24 F.3d 136 (10th Cir. 1994), 92-5199, Oklahoma Federated Gold and Numismatics, Inc. v. Blodgett

Docket Nº:92-5199.
Citation:24 F.3d 136
Party Name:OKLAHOMA FEDERATED GOLD AND NUMISMATICS, INC., Plaintiff-Appellee, v. Michael W. BLODGETT, Defendant-Appellant.
Case Date:May 16, 1994
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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24 F.3d 136 (10th Cir. 1994)



Michael W. BLODGETT, Defendant-Appellant.

No. 92-5199.

United States Court of Appeals, Tenth Circuit

May 16, 1994

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Jack Nordby (Ronald I. Meshbesher and James H. Gilbert, of Meshbesher & Spence, Ltd., Minneapolis, MN, with him on the briefs), of Meshbesher & Spence, Ltd., Minneapolis, MN, for defendant-appellant.

Thomas M. Affeldt (Keith O. McArtor, of Savage, O'Donnell, Scott, McNulty, Affeldt & Gentges, Tulsa, OK, with him on the brief), of Savage, O'Donnell, Scott, McNulty, Affeldt & Gentges, Tulsa, OK, for plaintiff-appellee.

Before TACHA and BARRETT, Circuit Judges, and KANE, District Judge. [*]

TACHA, Circuit Judge.

Defendant-appellant Michael W. Blodgett appeals from an order of the district court imposing sanctions against him for his failure to comply with the Federal Rules of Civil Procedure during discovery. Mr. Blodgett also challenges a jury verdict against him for fraud and conversion. We exercise jurisdiction under 28 U.S.C. Sec. 1291 and affirm.


This litigation arose out of a transaction involving a set of silver dollars known as the "John W. Highfill Collection" (the "Highfill Collection"). Oklahoma Federated Gold and Numismatics, Inc. ("Oklahoma Federated"), operated by John W. Highfill, is a wholesaler of numismatic coins. Mr. Blodgett, president of T.G. Morgan Inc. ("T.G. Morgan"), is a retailer of such numismatic coins. Mr. Blodgett represented to Mr. Highfill that he had a buyer for the Highfill Collection at a price of five million dollars. However, he said he needed a sample of coins to show the buyer in order to close the deal. Three coins from the Highfill Collection were sent to Mr. Blodgett. Mr. Blodgett's check for the coins was returned for insufficient funds and he never paid for, or returned, the coins. Mr. Blodgett sold the coins and retained the proceeds. Oklahoma Federated brought suit against Mr. Blodgett in September 1991 alleging fraud and conversion, and a jury returned a verdict in favor of Oklahoma Federated in the amount of $750,000 in compensatory and $375,000 in punitive damages.

In November 1991 Mr. Blodgett was served with requests for production of documents and interrogatories. Plaintiff's counsel requested that this discovery be completed prior to a scheduled deposition of Mr. Blodgett. The interrogatories and requests for production were never answered. On July 16, 1992 the district court ordered that all outstanding discovery be completed by July 23, 1992. This deadline was not met. Mr. Blodgett also failed to exchange a witness list and to submit an exhibit list by the required deadline.

As part of pretrial discovery, plaintiff also attempted to depose Mr. Blodgett in December 1991. This attempt was unsuccessful. In March 1992 plaintiff's counsel filed a notice to take Mr. Blodgett's deposition and then contacted Mr. Blodgett's attorney to produce Mr. Blodgett for deposition. However, due to a scheduling conflict with Mr. Blodgett's counsel, Mr. Blodgett was not deposed. Following a pretrial conference, the district court ordered Mr. Blodgett to make himself available for deposition by July 31, 1992. Mr. Blodgett called plaintiff's attorney and proposed a July 31, 1992 deposition in Minneapolis. On July 20, 1992 Mr. Blodgett sent plaintiff's attorney a fax again suggesting a July 31, 1992 deposition and indicating he would be back in touch with counsel prior to that date to confirm the availability of documents. Mr. Blodgett never contacted plaintiff's counsel about the documents. Because he had no indication of whether any documents would be available for the deposition, plaintiff's attorney informed Mr. Blodgett on July 29, 1992 that he would not be at the July 31, 1992 deposition. On the Monday prior to trial, Mr. Blodgett was in plaintiff's attorney's office in Oklahoma, yet he refused to be deposed at that time. Mr. Blodgett's deposition was never taken.

