

they

and

to respond

dismissal

court's

of the

order

("TAMC"),

Benjamin's

dismissed

lacked

standing

the

to

Subsequently, the court dismissed

Benjamin's claims with prejudice, explaining

counsel had failed to

Center

that Benjamin's

make himself available for proceedings

to notices

from the court.

patients' claims

dismissing

and modify

Benjamin's

operates without prejudice.

I.

claims

We

affirm the

the district

so

that

it

I.
__

Background
Background
__________

On February

12,

1992, Benjamin,

African-American descent, submitted

for

staff

privileges

Benjamin's

granted

licenses

to

TAMC.

application, but

him

to practice

medicine

physician

a completed

TAMC

instead, on

"provisional

did

application

not

October

appointment."

in California,

of

approve

12, 1992,

Benjamin

had

Connecticut,

Minnesota and Maine, and had received a certification in

the

____________________

1.

In addition

to

TAMC, the

named and unnamed TAMC

complaint designates

several

officers, agents, employees and staff

physicians as defendants.

For purposes of this

opinion, we

will refer to all defendants collectively as "TAMC."

-22

"Specialty of

Internal Medicine" from the

Internal Medicine.

American Board of

TAMC, which is located in Presque Isle,

Maine, has approximately forty-five physicians on its medical

staff

and

privileges

of

it

does

not

allow

physicians

without

to treat patients at its facilities.

Benjamin's

appointment,

TAMC

had

no

staff

At the time

African-American

physician on its staff.

On October 11, 1993, TAMC's Medical Staff Executive

Committee

recommended

provisional staff

1994, Benjamin

action pro se
___ __

through

that

privileges.

TAMC

terminate

Subsequently,

and seventeen of his

Benjamin

staff

February

11, 1994,

policies and

privileges

on

the district

on January

7,

patients commenced this

in federal district court

discriminatory

Benjamin's

alleging that TAMC,

practices,

account of

had denied

his

court issued

race.

On

a scheduling

order setting forth discovery deadlines and an expected trial

date

for

August

1994.

The

district court

amended

the

scheduling order twice to extend the time, first for Benjamin

and then for TAMC,

to designate expert witnesses.

On March

4,

for

1994, TAMC filed a motion to dismiss the patients' claims

lack

of standing.

After

Benjamin and

the

patients

responded through newly obtained counsel,

the district court

granted

patients

the

motion,

sufficiently alleged

finding

that

that they had

the

not

suffered any "injury-in-

fact" as a result of the hospital's actions.

-33

had

On

withdraw,

April

citing

29, 1994,

irreconcilable differences

The district court granted

by replacement

Benjamin's counsel

with Benjamin.

the motion, pending an appearance

counsel (or by Benjamin pro


___

1994, Benjamin's counsel renewed

the

sought to

se).
__

On May 31,

the motion to withdraw, and

district court ordered Benjamin to show cause why he had

not obtained

new counsel.

On June

motion to dismiss, arguing that

himself available for a

efforts

8, 1994,

TAMC filed

Benjamin had failed to

make

deposition and had obstructed TAMC's

to complete discovery.

Two days later, TAMC filed a

second motion to dismiss and/or for summary judgment, arguing

that Benjamin's claims

failed on

the merits.

On June

16,

1994, James P. Chandler of Washington, D.C., entered a notice

of appearance on behalf

to enlarge the time

dismiss.

The

of Benjamin and simultaneously moved

to respond to TAMC's pending

district

court granted

motions to

this motion,

giving

Benjamin and his new counsel until July 15, 1994, to respond.

On July 7, 1994,

was

hospitalized in

Chandler became seriously ill and

Washington, D.C.

hospitalization, Chandler had not

nor consulted

1994,

a law

for

enlargement of time on

The

district court

objection

and

Chandler

of his

counsel.

moved for

On

an

July 15,

additional

account of Chandler's sudden illness.

denied

because

the time

responded to TAMC's motion

with Benjamin's former

clerk

At

it

the motion

was

in

improperly

light of

filed

TAMC's

by

an

-44

individual without authority

On

August

2,

enlargement

1994,

of

to practice

Chandler

time, which

the

filed

before the

another

district

court.

motion

court denied

for

by

endorsement.

