[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
For The FIRST CIRCUIT
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No. 93-1038
HERBERT H. NAIDICH,
Plaintiff, Appellant,
v.
THE MITRE CORPORATION & BARRY M. HOROWITZ,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
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Before
Torruella, Cyr and Boudin,
Circuit Judges.
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Herbert H. Naidich on brief pro se.
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David J. Kerman, Herbert L. Holtz and Ropes & Gray, on brief for
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appellees.
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June 11, 1993
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Per Curiam. The appellant, Herbert H. Naidich, has
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appealed the denial of his "motion to reopen" a district
court order dismissing his lawsuit for failure to prosecute
and failure to attend a court session. In the absence of any
designation to the contrary, we treat the court's dismissal
as a dismissal with prejudice. Velazquez-Rivera v. Sea-Land
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Serv., Inc., 920 F.2d 1072, 1075 (1st Cir. 1990). Although
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such a dismissal is a harsh sanction, we conclude that it was
within the court's permissible discretion in this case.
The gist of the matter is briefly stated. On October 7,
1992, two years after the start of this age discrimination
suit, defendants filed a substantial motion for summary
judgment. The district court on October 13, 1992, issued an
order setting a scheduling conference for October 23 pursuant
to Fed. R. Civ. P. 16(b) and D. Mass. Loc. R. 16.1. The
order specified that its provisions relating to preparation
for the conference were of the utmost importance. By cross
reference, it noted that sanctions including dismissal were
authorized for failure to comply. An opposition to
defendants' motion was due under the governing rules by
October 21.1
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1. We reject Naidich's suggestion that the dismissal in this
case was pursuant to D. Mass. Loc. R. 41.1(b), as the case
was not on any "dismissal calendar," as referenced in that
rule.
Naidich neither appeared at the scheduling conference
nor filed a timely opposition to the summary judgment motion.
When Naidich did not appear, the district court dismissed the
case. Naidich then filed a motion to reopen, but he did not
adequately explain his failure to attend the scheduling
conference whose importance had been plainly stressed. Nor
did he adequately explain his failure to file a timely
opposition to the motion for summary judgment. It appears
that Naidich's failure to appear may have been related to
disagreements with defense counsel about the preliminary
steps but there is no doubt that Naidich knew of the
scheduled conference and disregarded that obligation.
There is ample authority for dismissal where court
ordered deadlines or other obligations are ignored by
litigants, Fed. R. Civ. P. 41(b), Link v. Wabash R.R., 370
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U.S. 626, 630-31 (1962), and case precedent sustaining such
dismissals as well. Figueroa Ruiz v. Alegria, 896 F.2d 645,
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649 (1st Cir. 1990) (dismissal where plaintiffs were guilty
not only of simple delay but of disobedience of a court order
as well); Zavala Santiago v. Gonzalez Rivera, 553 F.2d 710,
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713 (1st Cir. 1977) (dismissal where plaintiffs disregarded
court-ordered deadlines and counsel failed to appear at the
pretrial conference).
Equally important, Naidich did not seek leave, at the
time he sought to reopen, to file the tardy opposition. A
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court asked to forgive procedural defaults, and the
consequent waste of its time and resources, ought at the very
least be assured that there is some purpose to reinstating
the case. Evennow we think no such purpose hasbeen made out.
Indeed, because the sanction is a severe one and Naidich
is proceeding pro se, we might find this a close case if
anything filed by Naidich in the district court demonstrated
a substantial defense to the summary judgment motion. But
even now on appeal -- and appeal is too late -- Naidich makes
only conclusory and unsupported assertions that, except for
the defendants' description of the company, every other
statement is "untrue" and defendants' documents are
"forgeries" and "deceptions." Given defendants' quite
thorough and well-documented affidavits -- which strongly
indicate that Naidich's discharge was due to performance and
not age -- Naidich's epithets are of no weight. See
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generally Teamsters, Chauffeurs Local No. 59 v. Superline
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Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992) (in order to set
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aside a judgment, a movant must at least establish, by more
than a purely conclusory allegation, that it possesses a
potentially meritorious claim).
There was no abuse of discretion either in dismissing
this lawsuit or in denying the motion to reopen. The order
of the district court is, therefore, affirmed. Naidich's
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"motion to compel," filed in this court and which asks for
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the imposition of sanctions, is denied.
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