[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

United States Court of Appeals For the First Circuit

No. 00-1092

JOMAR PACKAGING CORPORATION; JOSE A. VARGAS-DE-LEON; MARIA RODRIGUEZ-TOUBENS; CONJUGAL PARTNERSHIP VARGAS- RODRIGUEZ,

Plaintiffs, Appellants,

v.

KOBEL INTERNATIONAL, INC.,

Defendant, Appellee. ____________________

JIMMY ANZAI; JANE DOE; CONJUGAL PARTNERSHIP ANZAI-DOE,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Daniel R. Domínguez, U.S. District Judge]

Before

Torruella, Chief Judge, Boudin and Lipez, Circuit Judges. Jorge Carazo-Quetglas and Toledo Toledo & Carazo-Quetglas, P.S.C. on brief for appellant. Ricardo F. Casellas and Fiddler Gonzalez & Rodriguez, LLP. on brief for appellee.

August 1, 2000 Per Curiam. The appellants, Jose Vargas-de-Leon,

d/b/a Jomar Packaging Corp., Vargas's wife, and their

conjugal relationship (hereinafter referred to collectively

as "Jomar"), have appealed a district court judgment

dismissing their complaint with prejudice for non-compliance

with discovery requests and failure timely to comply with a

court order forewarning of severe consequences for non-

compliance. The appellee, Kobel International, Inc.

("Kobel"), has moved for summary disposition of this appeal.

Upon review of the parties' brief and the record below, we

grant the motion and summarily affirm essentially for the

reasons stated by the district court in its opinion and

order, dated June 30, 1999, and its order denying

reconsideration, dated October 25, 1999.

We add only the following. In its appellate brief,

Jomar persists in contending that "extremely protracted

inaction" did not exist. But it focuses solely on what it

terms a "short" delay in responding to the court's December

-3- 15, 1998 order directing it to comply with the discovery

requests within five days of notice of the order. And, it

contends it was denied due process because, it alleges, the

district court failed to consider the reason given for this

"short" delay (clerical staff Christmas vacation). Jomar

ignores completely, however, its inaction from May 22, 1998,

the date by which it promised to provide the amended

responses, and December 31, 1998, when it provided

apparently simply a rehash of its previously inadequate

responses.1 And it ignores its inaction in failing to

respond to Kobel's repeated motions to compel. Rather than

fail to consider Jomar's excuse for the delay between

December 22 (the due date set by the December 15 order) and

December 31, the district court's opinion more reasonably

suggests that the district court found that excuse

unpersuasive and largely irrelevant in the face of Jomar's

pattern of extended delay for which Jomar had no

explanation.

1The May 22 date was, itself, an extended deadline. The responses were due March 9, 1998. That deadline was ignored by Jomar and the date for amended responses extended at Jomar's request to May 22.

-4- Jomar reiterates that it did not disobey "repeated"

court orders, but only a single court order. Apart from the

fact that a litigant has no free pass to violate one court

order, Jomar ignores that its failure timely to comply with

the court order was but part of the basis for the dismissal.

Jomar's contention that the district court was required to

provide it with a hearing prior to the dismissal of the

complaint is frivolous. Apparently, Jomar refers to an oral

hearing. But, Jomar was forewarned that failure to comply

with the discovery requests would result in "the most severe

sanctions" and it certainly had a fair chance to be heard on

the moving papers -- an opportunity which Jomar more often

than not neglected. It is rather bold to thereafter

criticize the district court for failing to summon the

parties for an oral hearing. Cf. Spiller v. U.S.V. Labs.,

Inc.,

(1st Cir. 1988) ("Lack of a hearing

does not offend due process where the plaintiff had ample

warning of the consequences of his failure to comply with

court orders.").

Finally, Jomar reiterates that the sanction of

dismissal with prejudice is harsh. While true, it is,

nonetheless, a permitted sanction. See Damiani v. Rhode

-5- Island Hosp.,

(1st Cir. 1983); Fed. R. Civ.

P. 37(b)(2)(C). Jomar contends that the district court was

obliged, and failed, to consider a lesser sanction. Jomar,

which repeatedly ignored (a) discovery deadlines, even one

to which it had agreed, and (b) motions to compel

compliance, prompting (c) a court order, which was not

timely complied with and then apparently not in an adequate

fashion, is in a poor position to argue that a lesser

sanction would have prompted it to take the appropriate

interest in litigating its case. There was no abuse of

discretion in the district court's dismissal of this

complaint. See National Hockey League v. Metropolitan

Hockey Club,

(1976) (per curiam).

The motion for summary disposition is granted and

the appeal is summarily affirmed.

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