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.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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James P. Chandler with whom Chandler & Robertson was on brief for
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appellant.
Christopher D. Nyhan with whom Elizabeth J. Wyman and Preti,
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Flaherty, Beliveau & Pachios were on brief for appellees.
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June 19, 1995
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STAHL, Circuit Judge. This appeal arises from an
STAHL, Circuit Judge.
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action brought by Dr. James Benjamin, Jr., and several of his
patients against the Aroostook Medical Center ("TAMC"),
alleging the racially-motivated termination of Benjamin's
staff privileges.1 The district court dismissed the
patients' claims, holding that they lacked standing to
challenge TAMC's actions. Subsequently, the court dismissed
Benjamin's claims with prejudice, explaining that Benjamin's
counsel had failed to make himself available for proceedings
and to respond to notices from the court. We affirm the
dismissal of the patients' claims and modify the district
court's order dismissing Benjamin's claims so that it
operates without prejudice.
I.
I.
__
Background
Background
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On February 12, 1992, Benjamin, a physician of
African-American descent, submitted a completed application
for staff privileges to TAMC. TAMC did not approve
Benjamin's application, but instead, on October 12, 1992,
granted him a "provisional appointment." Benjamin had
licenses to practice medicine in California, Connecticut,
Minnesota and Maine, and had received a certification in the
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1. In addition to TAMC, the complaint designates several
named and unnamed TAMC officers, agents, employees and staff
physicians as defendants. For purposes of this opinion, we
will refer to all defendants collectively as "TAMC."
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"Specialty of Internal Medicine" from the American Board of
Internal Medicine. TAMC, which is located in Presque Isle,
Maine, has approximately forty-five physicians on its medical
staff and it does not allow physicians without staff
privileges to treat patients at its facilities. At the time
of Benjamin's appointment, TAMC had no African-American
physician on its staff.
On October 11, 1993, TAMC's Medical Staff Executive
Committee recommended that TAMC terminate Benjamin's
provisional staff privileges. Subsequently, on January 7,
1994, Benjamin and seventeen of his patients commenced this
action pro se in federal district court alleging that TAMC,
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through discriminatory policies and practices, had denied
Benjamin staff privileges on account of his race. On
February 11, 1994, the district court issued 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, 1994, TAMC filed a motion to dismiss the patients' claims
for lack of standing. After Benjamin and the patients
responded through newly obtained counsel, the district court
granted the motion, finding that the patients had not
sufficiently alleged that they had suffered any "injury-in-
fact" as a result of the hospital's actions.
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On April 29, 1994, Benjamin's counsel sought to
withdraw, citing irreconcilable differences with Benjamin.
The district court granted the motion, pending an appearance
by replacement counsel (or by Benjamin pro se). On May 31,
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1994, Benjamin's counsel renewed the motion to withdraw, and
the district court ordered Benjamin to show cause why he had
not obtained new counsel. On June 8, 1994, TAMC filed a
motion to dismiss, arguing that Benjamin had failed to make
himself available for a deposition and had obstructed TAMC's
efforts 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 of Benjamin and simultaneously moved
to enlarge the time to respond to TAMC's pending motions to
dismiss. The district court granted this motion, giving
Benjamin and his new counsel until July 15, 1994, to respond.
On July 7, 1994, Chandler became seriously ill and
was hospitalized in Washington, D.C. At the time of his
hospitalization, Chandler had not responded to TAMC's motion
nor consulted with Benjamin's former counsel. On July 15,
1994, a law clerk for Chandler moved for an additional
enlargement of time on account of Chandler's sudden illness.
The district court denied the motion in light of TAMC's
objection and because it was improperly filed by an
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individual without authority to practice before the court.
On August 2, 1994, Chandler filed another motion for
enlargement of time, which the district court denied by
endorsement.
On August 17, 1994, the district court held a
hearing on TAMC's pending motions to dismiss at which neither
Chandler nor Benjamin appeared. Noting that, since
Chandler's appearance on Benjamin's behalf, Chandler had
neither made himself available for any proceedings nor
responded to notices from the court, the district court
granted TAMC's motion to dismiss with prejudice. This appeal
followed.
II.
II.
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Discussion
Discussion
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We address two issues on appeal. First, Benjamin's
patients contest the district court's finding that they lack
standing to assert their claims against TAMC. Second,
Benjamin argues that his 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
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At oral argument, counsel for the patients and
Benjamin asserted that the patients' standing argument rested
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primarily on 42 U.S.C. 1981.2 The patients contend that
they have standing because TAMC's actions interfered with
their 1981-protected right to contract with Benjamin, a
minority physician. TAMC, however, maintains that the
patients themselves have no legally cognizable injury and, at
best, only assert the third-party rights of Benjamin. After
careful review, we conclude that, on 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 seeking to invoke the
jurisdiction of the federal court. Warth v. Seldin, 422 U.S.