On

August

17, 1994,

the

district

court held

hearing on TAMC's pending motions to dismiss at which neither

Chandler

nor

Chandler's

neither

responded

Benjamin

appearance

made

to

appeared.

on

himself

Benjamin's

available

notices from

the

for

Noting

that,

behalf,

Chandler had

any

court,

since

proceedings

the district

granted TAMC's motion to dismiss with prejudice.

nor

court

This appeal

followed.

II.
II.
___

Discussion
Discussion
__________

We address two issues on appeal.

patients contest the district

standing

to

assert

their

Benjamin argues that his

First, Benjamin's

court's finding that they lack

claims against

TAMC.

Second,

counsel's sudden and severe illness

should

excuse

his failure

to

make

himself available

and

respond to notices from the court.

A. The Patients' Claims


________________________

At

oral

argument, counsel

for

the

patients and

Benjamin asserted that the patients' standing argument rested

-55

primarily

on 42 U.S.C.

they have

standing

their

minority

1981.2

because TAMC's

1981-protected

physician.

right to

TAMC,

The

patients contend that

actions interfered

contract with

however,

maintains

with

Benjamin, a

that

the

patients themselves have no legally cognizable injury and, at

best, only assert the third-party rights of Benjamin.

careful review,

we conclude

that, on

After

the facts alleged

in

this case, the patients do not have standing.

The burden of alleging facts necessary to establish

standing

falls

upon

the

party

jurisdiction of the federal court.

seeking

to

invoke

the

Warth v. Seldin, 422 U.S.

_____

490,

518 (1975); United States


_____________

114 (1st

Cir. 1992).

We

______

v. AVX Corp.,
_________

review de novo
__ ____

962 F.2d 108,

a district court's

____________________

2.

42 U.S.C.

1981 provides in relevant part:

(a) Statement of equal rights


Statement of equal rights
All persons

within the jurisdiction

of the United States shall have


right in
make

every

and enforce

parties, give
and

State and

equal

property

Territory

contracts, to

evidence, and to
benefit

of

proceedings for the


and

the same

as

sue, be
the full

all

laws

security of
is

enjoyed

to

and

persons
by

white

citizens . . . .

(b) "Make and enforce contracts" defined


"Make and enforce contracts" defined
For
term

purposes

"make

and

of this
enforce

section, the
contracts"

includes

the

making,

modification,

and

contracts,

the

and

benefits,

termination
enjoyment

privileges,

conditions

of

performance,

of

terms

the

of
all
and

contractual

relationship.

-66

standing

determination,

employing

an

approach

that,

in

practice,

differs little from that used to review motions to

dismiss under Fed. R. Civ. P.

at 114.

12(b)(6).

AVX Corp., 962 F.2d


_________

In conducting our review, we are obliged

as true all

to "accept

material allegations of the complaint, and . . .

construe the

complaint in

favor of the

complaining party."

Warth, 422 U.S. at 501; see also Adams v. Watson 10 F.3d 915,
_____
___ ____ _____
______

919 (1st Cir. 1993).

"Standing

is

specific person is

matter to

the Court

both

422

party to

for adjudication."

2.3,

at 48

constitutional

jurisdiction and

Warth,
_____

determination

the proper

Federal Jurisdiction
_____________________

involves

the

U.S.

prudential

at 498;

particular

Erwin Chemerinsky,

(1989).

limitations on

also
____

whether

bring a

limitations on

see
___

of

The

"inquiry

federal-court

its

exercise."

Vote Choice, Inc.


__________________

v.

DiStefano, 4 F.3d 26, 36 (1st Cir. 1993).


_________

limitations

derive from

provides, inter
_____

disputes

Corp.,
_____

this

alia,
____

involving

the

that

only

962 F.2d at 113.

language of

federal

"Cases" or

Article III

courts

shall

that

resolve

"Controversies."

The Supreme

general constitutional

The constitutional

AVX
___

Court has interpreted

proscription

three fundamental requisites of standing

as setting

forth

that every litigant

invoking the jurisdiction of the federal courts must possess:

(1)

injury-in-fact --

an

invasion of

legally-protected

interest that is both concrete and particularized, and actual

-77

or imminent; (2) causation; and (3) redressability.

