United States Court of Appeals

For the First Circuit

No. 11-1501

LEYDA MULERO-ABREU ET AL.,

Plaintiffs, Appellants,

v.

PUERTO RICO POLICE DEPARTMENT ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Lynch, Chief Judge,

Torruella and Selya, Circuit Judges.

Frank D. Inserni Milam for appellants.

Susana I. Peñagaricano-Brown, Assistant Solicitor General,

Puerto Rico Department of Justice, with whom Luis R. Román-Negrón,

Solicitor General, and Jeanette Collazo Ortiz, Deputy Solicitor

General, were on brief, for appellees.

March 29, 2012
SELYA, Circuit Judge. This appeal illustrates the folly

of treating case-management orders as polite suggestions rather

than firm directives. The tale follows.

After the district court ordered the plaintiffs to answer

interrogatories and produce documents by a date certain, the

plaintiffs — despite receiving several extensions of the due date

and two warnings about the consequences of not meeting it — failed

to comply. True to its word, the court dismissed the action as a

sanction for noncompliance. It thereafter refused to reconsider. 

The plaintiffs appeal. We affirm.

I. BACKGROUND

The plaintiffs, appellants here, are Leyda Mulero-Abreu

(Mulero), her husband Victor Reyes-Raspaldo, and their conjugal

partnership. Invoking federal question and supplemental

jurisdiction, see 28 U.S.C. §§ 1331, 1367, the plaintiffs brought

suit in the federal district court against the Puerto Rico Police

Department (the Department), sundry departmental employees, and the

Commonwealth of Puerto Rico.

In their complaint, the plaintiffs alleged violations of

their constitutional and statutory rights. Because this appeal

turns on the procedural history of the case, we eschew any detailed

inventory of either the plaintiffs' claims or the underlying facts. 

It suffices to say that the plaintiffs' complaint relates to

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Mulero's allegations of sexual harassment and emotional abuse

arising out of her employment by the Department.

The district court issued an initial scheduling order,

see Fed. R. Civ. P. 16(b), closing discovery as of November 18,

2010. When the defendants' lead trial attorney encountered a

serious emergency, the district court, without objection, reset the

close of discovery to January 28, 2011.

In November, the defendants served the plaintiffs with

interrogatories and requests for production of documents. See Fed.

R. Civ. P. 33, 34. Although sent that month both by facsimile and

certified mail, the mailed copy was not received by the plaintiffs

until December 20.1

As the new discovery closure date approached, all of the

parties sought to extend the deadline. These requests were driven

primarily by the involvement of the plaintiffs' counsel in a

criminal trial (a circumstance that made it difficult to take

depositions during the month of January). The district court

obliged, extending the discovery closure date to February 28, 2011.

On February 24, the plaintiffs moved to extend this

deadline for an additional thirty days. They represented that

their lawyer had been busy and had no free time to devote to their

case. They attached to their motion a letter from defense counsel

The parties dispute whether the facsimile transmission was 1

received earlier. This dispute is not material to the issues on

appeal and, thus, we leave it unresolved.

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stating that the defendants did not object to the requested

extension. The final paragraph of this letter caught the court's

attention. It noted that the plaintiffs had yet to respond "to the

interrogatories and request for production of documents that were

sent . . . several months ago" even though the response period

prescribed by the Civil Rules had long since passed. See Fed. R.

Civ. P. 33(b)(2), 34(b)(2)(A).

Alerted to a delay in the discovery process, the court

entered a pointed order that pushed back the discovery closure date

to March 25. However, the court embellished the extension with an

aposematic warning:

Plaintiffs will provide the answers to all

outstanding interrogatories and requests for

production of documents no later than February

28, 2011. Plaintiffs are precluded from

raising any objection to any question in any

interrogatory or any request for production of

documents. . . . [P]laintiffs' [failure] to

answer the interrogatories and requests for

production of documents by, February 28, 2011,

will result in the dismissal of the suit, with

prejudice.

February 28 came and went without any discernible

progress on the discovery front. On March 1, the defendants filed

an informative motion, apprising the district court that the

plaintiffs had neither answered the interrogatories nor produced

the documents. Two days later, the plaintiffs filed an opposition,

which accused the defendants of discovery misconduct and

represented that the interrogatory answers and requested documents

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would be supplied within the next ten days. The opposition

indicated that the reason for the delay was Mulero's need to "rest

for [a] few days" after her "exruciating" February 28 deposition.

