121 F.3d 503 (9th Cir. 1997), 96-35043, Payne v. Exxon Corp.

Docket Nº:96-35043.
Citation:121 F.3d 503
Party Name: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.
Case Date:August 06, 1997
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 503

121 F.3d 503 (9th Cir. 1997)

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,


EXXON CORPORATION; Exxon Company USA; Exxon Shipping

Company; and VECO, Inc., Defendants-Appellees.

No. 96-35043.

United States Court of Appeals, Ninth Circuit

August 6, 1997

Argued and Submitted July 18, 1997.

Page 504

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.

Page 505

Before: WALLACE, JOHN T. NOONAN, Jr., and THOMPSON, Circuit Judges.

WALLACE, Circuit Judge:

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

Page 506

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...

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