Muckle v. Lotus Development

Opinion

USCA1 Opinion

September 7, 1993
                                [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
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No. 93-1010 

                                   PAUL L. MUCKLE,

                                Plaintiff, Appellant,

                                          v.

                                  LOTUS DEVELOPMENT,

                                 Defendant, Appellee.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                   [Hon. Edward F. Harrington, U.S. District Judge]
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                                 ____________________

                                        Before

                               Selya, Boudin and Stahl,
                                   Circuit Judges.
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                                 ____________________

            Paul L. Muckle on brief pro se.
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            Melinda Milberg and Glovsky & Associates on brief for appellee.
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Per Curiam.  The appellant, Paul  Muckle, appeals from a
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            judgment  of the district court dismissing his complaint.  We

            vacate and remand.

                 In August  1991, Muckle  filed a civil  rights complaint

            against  his former  employer, Lotus  Development Corporation

            (Lotus),  in which he alleged that  his lay-off and/or denial

            of  permanent employment resulted from racial discrimination.

            The district court concluded  that the complaint survived the

            threshold  standard for in  forma pauperis proceedings, i.e.,

            it  was not frivolous, see  28 U.S.C.    1915(d), and allowed
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            the case to proceed.

                 On  October 2,  1992, the  district court  set a  status

            conference for  October 26 at 2:45  pm.  On  October 6, Lotus

            notified Muckle that it would  take his deposition on October

            22.   It is undisputed  that Muckle received  notification of

            both the deposition  and the status  conference.  Muckle  did

            not appear for his deposition on October 22.  Muckle also did

            not  appear at  the October  26 status  conference.   At that

            conference,  Lotus moved to dismiss  on the basis  of Fed. R.

            Civ. P. 37(d), i.e., on the ground that  Muckle had failed to

            attend  his own deposition.1  The district court, in a margin

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            1.  Rule 37(d) states, in pertinent part:
                      If a party ... fails ... to appear before
                      the   officer   who   is  to   take   the
                      deposition,  after  being  served with  a
                      proper notice, ... the court in which the
                      action is pending on motion may make such
                      orders in regard  to the  failure as  are

order, dated  October 26, endorsed Lotus'  motion, "Motion To

            Dismiss is allowed."   Judgment entered by separate document,

            Fed. R. Civ. P. 58, on October 27, 1992.

                 The  district  court record  reveals,  however, that  on

            October  26 at  1:29 pm,  i.e., before  the scheduled  status

            conference, Muckle  filed and  the district court  received a

            document  captioned, "Petition  for Writ  of Habeas  Corpus."

            That document, dated October 20, asked that  the court direct

            the   superintendent   of   the  Massachusetts   Correctional

            Institute  at Concord to produce  Muckle for a  hearing.  The

            petition  was a boilerplate  form, but at  the bottom, Muckle

            handwrote the following:

                      P.S. If possible could  court please  put
                      off  status  conference  till 11-2-92  or
                      whenever court deem possible.

            The petition was signed by Muckle, with apparently his inmate

            number,  and his prison address at MCI Concord.  Although the

            habeas  petition was filed in the district court at 1:29 p.m.

            before  the   2:45  p.m.  status  conference,   there  is  no

            indication that the district  judge had any knowledge  of the

            petition prior to the status conference.

                 But  there  is considerably  more  to  the story.    The

            judgment of dismissal was entered on a separate document  and

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                      just, and  among others  it may take  any
                      action  authorized under  paragraphs (A),
                      (B),   and   (C)   [which,  inter   alia,
                      authorizes  dismissal  of the  action] of
                      subdivision (b)(2) of this rule.

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filed on October 27,  1992, and transmitted to Muckle  at his

            last known pre-incarceration address.   On December 28, 1992,

            long  after the 30 day period for filing appeals had expired,

            see Fed. R. App. P. 4(a)(1), Muckle filed a notice  of appeal

            in the district  court.  On review of the appeal papers, this

            court  sua sponte asked Muckle  to show cause  why the appeal

            should not  be dismissed  for lack  of jurisdiction.   Muckle

            then asked this  court to  treat his notice  as timely  under

            subsection (a)(6) of the rule which allows the district court

            to reopen the time to appeal  under certain circumstances. We

            then  asked  the  district  court to  determine  whether  the

            reopening provision had been  satisfied.  Based on affidavits

            from Muckle and his sister, the district court found that the

            provision  had  been satisfied  and  it  reopened the  appeal

            period.  