The district court took the plaintiffs at their word and

extended the deadline for compliance by ten days. Its order

provided that:

Plaintiffs will answer any outstanding

interrogatories and produce all documents

requested no later than March 14, 2011. NO

EXTENSIONS WILL BE ALLOWED. No objection to

any interrogatory or request for production of

documents will be allowed. Plaintiffs have

waived any and all objections.

In addition, the court repeated its earlier admonition that

noncompliance would lead to dismissal of the case.

This deadline, like the previous deadlines, passed

without any sign of compliance by the plaintiffs. On March 16, the

defendants filed a second informative motion, recounting that the

interrogatories remained unanswered and that the documents had not

been produced. The next day the court, exercising its authority

under Federal Rule of Civil Procedure 16(f)(1)(C), dismissed the

action with prejudice. Mulero-Abreu v. P.R. Police Dep't, 272

F.R.D. 313, 315 (D.P.R. 2011).

A week later, the plaintiffs moved for reconsideration. 

They attached to their motion some correspondence that their lawyer

had sent to defense counsel, including two letters discussing the

discovery materials. The first, sent in January, stated

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conclusorily that the interrogatory answers were contained in

Mulero's deposition, thus rendering the interrogatories repetitive

and onerous. The second, sent in February, reiterated that view

and added that the requested documents were contained in more than

150 pages of materials already furnished as part of the plaintiffs'

automatic disclosure obligations. See Fed. R. Civ. P. 26(a)(1). 

The answers to interrogatories and an index of the overdue

documents were attached to this motion. The district court

summarily denied the motion. A subsequent motion for

reconsideration was likewise denied. This timely appeal followed.

II. ANALYSIS

Administering a bustling docket is hard work. In

recognition of the difficulty of this task, "[t]he Civil Rules

endow trial judges with formidable case-management authority." 

Rosario-Diaz v. Gonzalez, 140 F.3d 312, 315 (1st Cir. 1998). One

source of this authority is Rule 16(f), which authorizes a district

court to issue, sua sponte, "any just orders . . . if a party or

its attorney . . . fails to obey a scheduling or other pretrial

order." Fed. R. Civ. P. 16(f)(1)(C). This provision incorporates

by reference a menu of sanctions enumerated in Rule 37, including

"dismissing the action . . . in whole or in part." Fed. R. Civ. P.

16(f)(1), 37(b)(2)(A)(v).

Of course, dismissal does not follow automatically from

every failure to abide by a case-management order. When a party

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fails to obey such an order, the selection of an appropriate

sanction is peculiarly within the province of the district court. 

In making this selection, a district judge "must work a complicated

equation, balancing fairness to the parties with the need to manage

crowded dockets." Macaulay v. Anas, 321 F.3d 45, 51 (1st Cir.

2003). Given the trial court's "intimate knowledge of the

variables that enter into the equation, appellate review of

sanctions orders is deferential." Id. (citation omitted); see

Jensen v. Frank, 912 F.2d 517, 524 (1st Cir. 1990) (holding that a

Rule 16(f) determination is reviewable for abuse of discretion). 

"[W]e focus our review particularly on whether a material factor

deserving significant weight was ignored, whether an improper

factor was relied upon, or whether when all proper and no improper

factors were assessed the court made a serious mistake in weighing

them." United States v. One 1987 BMW 325, 985 F.2d 655, 657-58

(1st Cir. 1993) (quoting Indep. Oil & Chem. Workers of Quincy, Inc.

v. Procter & Gamble Mfg. Co., 864 F.2d 927, 929 (1st Cir. 1988)) 

(alterations and internal quotation marks omitted). Absent an

error of law — and we discern none here — the party challenging a

sanction faces an uphill climb in persuading a reviewing court that

the trial court abused its discretion. Id. at 657.

Against this backdrop, we take the measure of the

plaintiffs' asseverational array. The common thread that runs

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throughout their claims is their strident criticism of the

defendants' attorneys.

To begin, the plaintiffs point out that opposing counsel

did not attach a certification of good-faith attempts at resolution

to either of their informative motions. This is true as far as it

goes — but it does not get the plaintiffs anywhere. Although both

the Civil Rules and the district court's local rules require a

party filing a motion to compel discovery to attach a certification

that a good-faith effort has been made to resolve the discovery

dispute without judicial intervention, see Fed. R. Civ. P.

