Alvarez-Silva v. Rudman

Court of Appeals for the First Circuit·Decided March 31, 1994·No. 93-1859·Published

Opinion

USCA1 Opinion

March 31, 1994 [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________

No. 93-1859

FERMIN ALVAREZ-SILVA,

Plaintiff, Appellant,

v.

ISAAC RUDMAN,

Defendant, Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
___________________

____________________

Before

Breyer, Chief Judge,
___________
Selya and Boudin, Circuit Judges.
______________

____________________

Jose R. Franco Rivera on brief for appellant.
_____________________

____________________

____________________

Per Curiam. Plaintiff/appellant Fermin Alvarez
___________

Silva appeals from a July 16, 1993 district court order

denying his second motion for reconsideration following the

court's sua sponte dismissal of his case for lack of
___ ______

prosecution pursuant to Fed. R. Civ. P. 41(b). For the

reasons stated below, we affirm.

I.

On August 6, 1991, plaintiff, a resident of Puerto

Rico, filed a complaint alleging a claim for injurious

falsehood against defendant Isaac Rudman, a resident of the

Dominican Republic. On June 29, 1992, the district court

issued an order to show cause why the case should not be

dismissed for lack of prosecution. In the order, the

district court stated that "almost eleven months have elapsed

since the complaint was filed; but plaintiff has not yet

served the defendant." Plaintiff responded by filing a

motion requesting until July 31, 1992 to effect service of

process. Plaintiff stated in the motion that if he did not

serve the defendant by the end of July, he would move for

voluntary dismissal of the case.

The additional requested time lapsed without

service of process.1 Thereafter, instead of moving for

____________________

1. Plaintiff explains his failure to complete service of
process during the first year by stating that his process
server went to Santa Domingo, Dominican Republic on two
occasions to attempt personal service. Plaintiff also
states: "In several other occasions [sic], plaintiff

-2-

voluntary dismissal, defendant requested authorization to

serve process by publication. On October 9, 1992, the

district court issued a second order to show cause why the

case should not be dismissed for lack of prosecution. In

response, plaintiff brought to the court's attention his

pending motion to serve process by publication, and the court

allowed this motion. On November 18, 1992, the court issued

a summons by edict. Over two months later, on January 29,

1993, the edict was finally published in a Puerto Rican

newspaper.2 Following publication, plaintiff sent a copy of

the complaint and edict by certified mail to the defendant

and received a signed, return receipt dated April 12, 1993.

On May 7, 1993, plaintiff moved for entry of default. On May

10, 1993, the district court dismissed the case for lack of

prosecution pursuant to Fed. R. Civ. P. 41(b). The same day,

the clerk entered default against the defendant.

On May 18, 1993, plaintiff filed a motion for

reconsideration of the dismissal order. After judgment on

the dismissal order was entered on the docket on May 21,

____________________

followed rumors that the defendant would fly into Puerto Rico
in other non-related matters. Such rumors proved unfounded."

2. According to the plaintiff, the delay in publication was
caused by the failure of the clerk's office to mail him the
edict. Plaintiff alleges that although he submitted a form
edict to the clerk's office on or about October 31, 1992, he
did not learn that the edict had been issued until the first
week in January 1993 when he instructed his secretary to call
the clerk's office.

-3-

1993, plaintiff renewed his motion for reconsideration on

June 1, 1993. The district court entered an order denying

the motion for reconsideration on June 24, 1993. On July 2,

1993, plaintiff filed a second motion for reconsideration.

This motion was denied by order entered on July 20, 1993 when

the court "[f]or the third and final time" reiterated its

dismissal order. Plaintiff filed his notice of appeal on

July 29, 1993.

II.

Dismissal for failure to prosecute is a significant

sanction but where a plaintiff is truly dilatory, the choice

of sanction is a matter within the discretion of the district

court and is reviewed under an abuse of discretion standard.

In this realm, claims of "abuse of discretion typically `have

not received a sympathetic ear from us.'" Figueroa Ruiz v.
______________

Alegria, 896 F.2d 645, 647 (1st Cir. 1990) (quoting Damiani
_______ _______

v. Rhode Island Hospital, 704 F.2d 12, 17 (1st Cir. 1988)).
_____________________

Almost two years elapsed from the time the

complaint was filed to the point when the case was dismissed.

During that time, plaintiff had done nothing except effect

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USCA1 Opinion



March 31, 1994          [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

No. 93-1859 

                                FERMIN ALVAREZ-SILVA,

                                Plaintiff, Appellant,

                                          v.

                                    ISAAC RUDMAN,

                                 Defendant, Appellee.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
                                               ___________________

                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                          Selya and Boudin, Circuit Judges.
                                            ______________

                                 ____________________

            Jose R. Franco Rivera on brief for appellant.
            _____________________

____________________

____________________

Per  Curiam.    Plaintiff/appellant Fermin  Alvarez
                      ___________

            Silva appeals  from  a July  16,  1993 district  court  order

            denying his  second motion for  reconsideration following the

            court's  sua  sponte  dismissal  of  his  case  for  lack  of
                     ___  ______

            prosecution  pursuant  to Fed.  R. Civ.  P.  41(b).   For the

            reasons stated below, we affirm.

                                          I.