Defenders of Wildlife, 504


_____________________

v. Welch, No.
_____

Lujan v.
_____

U.S. 555, 560-61 (1992); Libertad


________

94-1699, slip op. at 10-11 (1st

Cir. Apr. 28,

1995).

Several

standing

prudential

determinations.

considerations

These

also

considerations,

infuse

which

militate

against standing,

litigant (1)

asserts

party and not his or

falling

outside

specific law

the

principally concern

the rights

and interests

whether the

of a

her own, (2) presents a claim

zone

of interests

invoked, or (3) advances

third

arguably

protected

by

the

abstract questions of

wide public significance essentially amounting to generalized

grievances more appropriately addressed to the representative

branches.

Libertad, slip op. at 11.


________

prudential factors enables

the federal

Consideration of these

judiciary "to

avoid

deciding questions of broad social import where no individual

rights would be vindicated and to limit access to the federal


___

courts to

claim."

those litigants best suited to assert a particular


____ ______

Gladstone, Realtors v. Village of Bellwood, 441 U.S.


___________________
___________________

91, 99-100 (1979) (emphasis added); see also Conservation Law


___ ____ ________________

Found. of New England v.


______________________

Reilly, 950 F.2d


______

38, 41 (1st Cir.

1991).

For purposes

whether the

of standing,

of this

patients have met

rather we

appeal, we need

the constitutional requisites

believe that, because

-88

not resolve

the patients'

allegedly

infringed-upon

previously

found to

rights fall

be protected

outside what

by

1981,

we have

the patients

essentially assert the third-party rights of Benjamin

than their

own.

satisfied the

Furthermore, because the

minimum requirements

rather

patients have not

for an exception

to the

prudential rule against third-party standing, and because the

reasons

underlying the rule obtain

in this case, we believe

the district court did not err in dismissing their claims.

Whether

opposed

is often

a party

is asserting

its own

rights, as

to seeking to vindicate the rights of a third party,

difficult question.

See generally,
___ _________

Henry

P.

Monaghan, Third Party Standing, 84 Colum. L. Rev. 277 (1984).


____________________

Though

the patients

claim

right to contract with a

we believe

assertion

a direct

infringement of

their

minority physician, at its essence,

their claim is

more accurately

of Benjamin's third-party

described as

an

right to a race-neutral

review process.

Primarily,

rights

fall

the patients'

outside

what

we,

allegedly infringed-upon

and

other

previously found to be protected by 42 U.S.C.

courts,

have

1981.3

Most

____________________

3.

Although

standing in

the merits of the

no way

depends on

plaintiff's contention

that particular conduct is illegal, e.g.,


____
Flast v. Cohen,
_____
_____
it often turns on

392 U.S. 83, 90


the nature and

(1968),
source

of the claim asserted. . . . [T]he source


of

the

plaintiff's

assumes critical

claim

to

relief

importance with respect

to the prudential rules of standing that,

-99

cases

brought

discriminatory

pursuant to

conduct

plaintiff's race.

1981

prompted

by

involve allegations

hostility

of

towards the

See Dartmouth Review v. Dartmouth College,


___ ________________
_________________

889 F.2d

courts

13, 17

have

challenges

(1st

allowed

(1975).

in

which

action

See,
___

601 F.2d

9,

Lear-Siegler, Inc.,
__________________

Cir. 1977); DeMatteis


_________

where

plaintiff

motivated by

animosity

e.g., Des Vergnes


____ ___________

13-14 (1st

v. Eastman Kodak Co.,


__________________

Cir.), modified
________

however,

558 F.2d 1266,

Cir.

v.

1979);

1268-70 (6th

511 F.2d

on other grounds,
__ _____ _______

520 F.2d

306,

409

Such cases have generally been limited to situations

the

plaintiff

was

the

defendant's discriminatory action.

example,

Occasionally,

to proceed

person's race.

Seekonk Water Dist.,


____________________

311-12 (2d

cases

a discriminatory

towards another

Winston v.
_______

Cir. 1989).

a water

district acted

direct

In

target

of

the

Des
Vergnes,
_____________

for

directly against

the non-

minority developer

include

a tract

by

of

refusing the

land proposed

housing in the water district.

12.

