No. 23-1372

VIVALDI SERVICIOS DE SEGURIDAD, INC.,

Plaintiff, Appellant,

v.

MAISO GROUP, CORP.; JORGE W. MAISONET-RIVERA; WILLIAM MAISONET-RODRIGUEZ; EVELYN RIVERA; CONJUGAL PARTNERSHIP OF WILLIAM MAISONET AND EVELYN RIVERA; TRANSCRIPCIONES JOREV, INC.; INOPALT, INC.; KITCOR, INC.; LENDING EASE, CORP.; CORPORATION A; INSURANCE COMPANY A; JOHN DOE; JANE DOE,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. William G. Young, U.S. District Judge]

Before

Gelpí, Montecalvo, and Rikelman, Circuit Judges.

José B. Vélez Goveo and Vélez & Vélez Law Office on brief for appellant. Ramón Muñiz-Santiago on brief for appellee.

February 14, 2024

 Of the District of Massachusetts, sitting by designation. GELPÍ, Circuit Judge. May a district court dismiss a case for counsel's unexcused failure to appear at the final pretrial conference when this is the first and only instance of non-compliance and the district court did not consider a lesser sanction? Under our precedent, the answer is ordinarily, "No." Yet that is what the district court did here. We find such a draconian sanction unwarranted and thus vacate the dismissal order.

I. BACKGROUND

The procedural timeline leading to dismissal is uneventful. Plaintiff filed a complaint alleging RICO violations, pursuant to 18 U.S.C. §§ 1962 and 1964, and related state-law claims on February 6, 2018. Defendants moved to dismiss shortly after, and the district court agreed; however, it granted the motion without prejudice, permitting Plaintiff to file an amended complaint. After Plaintiff did so, the case proceeded to discovery, and the district court resolved the few discovery issues that arose before it.

Up until the final pretrial conference, the district court -- as evidenced by the docket -- did not note a single non-compliant act by any of the parties. At said conference, held by video teleconferencing on February 23, 2023, Plaintiff's counsel inexcusably failed to appear. In a succinct minute entry, the district court noted, "Case Called. Defense counsel present.

- 2 - Plaintiff's counsel does not appear. Case is non-suited[] for proceedings held before Judge William G. Young."

On March 23, 2023, Plaintiff's counsel filed a motion to clarify the district court's decision, asking if, in fact, the district court dismissed the case outright. In this motion, Plaintiff's counsel informed the district court that he "was unable to connect for reasons [outside] of [his] control." On March 27, 2023, the district court denied the same via minute entry:

Motion denied. There is nothing to clarify. This case was dismissed due to the failure of plaintiff's counsel to appear at a duly scheduled final pretrial conference notwithstanding repeated attempts to contact him. If this motion was intended to be treated as a motion for reconsideration, it is denied as wholly unsupported. The district court then entered judgment against Plaintiff, and this timely appeal followed.

II. ANALYSIS

We review Federal Rule of Civil Procedure 41(b) dismissals under an abuse-of-discretion standard. U.S. ex rel. Nargol v. DePuy Orthopaedics, Inc., 69 F.4th 1, 11 (1st Cir. 2023). "Within our review for