                 The  district court has  very substantial  discretion in

            applying sanctions  for failure  to comply with  discovery or

            other deadlines, as it must have in a time of crowded dockets

            and  multitudinous management  tasks.   But  even this  broad

            discretion might be strained by a dismissal based solely on a

            litigant's failure  to appear at a  deposition where illness,

            incarceration or  some other powerful excuse  existed and was

            brought to the  court's attention  in a timely  fashion.   In

            this  instance, however,  Muckle's failure  to appear  at the

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deposition  or status  hearing--despite notice  of both--does

            not stand alone.

                 It  appears  from  the  record  that  Muckle  filed  his

            complaint on or about August 21, 1991, but did not  serve the

            complaint  until January  7,  1992, well  after  the 120  day

            period normally  fixed for service.2   When  Lotus sought  to

            serve its answer,  the mailing to Muckle's record address was

            returned, apparently because Muckle had moved in the meantime

            without advising  Lotus.  Thereafter, Muckle  was located and

            reserved on July 15, 1992, acknowledged receipt but then took

            no   action  whatever   in  the   litigation  prior   to  his

            incarceration  three  months'  later.     This  inaction   is

            troublesome because  the magistrate  judge had  earlier fixed

            October 31, 1992, as the cut-off date for discovery.  

                 It  also  appears  that  Muckle was  advised  of  Lotus'

            October 6, 1992, deposition notice scheduling  his deposition

            for  October 22, 1992,  and of the  district court's pretrial

            conference scheduled  for October  26, 1992.   Muckle's later

            explanation that he  was sentenced on  October 16, 1992,  and

            thereafter  imprisoned in MCI Concord does not explain why at

            some  point between October 6  and October 26  Muckle did not

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            2.  Muckle does provide some  explanation for the delay which
            may  have been  caused  in part  by  his initial  failure  to
            provide the district court with the customary letter from the
            EEOC.   This  letter, which  he had  received, said  that the
            agency had found no grounds for proceeding with his complaint
            and freed him to file the complaint in district court.

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notify the court and Lotus that he might or would not be able

            to  attend either of  the scheduled functions.   Although his

            filings  do indicate  the  difficulties of  proceeding  under

            prison conditions, they also indicate that he had access to a

            telephone  by October  21; but  there is  no indication  that

            either Lotus' counsel or the court was notified.

                 Thus,  even apart  from questions  about whether  Muckle

            made timely efforts to pursue the appeal after the October 27

            judgment, Muckle's attention to this civil suit was seriously

            deficient.  Against this background, we do not think that the

            district  court could be held to have abused its considerable

            discretion  if it  dismissed  the case  despite knowledge  of

            Muckle's  incarceration.   Rather, dismissal  for failure  to

            attend the  deposition--or at least  to notify the  court and

            Lotus in advance that attendance might be or was impossible--

            would represent  a permissible  judgment that Muckle  was not

            taking seriously  his responsibilities to  the district court

            or  the   defendant  in   litigation  that  he   himself  had

            instigated. 

                 Nevertheless,  we think  that Muckle  is entitled  to an

            informed  exercise of  the  district court's  discretion--and

            that discretion belongs to the district court and not to us--

            before the extreme  penalty of a dismissal  with prejudice is

            visited on  him based on a  failure to appear.   Based on the

            complaint alone, the district court has already said that the

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allegations  cannot be  deemed frivolous.   While  Muckle has

            been somewhat careless and dilatory, our review of the record

            indicates that he has partial  explanations for at least some

            of the  deficiencies and he is  a pro se litigant.   Since we

            asked the district judge only  for a finding on reinstatement

            of the appeal, he may well have thought it beyond his mandate

            to  reconsider  the  dismissal.   Indeed,  Muckle  has  never

            formally  asked  the   district  court   to  reconsider   its

            dismissal.

                 We think that the fair and efficient course is to vacate

            the  judgment  dismissing the  case  and  to  remand for  the

            district  court  to exercise  its  discretion  as to  whether

            dismissal is warranted  and, if so,  whether with or  without

            prejudice,  in light of its  current knowledge of  all of the

            circumstances including  Muckle's incarceration.   The record

            is now ample  and the district court  is not obliged  to have

            any hearing  or entertain further  submissions before  making

            its final determination.3

                 Vacated and remanded.  No costs.
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            3.  Muckle has moved for reconsideration of our order of July
            23, 1993,  denying  his motions  which  sought to  amend  his
            complaint and sought the  production of documents from Lotus.
            The motion for reconsideration is denied.  We take no view on
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            the merits of these  requests.  Because we have  remanded the
            case, this denial is  without prejudice to Muckle  filing his
            motions to amend and  for the production of documents  in the
            district  court, in the event that that court reconsiders its
            dismissal and reopens the case.

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