Consequently, we

developer's request

for low-income

from

Art.

requirements,

III's

Essentially,

minimum

serve to limit the role of

the courts in resolving


the

public disputes.

standing

question

in

such cases, is whether the constitutional


or statutory provision on which the claim
rests

properly

granting

can

person

be
in

understood
the

-1010

as

plaintiff's

position a right to judicial relief.

Warth, 422 U.S. at 500.


_____

11-

non-minority developer

____________________

apart

minority

Des Vergnes, 601 F.2d at


___________

held that the

to

had standing under

1981 even

discriminatory

towards

the race of the prospective tenants and not the race

involve a

Id. at
___

discriminatory

14.

was

Other

motivated

district's

alleged

of the developer.

action

though the water

by animosity

cases most

employment action

(e.g.,
____

typically

firing)

taken by an employer directly against a non-minority employee

because of that employee's

association with, or advocacy of,

minorities.

F.2d 111,

See, e.g., Alizadeh v. Safeway Stores, Inc., 802


___ ____ ________
____________________

114 (5th Cir. 1986) (white plaintiff fired because

married to minority spouse); Winston, 558 F.2d at 1270 (white


_______

employee fired for advocating rights of minority); cf. Phelps


___ ______

v. Wichita Eagle-Beacon, 886


_____________________

1989)

(white

lawyer

newspaper that

had

F.2d 1262, 1266-67

standing

under

(10th Cir.

1981

published allegedly false articles

to

sue

about him

because he represented minorities).

Here, the

patients

challenge an

action

by

TAMC

neither motivated by animosity towards the patients' race nor

specifically

patients.

derivative

targeted

at, or

The patients'

effect of

taken

directly against,

alleged injury

TAMC's administration

arises only

of its

the

as a

general

policies governing

privileges.

Cf.
___

715, 720 (1990)

the grant

Department of Labor
___________________

a litigant
________

U.S.

"enforcement of a

prevents a third

a relationship with the

-1111

physician staff

v. Triplett, 494
________

(standing may exist where

restriction against

entering into

and review of

party from

litigant (typically a

contractual

relationship), to

which the

third party

has a

legal entitlement") (emphasis added); see generally Monaghan,


___ _________

84

Colum.

between

L. Rev.

direct

interact as a

case

is

and

at

306-11

indirect

(discussing the

interference

limit on standing).

TAMC's

alleged

with

distinction

right

to

The direct injury in this

discriminatory

revocation

of

Benjamin's staff privileges, which TAMC directed specifically

at Benjamin on account of Benjamin's race.

Furthermore, the patients do not allege that TAMC's

action

completely precluded

them from

receiving treatment.

TAMC has other physicians on staff who practice in Benjamin's

specialty,

and the

patients

do not

allege

that TAMC

has

refused to admit them as patients.

fact

that

Benjamin

completely disrupt the

TAMC's revocation

preclude

him

facilities.

occurs,

if at

of

cannot

Finally, neither does the

treat

the

patients

at

TAMC

patients' relationship with Benjamin:

Benjamin's staff

from treating

the

Accordingly,

because

all, only

as a

privileges does

patients

the

outside of

patients'

derivative effect

not

TAMC

injury

of TAMC's

action against Benjamin, we hold that, in attempting to bring

their

claims under

third-party

rights,

1981, they

and

Nationwide Ins. Co., 724


____________________

not

their

F.2d 419,

(insurance

agent challenging

asserting

third-party rights

are asserting

own.

See
___

421-22 (4th

insurer's redlining

of homeowners);

Benjamin's

Mackey v.
______

Cir. 1984)

policy is

Capital Nat'l
_____________

-1212

Bank of N.Y. v.
______________

(S.D.N.Y.

asserts

McDonald's Corp.,
________________

1986) (non-minority lender

only third-party

rights

challenge to franchisor's alleged

of franchisee's contract).

625

F. Supp.

874, 882

to minority franchisee

of minority

franchisee in

discriminatory termination

While

the

general

standing is not absolute,

proscription

on

third-party

Powers v. Ohio, 499 U.S.


