Rosario-Diaz v. Gonzalez

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 97-1757

MARIA M. ROSARIO-DIAZ, ET AL.,

Plaintiffs, Appellees,

v.

JOSE GONZALEZ,

Defendant, Appellant.

No. 97-1756

MARIA M. ROSARIO-DIAZ, ET AL.,

Plaintiffs, Appellees,

v.

DOMINGO DIAZ ORTIZ,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Hector M. Laffitte, U.S. District Judge]

Before

Selya, Circuit Judge,

Campbell, Senior Circuit Judge,

and Stahl, Circuit Judge.

Gustavo N. Gelp, Jr., with whom Ramonita Perez de Gotay, John

M. Garca, and Yvette de Luna were on consolidated brief, for

appellants.

Peter Berkowitz, with whom Roberto Roldn Burgos was on brief,

for appellees.

April 1, 1998

SELYA, Circuit Judge. In this action, brought pursuant to

42 U.S.C. 1983 (1994), two defendants, Jos Gonzlez and Domngo

Daz Ortiz, appeal the district court's refusal to entertain their

belated motions for summary judgment (in which each defendant

sought to assert a qualified immunity defense). We find no abuse

of discretion in the lower court's ruling and therefore affirm.

I.

Background

This is our second encounter with the pretrial

proceedings in this action. Having sketched the factual

antecedents in our earlier opinion, see Daz v. Martnez, 112 F.3d

1, 2-3 (1st Cir. 1997), we abbreviate the tale here.

On September 8, 1993, while on guard duty at a public

housing project, Miguel Daz-Martnez (Officer Daz), a member of

the Puerto Rico police force, shot two siblings, killing one and

wounding the other. After the shooting, the wounded sibling and

other members of the deceased sibling's family brought suit under

section 1983, naming as defendants Officer Daz and a cadre of

upper-echelon police officials. They alleged in substance that

Officer Daz was a rogue cop who had a lengthy history of aberrant

behavior, much of which involved violence and the wanton use of

firearms.

During and after pretrial discovery, the plaintiffs

revised their complaint several times, culminating in the filing of

a third amended complaint on November 1, 1995. That pleading

omitted certain original defendants and named a cluster of new

defendants, including the appellants (both of whom are ranking

police officers). The plaintiffs served Gonzlez on December 18,

1995, and served Daz Ortiz the next day. The third amended

complaint averred that the appellants each had supervisory

authority over Officer Daz on and before the day of the shooting,

and that, had they not been deliberately indifferent to innocent

citizens' rights, they would have ensured that Officer Daz was not

placed on duty in a high-tension area with a firearm at the ready.

Service of the summonses and complaints obligated the

appellants to respond within 20 days, see Fed. R. Civ. P.

12(a)(1)(A), but neither of them complied. In hopes of galvanizing

the appellants into action, the plaintiffs hand-delivered letters

on February 27, 1996, that advised the appellants to answer the

complaint on pain of default. The Puerto Rico Department of

Justice (DOJ), statutorily charged to provide the appellants with

counsel, see P.R. Laws Ann. tit. 32, 3090 (1990), appeared in the

district court on March 5, 1996, and requested an extension of time

to file an answer on Gonzlez's behalf. Judge Laffitte gave

Gonzlez an additional five weeks, through April 12, 1996, to

respond. That deadline came and went without any further

submission on Gonzlez's part. He finally answered the complaint,

through counsel, on July 10, 1996.

Daz Ortiz was even more cavalier. For over eight

months, he did not appear, either personally or by counsel. During

that interval, he neither responded to the complaint nor sought an

extension of time for doing so. He finally filed an answer,

through counsel, on August 28, 1996.

In the meantime, much had transpired. As is typical in

cases of this genre, the district court, acting pursuant to Fed. R.

Civ. P. 16, had issued a series of case-management orders. Under

those orders, the court originally set February 12, 1996, as the

deadline for filing dispositive motions. Because the plaintiffs

amended their complaint to add new parties, the court extended the

deadline first to April 25, 1996, and eventually to May 15, 1996.

The appellants, who were fully chargeable with knowledge

of what the docket disclosed, see Latham v. Wells Fargo Bank, N.A.,

987 F.2d 1199, 1201 (5th Cir. 1993), blithely ignored these

deadlines. When they finally deigned to answer the complaint, each

simultaneously filed a motion for summary judgment based on a claim

of qualified immunity. Not surprisingly, Judge Laffitte refused to

entertain these tardy motions because they violated his scheduling

order. The judge nonetheless ruled that the appellants could raise

their qualified immunity defenses at trial. Little mollified,

Gonzlez and Daz Ortiz appealed.

II.