37(a)(1); D.P.R. Civ. R. 26(b), the defendants did not file any

motions to compel. Rather, the seminal filing was the plaintiffs'

request for an extension, which contained a letter that prompted

the court to act sua sponte. The defendants' subsequent filings

simply notified the court that the plaintiffs had not met

successive court-imposed deadlines. There is no requirement in the

Civil Rules, the local rules, or elsewhere that a party must attach

a certification of good-faith attempts at dispute resolution to an

informative motion.2

This is not merely a matter of nomenclature. Neither of the 2

defendants' informative motions asked the court for an order

compelling the plaintiffs to make discovery. And even though their

second motion requested an order of dismissal for the plaintiffs'

failure to comply, its primary function was to inform the court

that the plaintiffs had missed yet another deadline.

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More broadly, the plaintiffs denigrate opposing counsel

for supposedly acting in bad faith throughout the discovery

process. These animadversions do not advance their cause. While

it is axiomatic that parties must act in good faith during

discovery, see, e.g., Fed. R. Civ. P. 26(g)(1), the plaintiffs have

not explained how the defendants' bad faith bears any relationship

to their own refusal to obey the district court's serial orders. 

In law as in life, two wrongs do not make a right.

Relatedly, the plaintiffs contend that the defendants

intentionally misrepresented to the district court that the

interrogatories had been outstanding since November of 2010 when in

reality they were not received until sometime in December. The

plaintiffs assert that this misrepresentation was material to the

court's decision to dismiss the case. This assertion is baseless.

The record reflects that the defendants accurately

explained the entire chronology of events in their first

informative motion. There was no misrepresentation, and the court

was fully aware of the chronology when it ruled. Moreover, the

plaintiffs were given ample time to effect discovery. Their

attempt to link the delay in receiving the mailed copy of the

interrogatories to their failure to comply borders on the

chimerical.

Taking a different tack, the plaintiffs maintain that

they fulfilled their discovery responsibilities when they sent

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letters to the defendants characterizing the interrogatories and

requests for production as repetitive and onerous and informing the

defendants that the information sought was contained in Mulero's

deposition and in a trove of documents previously produced. The

plaintiffs claim that in light of these letters, the defendants

acted in bad faith by telling the court that the plaintiffs were

derelict in their discovery obligations. Because the defendants

never made the court aware of these assertions, this thesis runs,

the court mistakenly dismissed the action.

This thesis stands logic on its ear. The plaintiffs

provide no coherent explanation as to why it was the defendants'

burden to make the plaintiffs' arguments for them. The plaintiffs

never told the court at any time before the order of dismissal

entered that they believed that they had satisfied their discovery

obligations, and their actions belie this newly advanced position. 

Long after sending these letters, the plaintiffs offered excuses

for noncompliance and promised the court that the overdue materials

would be forthcoming. Given this sequence of events, it strains

credulity to imagine that even the plaintiffs believed that the

letters were sufficient to effect compliance.

If more were needed — and we do not think that it is —

the responses contained in the letters were manifestly inadequate. 

To "answer" the interrogatories, the plaintiffs merely referred the

defendants to Mulero's deposition. But answering interrogatories

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simply by directing the proponent to rummage through other

discovery materials falls short of the obligations imposed by Rule

33. See, e.g., Union Pac. R.R. v. Larkin, 229 F.R.D. 240, 243

(D.N.M. 2005); Int'l Mining Co. v. Allen & Co., 567 F. Supp. 777,

787 (S.D.N.Y. 1983). The plaintiffs' blanket objection to all of

the interrogatories — including those asking for basic information

— is equally impuissant. See Fed. R. Civ. P. 33(b)(3)-(4)

(explaining that "[t]he grounds for objecting to an interrogatory

must be stated with specificity" and all interrogatories must be

answered to the extent they are not objectionable); see also

Josephs v. Harris Corp., 677 F.2d 985, 991-92 (3d Cir. 1982)

(concluding that the plaintiff's broad objection to all

interrogatories failed to meet the requirements of the Civil

Rules).

The same flaws mar the plaintiffs' invitation that the

defendants sift through documents previously delivered in search of

the documents that they requested under Rule 34. At the very

least, the defendants were entitled to responses or objections

addressed to "each item or category [of items]." Fed. R. Civ. P.

34(b)(2)(B). The plaintiffs never supplied such an index,

suggesting instead that the defendants find the needle in the

haystack.

Next, the plaintiffs argue that the sanction is too

harsh. They insist that the surrounding circumstances cut in favor

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of a milder sanction because they were generally compliant with the

court's schedule and they had good excuses for missing the

discovery deadlines.

