Muckle v. Lotus Development, 1st Cir. (1993)

USCA1 Opinion
September 7, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-1010
PAUL L. MUCKLE,
Plaintiff, Appellant,
v.
LOTUS DEVELOPMENT,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
___________________
____________________
Before
Selya, Boudin and Stahl,
Circuit Judges.
______________
____________________
Paul L. Muckle on brief pro se.
______________
Melinda Milberg and Glovsky & Associates on brief for appellee.

_______________
____________________
____________________
____________________
Per Curiam.
__________
judgment
The appellant, Paul
Muckle, appeals from a
of the district court dismissing his complaint.
We
vacate and remand.

In August
against
(Lotus),
of
1991, Muckle
his former
employer, Lotus
in which he alleged that
rights complaint
Development Corporation
his lay-off and/or denial
permanent employment resulted from racial discrimination.
The district court concluded

threshold
it
filed a civil
standard for in
was not frivolous, see

___
the case to proceed.
that the complaint survived the

forma pauperis proceedings, i.e.,
28 U.S.C.
1915(d), and allowed
On
October 2,
conference for
1992, the
October 26 at 2:45
notified Muckle that it would

22.
district court
It is undisputed
both the deposition
pm.
On
appear at
take his deposition on October
that Muckle received
and the status
conference,
the October
26 status
Lotus moved to dismiss
his own deposition.1
notification of
conference.
Muckle
did
Muckle also did
conference.
on the basis
Civ. P. 37(d), i.e., on the ground that

attend
status
October 6, Lotus
not appear for his deposition on October 22.

not
set a
At that
of Fed. R.
Muckle had failed to
The district court, in a margin
____________________
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'
Dismiss is allowed."
motion, "Motion To
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,
conference, Muckle
document
i.e., before
filed and
the scheduled
the district court
captioned, "Petition
for Writ
the
superintendent
Institute
petition
of
the
at Concord to produce
was a boilerplate
received a
of Habeas
That document, dated October 20, asked that
Corpus."
the court direct
Massachusetts
Muckle for a
form, but at
status
Correctional
hearing.
The
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
indication that the district
conference,
there
judge had any knowledge
is
no
of the
petition prior to the status conference.

But
there
is considerably
more
to
the story.
judgment of dismissal was entered on a separate document

____________________
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.
-3-
The
and
filed on October 27,
1992, and transmitted to Muckle
last known pre-incarceration address.

long
at his
On December 28, 1992,
after the 30 day period for filing appeals had expired,
see Fed. R. App. P. 4(a)(1), Muckle filed a notice

in the district
court
court.
On review of the appeal papers, this
sua sponte asked Muckle
should not
be dismissed
then asked this
of appeal
court to
to show cause
for lack
why the appeal
of jurisdiction.
treat his notice
Muckle
as timely
under
subsection (a)(6) of the rule which allows the district court

to reopen the time to appeal
then
asked
the
district
under certain circumstances. We

court to
reopening provision had been
determine
satisfied.
whether
the
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
applying sanctions
very substantial
for failure
discretion in
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
incarceration or
brought to the
to appear at a
deposition where illness,
some other powerful excuse

court's attention
in a timely
existed and was

fashion.
In
this
instance, however,
Muckle's failure
to appear
at the
-4-
deposition
or status
hearing--despite notice
of both--does
not stand alone.

It
appears
from
the
record
that
Muckle
filed
complaint on or about August 21, 1991, but did not

complaint
until January
period normally
7,
1992, well
fixed for service.2
serve its answer,
after
When
his
serve the
the 120
Lotus sought
day
to
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
incarceration
whatever
in
three
months'
troublesome because
the
litigation
later.
the magistrate
This
judge had
prior
to
his
inaction
is
earlier fixed
October 31, 1992, as the cut-off date for discovery.

It
also
appears
that
Muckle was
advised
October 6, 1992, deposition notice scheduling
of
Lotus'
his deposition
for
October 22, 1992,
conference scheduled
explanation that he
thereafter
some
and of the
for October
district court's pretrial

26, 1992.
was sentenced on
Muckle's later
October 16, 1992,
and
imprisoned in MCI Concord does not explain why at
point between October 6
and October 26
Muckle did not
____________________
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.
-5-
notify the court and Lotus that he might or would not be able
to
attend either of
filings
do indicate
the scheduled functions.

the
difficulties of
Although his
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.
district
Against this background, we do not think that the

court could be held to have abused its considerable
discretion
Muckle's
if it
dismissed
incarceration.
attend the
the case
despite knowledge
Rather, dismissal
deposition--or at least
for failure
to notify the
of
to
court and
Lotus in advance that attendance might be or was impossible-would represent
a permissible
taking seriously
or
the
judgment that Muckle
his responsibilities to
defendant
in
litigation
was not
the district court
that
he
himself
had
instigated.
Nevertheless,
informed
we think
exercise of
the
that Muckle
is entitled
district court's
to an
discretion--and
that discretion belongs to the district court and not to us-before the extreme
visited on
penalty of a dismissal
him based on a
with prejudice is
failure to appear.
Based on the
complaint alone, the district court has already said that the
-6-
allegations
cannot be
deemed frivolous.
While
Muckle has
been somewhat careless and dilatory, our review of the record
indicates that he has partial

of the
explanations for at least some
deficiencies and he is
a pro se litigant.
asked the district judge only
Since we
for a finding on reinstatement
of the appeal, he may well have thought it beyond his mandate

to
reconsider
formally
the
asked
dismissal.
the
Indeed,
district
court
Muckle
to
has
never
reconsider
its
dismissal.
We think that the fair and efficient course is to vacate
the
judgment
district
dismissing the
court
to exercise
dismissal is warranted
prejudice,
any hearing
its
and
in light of its
to
discretion
and, if so,
circumstances including
is now ample
case
remand for
as to
whether
whether with or
without
current knowledge of
Muckle's incarceration.
and the district court

or entertain further
the
all of the
The record
is not obliged
submissions before
to have
making
its final determination.3

Vacated and remanded.
____________________
No costs.
____________________
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
_______
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.
-7-

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USCA1 Opinion

Melinda Milberg and Glovsky & Associates on brief for appellee.

The appellant, Paul

Muckle, appeals from a

of the district court dismissing his complaint.

vacate and remand.

in which he alleged that

permanent employment resulted from racial discrimination.

The district court concluded

was not frivolous, see

the case to proceed.

that the complaint survived the

1915(d), and allowed

notified Muckle that it would

both the deposition

take his deposition on October

that Muckle received

and the status

Lotus moved to dismiss

his own deposition.1

Muckle also did

Civ. P. 37(d), i.e., on the ground that

not appear for his deposition on October 22.

Muckle had failed to

The district court, in a margin

Rule 37(d) states, in pertinent part:

October 26, endorsed Lotus'

Judgment entered by separate document,

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

the district court

That document, dated October 20, asked that

the court direct

the bottom, Muckle

handwrote the following:

and his prison address at MCI Concord.

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

indication that the district

judge had any knowledge

petition prior to the status conference.

judgment of dismissal was entered on a separate document

filed on October 27,

1992, and transmitted to Muckle

last known pre-incarceration address.

On December 28, 1992,

after the 30 day period for filing appeals had expired,

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

On review of the appeal papers, this

sua sponte asked Muckle

then asked this

why the appeal

treat his notice

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

under certain circumstances. We

reopening provision had been

district court has

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

discretion might be strained by a dismissal based solely on a

deposition where illness,

some other powerful excuse