Appellate Jurisdiction

As a threshold matter, we contemplate our jurisdiction to

hear these appeals. The qualified immunity doctrine shields public

officials sued in their individual capacities in section 1983 cases

from liability "insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known." Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982). Generally speaking, a law-based (as

distinguished from a fact-based) denial of a defendant's claim of

qualified immunity, asserted by way of a pretrial motion for brevisdisposition, is immediately appealable. See Behrens v. Pelletier,

116 S. Ct. 834, 838-39 (1996); Johnson v. Jones, 115 S. Ct. 2151,

2159 (1995); Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). The

appellants argue that the district court's refusal to consider

their motions for summary judgment is tantamount to the law-based

rejection of a claim of qualified immunity, and thus appellate

jurisdiction over their interlocutory appeals is proper.

Of course, the district court did not deny the

appellants' motions for summary judgment. While the result of the

refusal to entertain the motions is in one sense the same as an

outright merits-based denial the appellants must stand trial

the district court's action was in reality a case-management order,

and such orders ordinarily are not amenable to interlocutory

appeal. See In re Recticel Foam Corp., 859 F.2d 1000, 1003 (1st

Cir. 1988). Moreover, the case law presents some support for a

conclusion that these appeals are not justiciable here and now.

See Edwards v. Cass County, 919 F.2d 273, 275-76 (5th Cir. 1990);

Kennedy v. City of Cleveland, 797 F.2d 297, 298, 303-04 (6th Cir.

1986).

These uncertainties grow pale, however, in the light of

circuit precedent. We have held that a defendant may bring an

interlocutory appeal from a district court's refusal to entertain

an untimely pretrial motion that raises a qualified immunity

defense. See Valiente v. Rivera, 966 F.2d 21, 23 (1st Cir. 1992)

(per curiam); Zayas-Green v. Casaine, 906 F.2d 18, 23 (1st Cir.

1990). It is trite but true that, in a multi-panel circuit, newly

constituted panels are, for the most part, obligated to follow

earlier panel decisions closely on point. See Williams v. Ashland

Eng'g Co., 45 F.3d 588, 592 (1st Cir. 1995) (collecting cases and

enumerating exceptions). Because the record reveals no principled

basis for a departure from this salutary principle, we adhere to

prior circuit precedent and hold that we have jurisdiction over

these appeals.

III.

The Appellants' Assignment of Error

The Civil Rules endow trial judges with formidable case-

management authority. This authority specifically includes

indeed, mandates setting deadlines for the filing of pretrial

motions. See Fed. R. Civ. P. 16(b)(2). In exercising this power,

"[t]rial judges enjoy great latitude," Jones v. Winnepesaukee

Realty, 990 F.2d 1, 5 (1st Cir. 1993), and a litigant who ignores

a case-management deadline does so at his peril, see, e.g., Fed. R.

Civ. P. 16(f) (authorizing sanctions for noncompliance). We have

made it clear that district courts may punish such dereliction in

a variety of ways, including but not limited to the preclusion of

untimely motions for summary judgment based on allegations of

qualified immunity. See Guzmn-Rivera v. Rivera-Cruz, 98 F.3d 664,

668 (1st Cir. 1996).

Where, as here, a range of sanctions is reasonably

thought to be available, we acknowledge the trial judge's special

coign of vantage and give him a wide berth to determine what

sanction responds most aptly to a particular infraction. See id.;

Jones, 990 F.2d at 5. Consequently, we examine the trial judge's

case-management decisions under an abuse of discretion rubric,

mindful that a disgruntled litigant "bears a formidable burden in

attempting to convince the court of appeals that the lower court

erred." United States v. One 1987 BMW 325, 985 F.2d 655, 657 (1st

Cir. 1993).

In this instance, the appellants are dealing from

weakness. Despite the fact that other defendants who were first

impleaded by means of the third amended complaint managed to file

summary judgment motions on time, the appellants did not; they

docketed their motions for summary judgment eight and fifteen

weeks, respectively, after the (twice-extended) deadline for filing

dispositive motions had expired. In the interim, they made no

attempt to request a modification of the applicable deadline.

Moreover, they proffered no compelling explanation for their

delinquency.

To be sure, upon filing their motions a step that they

took without first seeking leave of court the appellants strove

to shift the blame by complaining loudly about the DOJ's lack of

diligence in providing counsel. Yet, this complaint, even if true,

does not advance the appellants' cause. Attorneys represent

clients, and as a general rule an attorney's blunder binds her

client. See Link v. Wabash R.R. Co., 370 U.S. 626, 633-36 (1962);

Thibeault v. Square D Co., 960 F.2d 239, 246 (1st Cir. 1992). What

is more, litigants have an unflagging duty to comply with clearly

communicated case-management orders, and this duty extends even to

litigants who proceed pro se. See McNeil v. United States, 508

U.S. 106, 113 (1993); Downs v. Westphal, 78 F.3d 1252, 1257 (7th

Cir. 1996).