______
____

400, 410

(1991); Warth, 422 U.S. at 500-01, no exception to the ban is


_____

applicable in this case.

that

party

In Powers, the Supreme Court stated


______

an individual seeking to

must,

criteria:

as

assert the rights

prerequisite,

"The litigant

must

satisfy

have suffered

of a third

three

specific

an 'injury

in

fact,' . . . ; the litigant must have a close relationship to

the third party; and

third

there must exist some hindrance


____ _____ ____ _________

party's ability to protect his

to the

or her own interests."

Powers, 499 U.S. at 411 (citations omitted) (emphasis added);


______

see
___

also Playboy Enters. v. Public Serv. Comm'n of P.R., 906


____ _______________
___________________________

F.2d 25, 37-39 (1st Cir.), cert. denied, 498 U.S. 959 (1990).
_____ ______

Assuming arguendo that


________

the

first two criteria,

third.

the patients could

they clearly fail

No hindrance exists

in this case

to establish the

that prevents the

third

party, Benjamin,

order

to satisfy this criterion, a party must show that some

barrier

or

practical

unidentifiable,

lacks

from asserting his

satisfy

obstacle

(e.g.,
____

sufficient interest,

-1313

own rights.

third

or

party

In

is

will suffer

some

sanction)

asserting

prevents

his or her own

U.S. at 414-15 (lack

or

deters the

interest.

See,
___

third

party

from

e.g., Powers, 499


____ ______

of economic incentive); Clifton Terrace


_______________

Assocs. v. United Technologies Corp., 929 F.2d 714, 721 (D.C.


_______
_________________________

Cir. 1991)

(no barriers

because, inter alia,


_____ ____

third parties

are plainly identifiable); Playboy Enters., 906 F.2d at 37-38


_______________

(threat of

clearly

official sanction)

identified

and

has

Here,

the injured party

sufficient

interest

in

is

the

litigation (e.g., professional reputation) to pursue (and, in


____

fact,

has pursued)

the action.

Accordingly,

the patients

have not met the minimum requisites for third-party standing.

Furthermore,

the

our holding,

that Benjamin,

patients, is the proper party to bring an action against

TAMC,

is

consistent

with

the

policies

underlying

prudential rule against third-party standing.

v.

and not

Wulff, 428 U.S. 106,


_____

third-party

standing may

justifications are

the

See Singleton
___ _________

114 (1976) (general proscription on

be

absent").

avoided where

Indeed, one of

the "underlying

the principal

justifications for the rule is that it assures that the party

bringing the litigation will

of the rights at

issue."

be the "most effective advocate

Duke Power Co.

v. Carolina Envtl.

______________

_______________

Study Group, Inc., 438 U.S. 59, 80 (1978); see also Secretary
_________________
___ ____ _________

of State
________

(rule

v. Joseph H. Munson Co., 467 U.S.


_____________________

against third-party

essential

to

litigation

947, 955 (1984)

standing

guarantees that

will

"concrete

-1414

be

and

issues

sharply

presented").

largely on

Here,

because the

merits of

an evaluation of Benjamin's

the action

turn

performance at TAMC,

he, and not the patients, is clearly the best party to assert

the claim.

TAMC's

Not only would Benjamin

assertion

of

addition,

he would

specific

instances

suggest a

clear

professional

likely

of

discriminatory

that the patients,

particulars

of

be far

be best able to contest

incompetence,

more

able to

conduct attributable

motive.

to

Indeed, it

who would not be

Benjamin's relationship

but,

in

point

to

TAMC

that

is far

from

privy to all the

with

the hospital,

could effectively proceed without Benjamin's participation.

To

outside what

summarize, because

the

patients' claims

we, and other courts, have

fall

previously found to

be

protected by

third-party

1981,

rights

of

Furthermore, because

requisites

for

we believe the

Benjamin

the patients

third-party

patients assert the

and

not

their

have not met

standing,

we

own.

the minimum

hold

that

the

district court did not err in dismissing their claims.

B. Benjamin's Claims
_____________________

Benjamin contends that the

district court erred in

granting TAMC's

motion to dismiss with

maintains

the

that

essentially

action

because

by not

appearing

at

district

his

responding

the

August

court

counsel

granted

failed

to TAMC's

17

prejudice.

motion

to prosecute

motion

hearing.

the

Benjamin

to dismiss

Benjamin

the

or

argues,

-1515

however, that these

failures are excusable

in light of

his

attorney's sudden and serious illness.