_____ ______
490, 518 (1975); United States v. AVX Corp., 962 F.2d 108,
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114 (1st Cir. 1992). We review de novo a district court's
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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 the same
right in every State and Territory to
make and enforce contracts, to sue, be
parties, give evidence, and to the full
and equal benefit of all laws and
proceedings for the security of persons
and property as is enjoyed by white
citizens . . . .
(b) "Make and enforce contracts" defined
"Make and enforce contracts" defined
For purposes of this section, the
term "make and enforce contracts"
includes the making, performance,
modification, and termination of
contracts, and the enjoyment of all
benefits, privileges, terms and
conditions of the contractual
relationship.
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standing determination, employing an approach that, in
practice, differs little from that used to review motions to
dismiss under Fed. R. Civ. P. 12(b)(6). AVX Corp., 962 F.2d
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at 114. In conducting our review, we are obliged to "accept
as true all 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,
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919 (1st Cir. 1993).
"Standing is the determination of whether a
specific person is the proper party to bring a particular
matter to the Court for adjudication." Erwin Chemerinsky,
Federal Jurisdiction 2.3, at 48 (1989). The "inquiry
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involves both constitutional limitations on federal-court
jurisdiction and prudential limitations on its exercise."
Warth, 422 U.S. at 498; see also Vote Choice, Inc. v.
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DiStefano, 4 F.3d 26, 36 (1st Cir. 1993). The constitutional
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limitations derive from the language of Article III that
provides, inter alia, that federal courts shall resolve
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disputes involving only "Cases" or "Controversies." AVX
___
Corp., 962 F.2d at 113. The Supreme Court has interpreted
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this general constitutional proscription as setting forth
three fundamental requisites of standing that every litigant
invoking the jurisdiction of the federal courts must possess:
(1) injury-in-fact -- an invasion of a legally-protected
interest that is both concrete and particularized, and actual
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or imminent; (2) causation; and (3) redressability. Lujan v.
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Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); Libertad
_____________________ ________
v. Welch, No. 94-1699, slip op. at 10-11 (1st Cir. Apr. 28,
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1995).
Several prudential considerations also infuse
standing determinations. These considerations, which
militate against standing, principally concern whether the
litigant (1) asserts the rights and interests of a third
party and not his or her own, (2) presents a claim arguably
falling outside the zone of interests protected by the
specific law invoked, or (3) advances abstract questions of
wide public significance essentially amounting to generalized
grievances more appropriately addressed to the representative
branches. Libertad, slip op. at 11. Consideration of these
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prudential factors enables the federal judiciary "to avoid
deciding questions of broad social import where no individual
rights would be vindicated and to limit access to the federal
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courts to those litigants best suited to assert a particular
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claim." Gladstone, Realtors v. Village of Bellwood, 441 U.S.
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91, 99-100 (1979) (emphasis added); see also Conservation Law
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Found. of New England v. Reilly, 950 F.2d 38, 41 (1st Cir.
______________________ ______
1991).
For purposes of this appeal, we need not resolve
whether the patients have met the constitutional requisites
of standing, rather we believe that, because the patients'
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allegedly infringed-upon rights fall outside what we have
previously found to be protected by 1981, the patients
essentially assert the third-party rights of Benjamin rather
than their own. Furthermore, because the patients have not
satisfied the minimum requirements 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 a party is asserting its own rights, as
opposed to seeking to vindicate the rights of a third party,
is often a difficult question. See generally, Henry P.
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Monaghan, Third Party Standing, 84 Colum. L. Rev. 277 (1984).
____________________
Though the patients claim a direct infringement of their
right to contract with a minority physician, at its essence,
we believe their claim is more accurately described as an
assertion of Benjamin's third-party right to a race-neutral
review process.
Primarily, the patients' allegedly infringed-upon
rights fall outside what we, and other courts, have
previously found to be protected by 42 U.S.C. 1981.3 Most
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3. Although standing in no way depends on
the merits of the plaintiff's contention
that particular conduct is illegal, e.g.,
____
Flast v. Cohen, 392 U.S. 83, 90 (1968),
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it often turns on the nature and source
of the claim asserted. . . . [T]he source
of the plaintiff's claim to relief
assumes critical importance with respect
to the prudential rules of standing that,
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cases brought pursuant to 1981 involve allegations of
discriminatory conduct prompted by hostility towards the
plaintiff's race. See Dartmouth Review v. Dartmouth College,
___ ________________ _________________
889 F.2d 13, 17 (1st Cir. 1989). Occasionally, however,
courts have allowed cases to proceed where a plaintiff
challenges a discriminatory action motivated by animosity
towards another person's race. See, e.g., Des Vergnes v.