The premise on which this argument rests is correct. The

totality of the circumstances should be considered when assessing

the appropriateness of a discovery sanction. HMG Prop. Investors,

Inc. v. Parque Indus. Rio Canas, Inc., 847 F.2d 908, 917 (1st Cir.

1988). But the conclusion that the plaintiffs would have us draw

from this premise does not follow. We explain briefly.

The fact that the plaintiffs met other deadlines in the

course of the case does not inoculate them against the sanction of

dismissal. Their failure to provide the required responses to both

interrogatories and requests for production was in flagrant

disregard of multiple court orders. We have said before, and today

reaffirm, that "[i]f [the court] sets a reasonable due date,

parties should not be allowed . . . painlessly to escape the

foreseeable consequences of noncompliance." Mendez v. Banco

Popular de P.R., 900 F.2d 4, 7 (1st Cir. 1990).

Here, moreover, the plaintiffs were twice explicitly

warned that if they neglected to comply by a specified date, their

case would be dismissed. The plaintiffs turned a deaf ear to those

warnings. They did so at their peril and they cannot now be heard

to say that they were somehow blindsided because the district court

said what it meant and meant what it said.

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At any rate, the plaintiffs' entreaty that they had good

reasons for missing the court-imposed deadlines is unpersuasive. 

They claim that Mulero was too tired after her emotionally draining

deposition to provide responses and that their attorney was too

busy to help. Neither claim offers them much shelter.

Mulero's deposition was taken on February 28 and the

plaintiffs have not explained how that could have affected Mulero's

ability to comply in January (when the responses were originally

due). Nor have they explained (say, by proffering a physician's

report) how Mulero's alleged incapacity could have lasted for two

full weeks after the deposition (when the final deadline expired). 

Finally, they have not explained why they missed the last deadline

— a deadline that they had pronounced themselves able to meet.

The demands of the attorney's other clients do not

improve the picture. It is settled beyond hope of contradiction

that "[t]he fact that an attorney has other fish to fry is not an

acceptable reason for disregarding a court order." Chamorro v.

Puerto Rican Cars, Inc., 304 F.3d 1, 5 (1st Cir. 2002).

The plaintiffs fall back on the hoary principle that

"[d]ismissal with prejudice is a harsh sanction which runs counter

to our strong policy favoring the disposition of cases on the

merits." Figueroa Ruiz v. Alegria, 896 F.2d 645, 647 (1st Cir.

1990) (citations and internal quotation marks omitted). But even

though the sanction of dismissal is reserved for a limited number

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of cases, it must be available so the trial courts may punish and

deter egregious misconduct. See Goldman, Antonetti, Ferraiuoli,

Axtmayer & Hertell, a P'ship v. Medfit Int'l, Inc., 982 F.2d 686,

692 (1st Cir. 1993). "[D]isobedience of court orders is inimical

to the orderly administration of justice and, in and of itself, can

constitute extreme misconduct." Young v. Gordon, 330 F.3d 76, 81

(1st Cir. 2003). This is such a case: the plaintiffs, disregarding

explicit warnings, failed to comply with a succession of court

orders; other time parameters were pushed back as the court waited

in vain for the plaintiffs to comply; and the defendants' trial

preparations were stalled. Under these circumstances, dismissal

was a condign sanction. See id. at 83. 3

This leaves only the district court's rejection of the

motions for reconsideration. A district court's decision to deny

a motion for reconsideration engenders review for abuse of

discretion. Bennett v. Saint-Gobain Corp., 507 F.3d 23, 34 (1st

Cir. 2007). For such a motion to succeed, "the movant must

demonstrate either that newly discovered evidence (not previously

available) has come to light or that the rendering court committed

a manifest error of law." Palmer v. Champion Mortg., 465 F.3d 24,

30 (1st Cir. 2006). We already have considered the materials that

the plaintiffs attached to their motions for reconsideration and

The fact that the plaintiffs furnished the requested 3

material a week after the case was dismissed does not change this

calculus. See Young, 330 F.3d at 83.

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found them wanting. Similarly, the record contains no sign of

legal error. Thus, the denials of reconsideration were well within

the compass of the trial court's discretion.

III. CONCLUSION

We need go no further. The district court waited

patiently for the overdue discovery, extended the due date on more

than one occasion, and twice warned the plaintiffs that it would

dismiss the case if they continued to stonewall. The court set the

last deadline in conformity with the plaintiffs' volunteered

statement of how long it would take them to comply. When that

statement proved to be an empty promise, the court dismissed the

case. For the reasons elucidated above, we see neither error nor

abuse of discretion in that action.

Affirmed.

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