Payne v. Exxon Corp.
| Decision Date | 06 August 1997 |
| Docket Number | No. 96-35043,96-35043 |
| Citation | 121 F.3d 503 |
| Parties | , 38 Fed.R.Serv.3d 309, 97 Cal. Daily Op. Serv. 6249, 97 Daily Journal D.A.R. 10,232 Jacqueline PAYNE; Jacob Payne; Randy W. Lowe; Ferdinand Samuel, Plaintiffs-Appellants, v. EXXON CORPORATION; Exxon Company USA; Exxon Shipping Company; and VECO, Inc., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Michael P. Guta and Daniel A. Stenson, Law Offices of John E. Hill, San Francisco, CA, and Roger Henderson, Houston & Henderson, Anchorage, AK, for plaintiffs-appellants.
Matthew D. Regan, Randall J. Weddle, Faulkner, Banfield, Doogan & Holmes, Anchorage, AK, Eliot S. Jubelirer, Stephen M. Hankins, Morgenstein & Jubelirer, San Francisco, CA, for defendant-appellee Exxon Corp.
Colleen J. Moore, Eide & Miller, P.C., Anchorage, AK, for defendant-appellee VECO, Inc.
Appeal from the United States District Court for the District of Alaska; John W. Sedwick, District Judge, Presiding. D.C. No. CV-93-00107-JWS.
Before: WALLACE, JOHN T. NOONAN, Jr., and THOMPSON, Circuit Judges.
Jacqueline Payne, Jacob Payne, Randy Lowe, and Ferdinand Samuel (plaintiffs) appeal from the district court's dismissal of their action with prejudice under Federal Rule of Civil Procedure 37(b)(2)(C). Federal jurisdiction in the district court was based upon the Jones Act, 46 U.S.C. § 688, and general maritime law. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291, and we affirm.
Plaintiffs filed this action against Exxon Corporation, Exxon Company USA, Exxon Shipping Company (Exxon), and VECO, Incorporated in September 1992. Their complaint sought damages for personal injuries allegedly sustained while working on the Exxon Valdez oil spill clean-up.
On April 27, 1993, Exxon propounded its first set of discovery requests to the plaintiffs. After more than four months elapsed without response, Exxon filed a motion to compel on September 21, 1993. Although plaintiffs provided Exxon with partial answers shortly thereafter, the district court held they were inadequate and granted Exxon's motion on October 14, 1993. VECO filed a similar motion, which the district court granted on October 8, 1993. In connection with those first motions to compel, the district court ordered plaintiffs to pay $331 to Exxon and $810 to VECO as sanctions.
Plaintiffs' counsel filed a motion to reconsider on October 28, 1993. That motion admitted that some of plaintiffs' discovery responses were incomplete, but assured the court that the plaintiffs were taking steps to acquire the necessary information within the next 30 days. The district court denied that motion as untimely.
When no supplemental responses were forthcoming, Exxon filed a second motion to compel on January 28, 1994. The district court granted that motion on February 25, 1994. The court also ordered plaintiffs to pay Exxon an additional $780 in sanctions.
On September 16, 1994, VECO filed a motion for summary judgment on all of plaintiffs' claims except for the general maritime negligence claim asserted by Randy Lowe. The district court granted that motion on October 11, 1994, after plaintiffs failed to file an opposition. We affirmed in an unpublished disposition. See Payne v. Exxon Corp., 73 F.3d 370, 1995 WL 766016 (9th Cir.1995).
Exxon served another set of discovery requests on plaintiffs on March 17, 1995. Responses to those requests were originally due on April 19, but Exxon agreed to extend the deadline until May 2, 1995. Plaintiffs did not respond to the discovery requests by that date, and Exxon filed a third motion to compel on May 12, 1995. Plaintiffs then provided partial responses, but Exxon argued to the district court that those responses were incomplete and inadequate. The district court granted Exxon's motion on June 1, 1995. The court's order directed plaintiffs to "provide full and complete responses to Exxon's discovery requests on or before seven (7) days from the date of this order" and to pay Exxon another $250 in fees as a sanction.
Dissatisfied with the responses it received from the plaintiffs, Exxon filed a motion to dismiss on July 14, 1995. The district court filed a lengthy order on October 5, 1995, conditionally denying Exxon's motion. That order described the progress of discovery to that point, specifically finding that plaintiffs had "ignored" or "failed to comply with" the court's previous discovery orders. The court also found that the plaintiffs' responses to Exxon's March 17, 1995, discovery were still "incomplete and inadequate," and that plaintiffs had not paid any of the sanctions imposed to that point. The language and tone chosen by the district court are instructive.