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Seekonk Water Dist., 601 F.2d 9, 13-14 (1st Cir. 1979);
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Winston v. Lear-Siegler, Inc., 558 F.2d 1266, 1268-70 (6th
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Cir. 1977); DeMatteis v. Eastman Kodak Co., 511 F.2d 306,
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311-12 (2d Cir.), modified on other grounds, 520 F.2d 409
________ __ _____ _______
(1975). Such cases have generally been limited to situations
in which the plaintiff was the direct target of the
defendant's discriminatory action. In Des Vergnes, for
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example, a water district acted directly against the non-
minority developer by refusing the developer's request to
include a tract of land proposed for low-income minority
housing in the water district. Des Vergnes, 601 F.2d at 11-
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12. Consequently, we held that the non-minority developer
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apart from Art. III's minimum
requirements, serve to limit the role of
the courts in resolving public disputes.
Essentially, the standing question in
such cases, is whether the constitutional
or statutory provision on which the claim
rests properly can be understood as
granting a person in the plaintiff's
position a right to judicial relief.
Warth, 422 U.S. at 500.
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had standing under 1981 even though the water district's
alleged discriminatory action was motivated by animosity
towards the race of the prospective tenants and not the race
of the developer. Id. at 14. Other cases most typically
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involve a discriminatory employment action (e.g., firing)
____
taken by an employer directly against a non-minority employee
because of that employee's association with, or advocacy of,
minorities. See, e.g., Alizadeh v. Safeway Stores, Inc., 802
___ ____ ________ ____________________
F.2d 111, 114 (5th Cir. 1986) (white plaintiff fired because
married to minority spouse); Winston, 558 F.2d at 1270 (white
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employee fired for advocating rights of minority); cf. Phelps
___ ______
v. Wichita Eagle-Beacon, 886 F.2d 1262, 1266-67 (10th Cir.
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1989) (white lawyer had standing under 1981 to sue
newspaper that published allegedly false articles about him
because he represented minorities).
Here, the patients challenge an action by TAMC
neither motivated by animosity towards the patients' race nor
specifically targeted at, or taken directly against, the
patients. The patients' alleged injury arises only as a
derivative effect of TAMC's administration of its general
policies governing the grant and review of physician staff
privileges. Cf. Department of Labor v. Triplett, 494 U.S.
___ ___________________ ________
715, 720 (1990) (standing may exist where "enforcement of a
restriction against a litigant prevents a third party from
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entering into a relationship with the litigant (typically a
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contractual relationship), to which the third party has a
legal entitlement") (emphasis added); see generally Monaghan,
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84 Colum. L. Rev. at 306-11 (discussing the distinction
between direct and indirect interference with right to
interact as a limit on standing). The direct injury in this
case is TAMC's alleged 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. Finally, neither does the
fact that Benjamin cannot treat the patients at TAMC
completely disrupt the patients' relationship with Benjamin:
TAMC's revocation of Benjamin's staff privileges does not
preclude him from treating the patients outside of TAMC
facilities. Accordingly, because the patients' injury
occurs, if at all, only as a derivative effect of TAMC's
action against Benjamin, we hold that, in attempting to bring
their claims under 1981, they are asserting Benjamin's
third-party rights, and not their own. See Mackey v.
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Nationwide Ins. Co., 724 F.2d 419, 421-22 (4th Cir. 1984)
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(insurance agent challenging insurer's redlining policy is
asserting third-party rights of homeowners); Capital Nat'l
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Bank of N.Y. v. McDonald's Corp., 625 F. Supp. 874, 882
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(S.D.N.Y. 1986) (non-minority lender to minority franchisee
asserts only third-party rights of minority franchisee in
challenge to franchisor's alleged discriminatory termination
of franchisee's contract).
While the general proscription on third-party
standing is not absolute, Powers v. Ohio, 499 U.S. 400, 410
______ ____
(1991); Warth, 422 U.S. at 500-01, no exception to the ban is
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applicable in this case. In Powers, the Supreme Court stated
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that an individual seeking to assert the rights of a third
party must, as a prerequisite, satisfy three specific
criteria: "The litigant must have suffered an 'injury in
fact,' . . . ; the litigant must have a close relationship to
the third party; and there must exist some hindrance to the
____ _____ ____ _________
third party's ability to protect his or her own interests."