                      On August 6, 1991,  plaintiff, a resident of Puerto

            Rico,  filed  a  complaint  alleging a  claim  for  injurious

            falsehood against  defendant Isaac Rudman, a  resident of the

            Dominican Republic.   On  June 29, 1992,  the district  court

            issued an  order to show  cause why  the case  should not  be

            dismissed  for  lack  of  prosecution.    In  the  order, the

            district court stated that "almost eleven months have elapsed

            since  the complaint  was  filed; but  plaintiff has  not yet

            served  the  defendant."   Plaintiff  responded  by filing  a

            motion  requesting until July  31, 1992 to  effect service of

            process.  Plaintiff  stated in the motion that  if he did not

            serve the defendant  by the  end of July,  he would move  for

            voluntary dismissal of the case.    

                      The  additional  requested   time  lapsed   without

            service  of  process.1   Thereafter,  instead  of moving  for

____________________

            1.  Plaintiff  explains his  failure to  complete  service of
            process during the  first year  by stating  that his  process
            server  went  to Santa  Domingo,  Dominican  Republic on  two
            occasions  to  attempt  personal  service.    Plaintiff  also
            states:    "In  several   other  occasions  [sic],  plaintiff

                                         -2-

voluntary  dismissal,  defendant  requested authorization  to

            serve  process  by publication.    On  October  9, 1992,  the

            district  court issued a second  order to show  cause why the

            case should not  be dismissed  for lack of  prosecution.   In

            response,  plaintiff  brought  to the  court's  attention his

            pending motion to serve process by publication, and the court

            allowed  this motion.  On November 18, 1992, the court issued

            a summons by edict.   Over two months  later, on January  29,

            1993,  the edict  was  finally published  in  a Puerto  Rican

            newspaper.2  Following publication,  plaintiff sent a copy of

            the  complaint and edict  by certified mail  to the defendant

            and received a  signed, return receipt dated  April 12, 1993.

            On May 7, 1993, plaintiff moved for entry of default.  On May

            10, 1993, the district  court dismissed the case for  lack of

            prosecution pursuant to Fed. R. Civ. P. 41(b).  The same day,

            the clerk entered default against the defendant.

                      On  May  18, 1993,  plaintiff  filed  a motion  for

            reconsideration of  the dismissal  order.  After  judgment on

            the  dismissal order  was entered  on the  docket on  May 21,

____________________

            followed rumors that the defendant would fly into Puerto Rico
            in other non-related matters.  Such rumors proved unfounded."

2.  According to the plaintiff,  the delay in publication was
            caused  by the failure of the clerk's  office to mail him the
            edict.  Plaintiff  alleges that although he  submitted a form
            edict to the clerk's office on or about  October 31, 1992, he
            did not learn that the edict had been issued until  the first
            week in January 1993 when he instructed his secretary to call
            the clerk's office.

                                         -3-

1993,  plaintiff  renewed his  motion for  reconsideration on

            June  1, 1993.  The  district court entered  an order denying

            the motion for reconsideration on June  24, 1993.  On July 2,

            1993,  plaintiff filed  a second motion  for reconsideration.

            This motion was denied by order entered on July 20, 1993 when

            the court  "[f]or the third  and final  time" reiterated  its

            dismissal order.   Plaintiff  filed his  notice of appeal  on

            July 29, 1993.

                                         II.

                      Dismissal for failure to prosecute is a significant

            sanction  but where a plaintiff is truly dilatory, the choice

            of sanction is a matter within the discretion of the district

            court and is reviewed under an abuse of discretion  standard.

            In this realm, claims of "abuse of discretion typically `have

            not received a sympathetic  ear from us.'"  Figueroa  Ruiz v.
                                                        ______________

            Alegria,  896 F.2d 645, 647  (1st Cir. 1990) (quoting Damiani
            _______                                               _______

            v. Rhode Island Hospital, 704 F.2d 12, 17 (1st Cir. 1988)).
               _____________________

                      Almost  two  years   elapsed  from  the   time  the

            complaint was filed to the point when the case was dismissed.

            During that  time, plaintiff  had done nothing  except effect

            service and then, belatedly, filed a motion for default.  The

            first  year was  marked by unexplained  delays in  seeking to

            affect service.   Even  the second  year presented  lapses of

            diligence.  In particular:

-4-

First,  plaintiff   apparently  delayed  publishing

            notice  for over two  months after notice  by publication was

            approved by the  district court.  Although  counsel says that

            he did not  know of the  entry of the court's  order, counsel

            has a duty after submitting a request to the court to monitor

            the docket.

                      Second,  although notice  was published  on January

            29, 1993, calling upon the defendant to answer within 30 days

            from the date of  publication and warning that default  could

            otherwise occur,  there is no indication  that plaintiff took

            further steps to prosecute  the case until May.   The default

            motion  was filed more or less  at the time that the district

            court determined to dismiss the case.

                      We agree that the district court may well have been

            unaware of the belated  default motion at the time  the court

            dismissed  the case for want of prosecution.  But the court's

            order  on reconsideration made  clear that the  court did not

            regard  the belated default motion as a timely effort and did

            not  think that  the belated  motion justified  retaining the

            case on its docket.

                      We think that the overall progress of this case has

            been marked  by a  lack  of serious  intent.   In  a time  of

            crowded dockets  and urgent  matters, the kind  of on-and-off

            again efforts  exhibited by plaintiff  in this  case are  not

            appropriate and need  not be tolerated.   The district  court

-5-

was lenient at the outset but  eventually its patience became

            exhausted.   We do  not regard  its decision as  an abuse  of

            discretion.

                      Affirmed.  See 1st Cir. R. 27.1.
                      ________   ___

-6-

Alvarez-Silva v. Rudman, (1st Cir. 1994).

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Louis M. Damiani, M.D. v. Rhode Island Hospital

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