This court is mindful of the harsh results that may arise from the dismissal of an action for failure to comply with discovery orders pursuant to Rule 37.... However, it is well within the court's discretion to dismiss an action for the refusal of a plaintiff to comply with three separate discovery orders wherein the record is full of evasion and dilatory tactics by the plaintiff and the discovery requested is relevant to the facts at issue.
....
Here, the repeated failures of plaintiffs to produce documents, the refusal to obey court orders, and the disregard of monetary sanctions might well justify dismissing plaintiffs' case in its entirety. However, on balance, the court concludes that it would be more fitting to afford plaintiffs one last chance to comply with the court's previous orders.
On or before October 16, 1995, plaintiffs shall provide specific and detailed responses to the interrogatories served by defendant and produce any outstanding documents heretofore requested, and shall pay defendants $1,361.00, the total sum of the unpaid monetary sanctions imposed on plaintiffs. If plaintiffs do not file an affidavit attesting compliance with these requirements by the close of business on October 16, 1995, this action will be dismissed in its entirety without further notice.
Plaintiffs paid the outstanding sanctions orders, provided some additional discovery responses, and filed a Notice of Compliance on October 16, 1995. After reviewing the responses, Exxon filed an objection to the Notice of Compliance on October 25, 1995. VECO joined in the objection, and asked the district court to dismiss plaintiff Randy Lowe's claims against it pursuant to the court's October 5 order. The district court treated these objections as a renewed motion to dismiss and ordered plaintiffs to file their opposition by November 17, 1995. The court also ordered that:
Any opposition shall (1) specifically identify and provide as attachments all objections, if any, which any plaintiff made pursuant to Rule 33(b) or Rule 34(b), F.R. Civ. P., as to any of the interrogatories or requests for production propounded by defendant Exxon which underlie the current effort by Exxon to have this action dismissed, and (2) succinctly explain for each interrogatory and request for production identified in defendant's "Discovery Non-Compliance Grid" attached as Exhibit A to docket 153 why the corresponding interrogatory answer or response to request for production as reflected or referenced in the "Notice of Compliance" at docket 152 is an adequate response under the standards of Rule 33 or Rule 34, F.R. Civ. P., and therefore in compliance with the court's order of October 5, 1995 at docket 151.
In response, plaintiffs filed an opposition which asserted that "each plaintiff believes he or she has responded to the discovery requests in as complete a manner as possible, as reflected in plaintiffs' Notice of Compliance." Plaintiffs also volunteered to submit to additional depositions, and to "meet and confer with counsel for Exxon to determine if there truly are any bits of information that Exxon is entitled to that it does not have access to." Plaintiffs' opposition did not comply with the district court's order that it specifically address each contention in the "Discovery Non-Compliance Grid."
On December 4, 1995, the district court dismissed plaintiffs' claims in their entirety. The court stated that plaintiffs
(1) have failed to respond to the court's specific concerns as outlined in the order at docket 154, (2) have failed to comply with the order at docket 151, and (3) as previously noted have failed to comply with the obligations imposed upon them as parties litigant by the Federal Rules of Civil Procedure.
Plaintiffs' behavior is contrary to the public interest in expeditious completion of litigation, interferes with the sensible management of this court's docket (to give but one example, plaintiffs are now offering long after discovery has closed to cure their failure to timely comply with their obligations by making themselves available for more depositions--docket 157 at p. 3) and prejudices the defendants. Mindful of the policy favoring resolution of disputes on the merits, this court has previously imposed lesser sanctions and afforded plaintiffs ample opportunity to correct the deficiencies in their discovery responses, but to no avail. Under the circumstances, it is appropriate to dismiss this action pursuant to Rule 37(b)(2)(C). Malone v United States Postal Service, 833 F.2d 128 (9th Cir.1987).
On appeal, plaintiffs argue that the district court abused its discretion by imposing the terminal sanction of dismissal. They "admit that early discovery responses, particularly to defendant EXXON'S First Discovery Request, were not as complete as they should have been and that they were not presented in timely fashion." Plaintiffs assert, however, that they eventually responded satisfactorily to those requests, and that "the time to seek further relief regarding them from the Court, had long since passed" when Exxon filed its motion to dismiss.
Plaintiffs also contend that they have cooperated in "extensive" discovery in ...
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