During the eleven months leading up to trial, Mr. Blodgett had four different attorneys enter appearances on his behalf. However, Mr. Blodgett appeared pro se at trial.

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Because Mr. Blodgett failed to comply with the Federal Rules of Civil Procedure during discovery, the district court imposed a sanction preventing him from presenting any witnesses, exhibits, testimony or evidence in the case. Mr. Blodgett was permitted to cross-examine plaintiff's witnesses and to use any exhibits offered by plaintiff.

Mr. Blodgett appeals the discovery sanctions and alleges the district court erred in: (1) instructing the jury on the discovery sanctions; (2) allowing the action against him to proceed contrary to Oklahoma statute; (3) not staying the case pursuant to the Bankruptcy Code; (4) finding sufficient evidence to support a conviction for fraud; and (5) awarding punitive damages.


A. Discovery Sanctions

Mr. Blodgett argues that the discovery sanctions imposed by the trial court were unwarranted, especially in light of the fact that he brought this action pro se. Mr. Blodgett was unrepresented at trial. However, during the first six months of this litigation he was represented by counsel who filed an answer and counterclaim, served discovery requests on plaintiff and attended a scheduling hearing. Other attorneys entered appearances on Mr. Blodgett's behalf prior to trial and one filed for an extension to respond to plaintiff's motion for summary judgment. Mr. Blodgett maintains, however, that his counsel did not provide him with any substantive legal service because he did not pay them.

We recognize that we construe some aspects of a pro se litigants lawsuit liberally. See Green v. Dorrell, 969 F.2d 915, 917 (10th Cir.1992) (pleadings), cert. denied, --- U.S. ----, 113 S.Ct. 1336, 122 L.Ed.2d 720 (1993). "[H]e nevertheless must follow the same rules of procedure that govern other litigants." Id. When imposing discovery sanctions against a pro se litigant, the court should carefully consider whether some sanction short of dismissal is appropriate so that the litigant does not unknowingly lose his right of access to the courts because of a technical violation. See Ehrenhaus v. Reynolds, 965 F.2d 916, 920 n. 3 (10th Cir.1992); see also Anderson v. Home Ins. Co., 724 F.2d 82, 84 (8th Cir.1983) (dismissing pro se litigant's complaint with prejudice for failure to answer interrogatories following an extension and a court order to comply). Here, Mr. Blodgett was represented for a significant portion of this litigation and his attorneys were substantially involved in the proceedings. At a July 16, 1992 hearing, the trial court ordered Mr. Blodgett to respond to the plaintiff's outstanding discovery requests and make himself available for deposition. He did not effectively do so. While Mr. Blodgett may have appeared pro se at trial, he cannot convincingly maintain that he was unaware of the need to comply with the discovery requests and deadlines or that he was unaware of the consequences of his failure to do so.

Under Fed.R.Civ.P. 37(d), if a party fails to appear for a deposition after proper notice or fails to answer interrogatories or to respond to a request for production, the court may, among other sanctions, refuse to allow the disobedient party to present evidence. Rule 16(f) permits a district court, in its discretion, to impose these same sanctions for failure to comply with a pretrial scheduling order. Fed.R.Civ.P. 16(f). "Determination of the correct sanction for a discovery violation is a fact-specific inquiry that the district court is best qualified to make." Ehrenhaus, 965 F.2d at 920. We review the imposition of discovery sanctions for an abuse of discretion, National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642, 96 S.Ct. 2778, 2780-81, 49 L.Ed.2d 747 (1976), considering the totality of the circumstances. Toma v. City of Weatherford, 846 F.2d 58, 60 (10th Cir.1988). "The district court's discretion to choose a sanction is limited in that the chosen sanction must be both 'just' and 'related to the particular "claim" which was at issue in the order to provide discovery.' " Ehrenhaus, 965 F.2d at 920-21 (quoting Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 707, 102 S.Ct. 2099, 2106-07, 72 L.Ed.2d 492 (1982)).

Mr. Blodgett has not presented any explanation for why he did not respond to the interrogatories and requests for production

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or why he did not comply with the pretrial scheduling order to provide witness and exhibit lists. Mr. Blodgett does claim that he made himself available for deposition prior to the court's scheduled deadline, but that plaintiff's counsel cancelled the deposition. While Mr. Blodgett did inform plaintiff's counsel he would be available for deposition on the final day of the court's deadline, he did not submit the documents or respond to the interrogatories necessary for plaintiff...

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