Powers, 499 U.S. at 411 (citations omitted) (emphasis added);
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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 patients could satisfy
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the first two criteria, they clearly fail to establish the
third. No hindrance exists in this case that prevents the
third party, Benjamin, from asserting his own rights. In
order to satisfy this criterion, a party must show that some
barrier or practical obstacle (e.g., third party is
____
unidentifiable, lacks sufficient interest, or will suffer
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some sanction) prevents or deters the third party from
asserting his or her own interest. See, e.g., Powers, 499
___ ____ ______
U.S. at 414-15 (lack of economic incentive); Clifton Terrace
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Assocs. v. United Technologies Corp., 929 F.2d 714, 721 (D.C.
_______ _________________________
Cir. 1991) (no barriers because, inter alia, third parties
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are plainly identifiable); Playboy Enters., 906 F.2d at 37-38
_______________
(threat of official sanction) Here, the injured party is
clearly identified and has sufficient interest in 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, our holding, that Benjamin, and not
the patients, is the proper party to bring an action against
TAMC, is consistent with the policies underlying the
prudential rule against third-party standing. See Singleton
___ _________
v. Wulff, 428 U.S. 106, 114 (1976) (general proscription on
_____
third-party standing may be avoided where the "underlying
justifications are absent"). Indeed, one of the principal
justifications for the rule is that it assures that the party
bringing the litigation will be the "most effective advocate
of the rights at issue." Duke Power Co. v. Carolina Envtl.
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Study Group, Inc., 438 U.S. 59, 80 (1978); see also Secretary
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of State v. Joseph H. Munson Co., 467 U.S. 947, 955 (1984)
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(rule against third-party standing guarantees that issues
essential to litigation will be "concrete and sharply
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presented"). Here, because the merits of the action turn
largely on an evaluation of Benjamin's performance at TAMC,
he, and not the patients, is clearly the best party to assert
the claim. Not only would Benjamin be best able to contest
TAMC's assertion of professional incompetence, but, in
addition, he would likely be far more able to point to
specific instances of conduct attributable to TAMC that
suggest a discriminatory motive. Indeed, it is far from
clear that the patients, who would not be privy to all the
particulars of Benjamin's relationship with the hospital,
could effectively proceed without Benjamin's participation.
To summarize, because the patients' claims fall
outside what we, and other courts, have previously found to
be protected by 1981, we believe the patients assert the
third-party rights of Benjamin and not their own.
Furthermore, because the patients have not met the minimum
requisites for third-party standing, we hold that the
district court did not err in dismissing their claims.
B. Benjamin's Claims
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Benjamin contends that the district court erred in
granting TAMC's motion to dismiss with prejudice. Benjamin
maintains that the district court granted the motion
essentially because his counsel failed to prosecute the
action by not responding to TAMC's motion to dismiss or
appearing at the August 17 hearing. Benjamin argues,
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however, that these failures are excusable in light of his
attorney's sudden and serious illness.
We treat the district court's dismissal as issued
pursuant to Rule 41(b).4 We review dismissals under Rule
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4. Fed R. Civ. P. 41(b) provides in relevant part:
For failure of the plaintiff to prosecute
or to comply with these rules or any
order of court, a defendant may move for
dismissal of an action or of any claim
against the defendant. Unless the court
in its order for dismissal otherwise
specifies, a dismissal under this
subdivision and any dismissal not
provided for in this rule, other than a
dismissal for lack of jurisdiction for
improper venue, or for failure to join a
party under Rule 19, operates as an
adjudication upon the merits.
TAMC contends that the district court dismissed
Benjamin's claims pursuant to Local Rule 19(c) and not Rule
41(b). Local Rule 19(c) provides that the failure to file a
timely written response to a pending motion will waive any
objections to that motion. U.S. Dist. Ct. Me. Gen. R. 19(c).
Our reading of the district court's order, however,
convinces us that it was acting pursuant to Rule 41(b). The
district court did not cite Local Rule 19(c) in ordering the
dismissal of the case. Neither did the district court state
that the dismissal was compelled because Benjamin's failure
to respond constituted a waiver of any objection to the
motion. Instead, the district court reasoned, "Because the
plaintiff, through counsel, has failed to make himself
available for any proceedings since the appearance of Mr.
Chandler and since the plaintiff, through counsel, has not
responded to notices from the Court, defendant's Motion to
Dismiss plaintiff's actions is hereby GRANTED with
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prejudice." We think this rather terse statement makes
apparent that the court's motivation stemmed more from its
displeasure at Benjamin and Chandler's failure either to
appear at the hearing or to notify the court (and opposing
counsel) of their expected absence, than just Benjamin and
Chandler's (arguably) excusable failure to respond to TAMC's
motion to dismiss.
