Giancola v. JohnsonDiversey

PER CURIAM. This is an appeal from the district court’s dismissal of this product liability case as a sanction for plaintiffs repeated failure to show up at his scheduled depositions and to produce relevant documents requested by the defense, despite warnings and, ultimately, a court order requiring him to do so. Essentially for the reasons stated by the district court in its thorough and well-reasoned 19-page decision, we affirm both the dismissal and the subsequent denial of plaintiffs motion for reconsideration. DISCUSSION We previously reserved judgment on the threshold question, flagged by the clerk’s office in an order to show cause, of whether plaintiffs appeal from the judgment was timely. In the interests of judicial economy, we now by-pass that potentially thorny issue to reach the relatively easy merits of this appeal. See Rivera-Martinez v. Ashcroft, 389 F.3d 207, 209 (1st Cir.2004), cert. denied, — U.S. —, 125 S.Ct. 2963, 162 L.Ed.2d 892 (2005). This court’s review of discovery sanctions, including the choice of sanctions, is highly deferential. See, e.g., Sheppard v. River Valley Fitness One, L.P., 428 F.3d 1, 6 (1st Cir.2005). Where, as here, the district court’s thorough and well-reasoned decision demonstrates that it applied the appropriate factors and weighed them appropriately, no abuse of discretion can be found. Id. On appeal, plaintiff does not contest the factual findings made by the district court or its conclusion that sanctions were appropriate. Rather, he focuses on the district court’s choice of dismissal as the appropriate sanction. Specifically, he argues that dismissal was excessive because plaintiffs “failure to comply [with his discovery obligations] was a product of the degenerating relationship with his attorney[,][c]ompounded by the District Court’s order perpetuating this relationship despite the obvious breakdown.” That argument is unavailing for several reasons. First, as a general matter, dismissal is an appropriate sanction for discovery violations where, as here, the district court had previously warned plaintiff that dismissal was a possible sanction, HMG Prop. Investors, Inc. v. Parque Indus. Rio Canas, Inc., 847 F.2d 908, 918 (1st Cir.1988), and plaintiffs noncompliance was not “a single isolated mishap,” id. (quotation marks and citation omitted). Second, plaintiffs attempt to blame his misconduct on his former attorney is inapt. See Link v. Wabash R.R. Co., 370 U.S. 626, 634 n. 10, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); Georcely v. Ashcroft, 375 F.3d 45, 50 (1st Cir.2004). And, third, because plaintiff did not appeal from the order requiring his counsel to remain for the duration of discovery, he cannot be heard to complain about that order. The denial of plaintiffs motion for reconsideration is also affirmed for the same reasons. In addition, to the extent that the motion for reconsideration was premised largely on challenges to the district court’s factual findings, which are not pressed in plaintiffs appellate brief, those challenges are deemed abandoned. United States v. Romain, 393 F.3d 63, 68 (1st Cir.2004), cert. denied, — U.S. —, 125 S.Ct. 2924, 162 L.Ed.2d 308 (2005). Accordingly, the district court’s judgment of dismissal and denial of plaintiffs motion for reconsideration are affirmed. See Local R. 27(c).