We think that, at the very least, the appellants should

have appeared in response to the summonses and kept the court

abreast of any difficulties that they were encountering with regard

to legal representation. This modicum of attention might have

permitted the district court to consider whether good cause existed

to modify its scheduling order. See Fed. R. Civ. P. 16(b).

However, the appellants' show of indifference sealed off this

avenue of relief. See Johnson v. Mammoth Recreations, Inc., 975

F.2d 604, 609 (9th Cir. 1992) ("[C]arelessness is not compatible

with a finding of diligence and offers no reason for a grant of

relief."). In context, then, the problems that the appellants

allegedly experienced in obtaining counsel from the DOJ do not

shield them from the condign consequences of their unilateral

decision to boycott the district court's time line.

In a Briarean effort to save the day, the appellants

shift gears and urge that the district court abused its discretion

by failing to include three relevant factors in its decisional

calculus. See, e.g., Henry v. INS, 74 F.3d 1, 4 (1st Cir. 1996)

(noting that a district court can abuse its discretion "by

neglecting to consider a significant factor that appropriately

bears on the discretionary decision"). These assertions comprise

considerably more cry than wool.

First, the appellants maintain that the district court

allowed the plaintiffs to implead them in violation of the court's

own case-management orders, and that what is sauce for the

plaintiffs' goose should be sauce for the defendants' gander. This

claim is baseless. The plaintiffs filed their third amended

complaint, which added the appellants as defendants, on November 1,

1995 the last allowable day for doing so under the district

court's schedule.

Second, the appellants argue that their summary judgment

motions are so stunningly meritorious that the district court

should have granted them regardless of any procedural

irregularities. This argument puts the cart before the horse. So

long as the district court properly refused to entertain the

motions, it had no need to consider the underlying merits. We

hasten to add, moreover, that our perusal of the appellants'

arguments in support of their claim of qualified immunity suggests

that they may well be reading their own submissions through rose-

colored glasses.

The most forceful of the appellants' arguments prescinds

from Valiente, in which we held that a district court abuses its

discretion by denying leave to move for summary judgment because

the motion comes "on the eve of trial" if, in fact, the trial has

been continued. 966 F.2d at 23. The appellants posit that because

the plaintiffs consented to a stay of proceedings while this court

reviews the lower court's denial of other defendants' immunity-

based summary judgment motions, the appellants' conduct, though

dilatory, did not jeopardize a trial date (and, therefore, is

excusable). The premise on which this argument rests is true as

far as it goes, but it does not go very far.

Here, unlike in Valiente, the district court did not

predicate its decision to eschew consideration of the appellants'

motions on a perceived need to start trial on a specific date, but,

rather, did so as a sanction for the appellants' failure to comply

with the scheduling order. Case-management authority enables the

court to shepherd cases towards fair, yet efficient, resolution.

See In re San Juan Dupont Plaza Hotel Fire Litig., 994 F.2d 956,

965 (1st Cir. 1993); 3 James Wm. Moore et al., Moore's Federal

Practice 16.02, at 16-22 (3d ed. 1997). Such empowerment not

only permits the court to grant firm trial dates, but also permits

it to group dispositive motions, forecast the likely effect of

interlocutory appeals, and otherwise ensure that a case moves

forward in a logical, reasonably expeditious progression.

Litigants could complicate exponentially the efficacious management

of crowded dockets if left free to engage in the kind of dilatory

behavior exhibited by the appellants as long as no firm trial date

was in prospect. See Guzmn-Rivera, 98 F.3d at 668.

We need go no further. Given the baldness of the

appellants' transgressions, the potential prejudice to the

plaintiffs and to the orderly administration of the court's docket

caused by the late filings, and the need to deter such conduct, we

think the district court's refusal to entertain the appellants'

motions for summary judgment is a concinnous sanction, well within

the court's discretion. See Fed. R. Civ. P. 16(f); Jones, 990 F.2d

at 5 n.9.

In reaching this conclusion, we do not denigrate the

important purpose served by the qualified immunity doctrine.

Nonetheless, it is (or should be) evident that a public official's

right to raise a qualified immunity defense is commensurate with

his responsibility to do so diligently and in keeping with the

trial court's lawful case-management orders. See Kennedy, 797 F.2d

at 301. The appellants' flagrant breach of this duty amply

justifies the district court's carefully balanced rejoinder

(precluding a belated pretrial sortie but leaving the appellants

free to raise the qualified immunity defense at trial).

Affirmed.