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41(b) for abuse of discretion. Capo v. United States, 7 F.3d
____ _____________
283, 284 (1st Cir. 1993); Enlace Mercantil Internacional,
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Inc. v. Senior Indus., Inc., 848 F.2d 315, 317 (1st Cir.
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1988). Claims of abuse of discretion under Rule 41(b)
typically have "not received a sympathetic ear from us."
Damiani v. Rhode Island Hosp., 704 F.2d 12, 17 (1st Cir.
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1983) (collecting cases). At the same time, this "does not
mean we have rubber-stamped the decisions of the district
court." Id. Dismissal with prejudice "is a harsh sanction,"
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Richman v. General Motors Corp., 437 F.2d 196, 199 (1st Cir.
_______ ____________________
1971), which runs counter to our "strong policy favoring the
disposition of cases on the merits." Zavala Santiago v.
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Gonzalez Rivera, 553 F.2d 710, 712 (1st Cir. 1977). As a
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result, we have indicated that such an option should be
employed only when a plaintiff's misconduct is particularly
egregious or extreme. See, e.g., Estate of Solis-Rivera v.
___ ____ ______________________
United States, 993 F.2d 1, 2 (1st Cir. 1993); see also Cosme
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Nieves v. Deschler, 826 F.2d 1, 2 (1st Cir. 1987) ("[i]n all
______ ________
the cases in which we have upheld a dismissal for want of
prosecution, we have found either extremely protracted
inaction (measured in years), disobedience of court orders,
ignorance of warnings, contumacious conduct or some other
aggravating circumstance"). In reviewing the trial court's
actions, we engage in an "open-ended balancing test," giving
appropriate consideration to all relevant factors. Figueroa
________
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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).
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If the district court's order ensued solely because
Attorney Chandler's sudden illness prevented him from
responding to TAMC's motion to dismiss, Benjamin's argument
would have significantly more bite. Indeed, we have
suggested that, in deciding a motion for an extension of
time, a 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, 23 F.3d 576, 584
___ _______________ __________________
(1st Cir. 1994) (finding no abuse of discretion in denial of
motion for enlargement of time where, inter alia, party does
_____ ____
not advert 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).
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In this case, however, other factors obtain, most importantly
Chandler's failure to appear at the August 17 hearing or to
notify the court and opposing counsel in advance of his
expected absence. See Simpson v. Welch, 900 F.2d 33, 34-35
___ _______ _____
(4th Cir. 1990) (no abuse of discretion to dismiss pursuant
to Rule 41(b) where counsel did not respond to summary
judgment motion or appear at hearing on motion). Moreover,
Chandler's failure to appear occurred after the court had
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already extended the time to respond to TAMC's motion to
dismiss upon Chandler's late appearance in the case. Cf. 9
___
Charles A. Wright & Arthur R. Miller, Federal Practice and
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Procedure 2352, at 402 (2d ed. 1995) (prior delays relevant
_________
in evaluating denial of continuance).
On the other hand, though Chandler's failure to
notify the district 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 becomes somewhat mitigated. TAMC does not
dispute that Chandler, who lives in Washington, D.C., was
seriously ill. Indeed, Chandler had apprised the district
court and opposing counsel of the severity of his illness
through two motions for enlargement of time filed on July 15
and August 2. The August 2 motion expressly states that "The
prognosis of [Chandler's] primary care physician is that
[Chandler] 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 second motion for enlargement of time.
Finally, the litigation, at the time of the court's
dismissal, was less than one year old.
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We sympathize with the district court's frustration
in the face of counsel's failure to appear, and we fully
appreciate the district court's need to control its docket.
Furthermore, we "wholeheartedly endorse the use of stiff
sanctions, including dismissal [with prejudice], where
appropriate." Velazquez-Rivera v. Sea-Land Serv., Inc., 920
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F.2d 1072, 1079 (1st Cir. 1990). While we agree that
Chandler's failure to appear or to notify the court warrants
punishment, we believe that, in this case, the district
court's use of the ultimate sanction of dismissal with
prejudice was a step too far. Hence, we modify the order of
the district court to a dismissal without prejudice. See 9
___
Wright & Miller, Federal Practice and Procedure 2373, at
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402 ("The decision of the trial court to dismiss with
prejudice may be reviewed on appeal and the appellate court
may order the dismissal to be without prejudice.").
III.
III.
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Conclusion
Conclusion
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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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