We treat

pursuant

the district court's

to Rule 41(b).4

____________________

We

review

dismissal as issued

dismissals under Rule

4.

Fed R. Civ. P. 41(b) provides in relevant part:

For failure of the plaintiff to prosecute


or

to comply

with

order of court, a
dismissal

these rules

of an

action or of

the defendant.

in

order

specifies,

for

dismissal

dismissal

provided for

in this rule,

improper
party

lack of

otherwise

under

and

for

any

any claim

Unless the court

subdivision

dismissal

any

defendant may move for

against
its

or

this

dismissal

not

other than a

jurisdiction for

venue, or for failure to join a

under

Rule

19,

operates

as

an

adjudication upon the merits.

TAMC

contends that

Benjamin's claims pursuant


41(b).

the

to Local Rule 19(c)

Local Rule 19(c) provides

timely written

response to a

objections to that motion.

district court

dismissed

and not Rule

that the failure to file a

pending motion will

waive any

U.S. Dist. Ct. Me. Gen. R. 19(c).

Our reading of the district court's order, however,


convinces us
district
dismissal
that the
to

that it was acting pursuant to Rule 41(b).

The

court did not cite Local Rule 19(c) in ordering the


of the case.

Neither did the district court state

dismissal was compelled because

respond constituted

waiver of

any

Benjamin's failure
objection to

the

motion.

Instead, the district court

plaintiff,

through

available

for any

counsel,

since the

responded to

notices from

plaintiff's

apparent that

the court's

appear

this

Benjamin

at the hearing or

counsel) of

make

himself

the appearance

the Court, defendant's

actions

We think

at

to

of Mr.

plaintiff, through counsel,

prejudice."

displeasure

failed

proceedings since

Chandler and

Dismiss

has

reasoned, "Because the

their expected

is
rather

hereby

has not
Motion to

GRANTED
_______

terse statement

motivation stemmed more


and Chandler's
to notify the

failure

from its
either to

Benjamin and

Chandler's (arguably) excusable failure to respond to

-1616

makes

court (and opposing

absence, than just

motion to dismiss.

with

TAMC's

41(b) for abuse of discretion.

283, 284

Inc.
____

(1st

Cir. 1993);

Claims

typically

Damiani
_______

of

have "not

abuse

848 F.2d

Id.
___

a sympathetic

(1st Cir.

Rule

ear from

41(b)

us."

12, 17

(1st Cir.

At the same time, this

"does not

rubber-stamped the

704 F.2d

decisions of

the district

Dismissal with prejudice "is a harsh sanction,"

Richman v. General Motors Corp., 437


_______
____________________

1971),

315, 317

discretion under

v. Rhode Island Hosp.,


___________________

we have

court."

of

received

1983) (collecting cases).

mean

Enlace Mercantil Internacional,


________________________________

v. Senior Indus., Inc.,


____________________

1988).

Capo v. United States, 7 F.3d


____
_____________

F.2d 196, 199 (1st Cir.

which runs counter to our "strong policy favoring the

disposition

of cases

Gonzalez Rivera, 553


________________

result,

we have

employed only when

egregious

on the

merits."

F.2d 710, 712

indicated

that such

Zavala Santiago
_______________

(1st Cir. 1977).

an

option should

a plaintiff's misconduct is

or extreme.

See,
___

Cir. 1993); see also Cosme


___ ____ _____

the cases in

which we

have upheld a

prosecution,

we

found

ignorance

aggravating

of

either

dismissal for want

extremely

in years), disobedience of

warnings, contumacious

circumstance").

be

particularly

Nieves v. Deschler, 826 F.2d 1, 2 (1st Cir. 1987) ("[i]n


______
________

inaction (measured

As a

e.g., Estate of Solis-Rivera v.


____ ______________________

United States, 993 F.2d 1, 2 (1st


_____________

have

v.

In

all

of

protracted

court orders,

conduct or

some other

reviewing the trial court's

actions, we engage in

appropriate

an "open-ended balancing test," giving

consideration to all relevant factors.

Figueroa
________

-1717

Ruiz
____

v. Algria, 896 F.2d 645,


______

648 (1st Cir. 1990); see also


___ ____

HMG Property Investors, Inc.


______________________________

v. Parque Indus. Rio Canas,


__________________________

Inc., 847 F.2d 908, 917 n.13 (1st Cir. 1988).


____

If the district court's order ensued solely because

Attorney

Chandler's

responding to

would

have

illness

prevented

TAMC's motion to dismiss,

significantly

suggested that,

time, a

sudden

in

more

deciding a

him

from

Benjamin's argument

bite.

Indeed,

motion for

we

an extension

have

of

district court's failure to allow for factors beyond

a party's control, such as the unexpected illness of counsel,

may,

in a certain

case, constitute an

abuse of discretion.

See Maldonado-Denis v. Castillo-Rodriguez,


___ _______________
__________________

(1st

23 F.3d 576,

584

Cir. 1994) (finding no abuse of discretion in denial of

motion for enlargement of time

not advert

where, inter alia, party does


_____ ____

to "circumstances beyond a

party's control, such

as

an attorney's

illness"); cf.
___

Smith-Weik Mach. Corp. v.


_______________________

Murdock Mach. & Eng'g Co., 423 F.2d 842, 844 (5th Cir. 1970).
_________________________

In this case, however, other factors obtain, most importantly

Chandler's failure to appear

notify the

court

expected absence.

(4th Cir.

to

Rule

judgment

Chandler's

at the August 17 hearing

and opposing

See
___

counsel

Simpson v. Welch, 900 F.2d


_______
_____

1990) (no abuse of discretion

41(b) where

counsel

did

appear occurred

-1818

of

his

33, 34-35

to dismiss pursuant

not respond

motion or appear at hearing

failure to

in advance

or to

to

summary

on motion).

Moreover,

after the

court had

already

extended

the time

dismiss upon Chandler's late

to respond

to TAMC's

motion to

appearance in the case.

Cf. 9
___

Charles A.

Wright & Arthur

R. Miller, Federal Practice and


_____________________

Procedure
_________

2352, at 402 (2d ed. 1995) (prior delays relevant

in evaluating denial of continuance).

On

the other

notify the district

hand, though

Chandler's failure

to

court and opposing counsel that he would

not be present at the August 17 hearing cannot be overlooked,

we believe that, when viewed in context, the egregiousness of

his

conduct

dispute

becomes

that Chandler,

seriously ill.

court

through

somewhat

who lives

Indeed,

and opposing

mitigated.

TAMC

in Washington,

Chandler had apprised

counsel of the

does

severity of

not

D.C., was

the district

his illness

two motions for enlargement of time filed on July 15

and August 2.

prognosis of

[Chandler]

The August 2 motion expressly states that "The

[Chandler's]

primary care

physician

is

that

will not be able to resume his court duties until

after mid-August."

Thus, we think that Chandler provided the

court and TAMC at least some notice that he might not be able

to

attend the

August 17

hearing.

Moreover,

the district

court

scheduled the date of the August 17 hearing only after

Chandler

filed the

Finally,

the

second motion

litigation,

at

for enlargement

the

dismissal, was less than one year old.

-1919

time

of

the

of time.

court's

We sympathize with the district court's frustration

in

the face

of counsel's

appreciate the

Furthermore,

sanctions,

we

dismissal

[with

Velazquez-Rivera v.
________________

1079

(1st Cir.

court's

use

prejudice was

we

believe that,

of

the

While

the district court to

Wright & Miller,

this

ultimate sanction

a step too far.

use of

stiff

where

Sea-Land Serv., Inc., 920


____________________

1990).

in

the

prejudice],

Chandler's failure to appear or to notify

punishment,

we fully

control its docket.

"wholeheartedly endorse

including

1072,

appear, and

district court's need to

appropriate."

F.2d

failure to

we agree

that

the court warrants

case, the

of

district

dismissal

with

Hence, we modify the order of

a dismissal without prejudice.

Federal Practice and Procedure


_______________________________

See 9
___

2373,

at

402

("The

prejudice

decision

of

the trial

may be reviewed on appeal

court

to

dismiss

with

and the appellate court

may order the dismissal to be without prejudice.").

III.
III.
____

Conclusion
Conclusion
__________

For the

foregoing reasons, we affirm the dismissal

of the patients' claims and modify the district court's order

dismissing Benjamin's claims to operate without prejudice.

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