Ware v. Rodale Press, Inc.

• Decision Date: 28 February 2003
• Docket Number: No. 02-1533.,02-1533.
• Citation: 322 F.3d 218
• Parties: Reginald D. WARE; Ware Communications, Inc. v. RODALE PRESS, INC. Ware Communications, Appellant
• Court: U.S. Court of Appeals — Third Circuit

Page 218

322 F.3d 218

Reginald D. WARE; Ware Communications, Inc. v. RODALE PRESS, INC. Ware Communications, Appellant

No. 02-1533.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit LAR 34.1(a) January 21, 2003.

Filed February 28, 2003.

Paul B. Birden, Jr., Voorhees, NJ, for Appellant.

Patrick J. Reilly, Paul A. McGinley, Gross, McGinley, LaBarre & Eaton, LLP, Allentown, PA, for Appellee.

Before BECKER, NYGAARD, and AMBRO, Circuit Judges.

OPINION OF THE COURT

AMBRO, Circuit Judge.

Appellant Ware Communications, Inc. ("WCI") sued Appellee Rodale Press, Inc. ("Rodale") for, inter alia, breach of contract. After repeated noncompliance with discovery requests and orders, the District Court sanctioned WCI by precluding it from introducing any evidence of damages at trial. Because this made it impossible for WCI to establish a required element of its breach of contract claim, the District Court dismissed the claim. WCI appeals both the sanction and dismissal. We have jurisdiction pursuant to 28 U.S.C. § 1291, and affirm.

I. BACKGROUND AND PROCEDURAL HISTORY

This case has a lengthy procedural history, much of which is not implicated by this appeal. The relevant events are as follows. In 1992, Reginald Ware and his publishing company, WCI, approached Rodale, also a publishing company, with an idea for a magazine. The parties in December 1993 agreed to publish Rodale's Heart & Soul, a healthy lifestyle magazine directed to African-American women. The operative agreements granted Rodale termination rights upon thirty days notice if advertising sales did not meet budget projections. On July 25, 1995, Rodale informed WCI that it was terminating the contract on this ground. It also advised WCI that a Rodale employee had brought sexual harassment allegations against Reginald Ware personally.

WCI and Ware sued Rodale in 1995 in the Eastern District of Pennsylvania for fraudulent misrepresentation, breach of contract, and invasion of privacy. Rodale counterclaimed for sexual harassment. Judge Robert S. Gawthrop III dismissed the fraudulent misrepresentation and breach of contract claims. The parties went to trial on the remaining claims in October 1997, but after the close of Plaintiff's case-in-chief the District Court granted judgment as a matter of law to Rodale on Ware's invasion of privacy claim. Rodale's sexual harassment counterclaim was submitted to the jury, which found in favor of Ware. WCI and Ware appealed the District Court's dismissal of the breach of contract claim, and our Court reversed and remanded this claim.

On remand, WCI and Ware filed an amended complaint (to be precise, the third amended complaint) alleging breach of contract, misappropriation, breach of the duty of good faith and fair dealing, and breach of fiduciary duty.¹ In May 2000 the Court dismissed with prejudice all except WCI's breach of contract claim.²

Even for that remaining claim, there was pretrial wrangling. On June 8, 2000, Rodale forwarded to WCI a Request for Production of Documents and Interrogatories, which included a request for substantiation of WCI's damages calculation. Responses were due one month later. WCI did not respond. On August 24, 2000, one and a half months after the response was due, Rodale filed with the District Court a Motion to Compel. WCI again did not respond.

On September 19, 2000, the District Court entered an Order directing WCI to respond to the June 8, 2000, discovery request and interrogatories within fifteen days. Once more, WCI did not respond within the required time period. Two days after the deadline had lapsed, WCI sought an extension of time. On October 16, 2000, the parties entered into a Stipulation that extended to October 18, 2000, the deadline for WCI to answer Rodale's outstanding discovery requests. The Stipulation provided that "[s]hould the Plaintiff fail to provide such full and complete responses, the parties agree that the Plaintiff shall be prohibited from presenting any evidence in support of its claim at the time of trial of the within action." WCI timely replied to the Stipulation, but offered the following statement as to its damages calculation: "Plaintiff has not completed its determination of damages. Specifically, documents that are relevant to Plaintiff's calculation are in the possession of Defendant. Plaintiff will seek to obtain the documents through discovery."

On October 31, 2000, the District Court entered a scheduling Order that provided for discovery to close on January 8, 2001, all dispositive motions to be filed by January 15, 2001, and the case put into the trial pool on January 29, 2001. On November 21, 2000, Rodale sent a letter to WCI indicating dissatisfaction that it had not yet received an adequate damages calculation. Rodale noted that the alleged breach of contract occurred over five years previously. Thus Rodale expected that WCI by this point knew what damages it had suffered, and "therefore request[ed] that [WCI] forthwith provide answers to the interrogatories concerning damages, and provide any documentation you have to support that." If not, Rodale indicated that it would "file a motion in limine at the time of trial asking the Court to prohibit the introduction into evidence of any damages testimony or other evidence." Yet again WCI did not respond.

On January 7, 2002 — the eve of the trial (set to begin January 14, 2002) and one year (minus one day) after discovery had closed — WCI filed a pretrial memorandum that included a damages calculation. Rodale responded by a motion in limine to preclude WCI from introducing any evidence of damages at trial. The trial was postponed, and on January 23, 2002, the District Court granted Rodale's motion. Because WCI thus was precluded from introducing any evidence in support of a necessary element of its breach of contract claim, the District Court dismissed the claim. Ware Communications, Inc. v. Rodale Press, Inc., 2002 WL 89604 (E.D.Pa. Jan.23, 2002). This appeal followed.

II. EXCLUSION OF EVIDENCE AS A SANCTION

Federal Rule of Civil Procedure 37(b)(2)(B) authorizes a district court to sanction a party's failure to comply with a discovery order by "prohibiting that party from introducing designated matters into evidence." We previously have noted that "[a]lthough the exclusion of evidence for violation of a discovery order is an `extreme sanction,'" a trial court's decision to do so "will not be disturbed on appeal absent a clear abuse of discretion." In re TMI Litig., 193 F.3d 613, 721 (3d Cir.1999) (internal citations omitted).

Exclusion under Rule 37(b)(2)(B) is particularly extreme when the sanction is tantamount to dismissing the claim, as it was here. In Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984), we explained:

In exercising our appellate function to determine whether the trial court has abused its discretion in dismissing ... we will be guided by the manner in which the trial court balanced the following factors ... and whether the record supports its findings: (1) the extent of the party's personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense.

(emphases omitted). See also Emerson v. Thiel Coll., 296 F.3d 184, 190-91 (3d Cir. 2002) (applying the Poulis factors). Each factor need not be satisfied for the trial court to dismiss a claim. Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir.1988). They "should be weighed by the district courts in order to assure that the `extreme' sanction of dismissal ... is reserved for the instances in which it is justly merited." Poulis, 747 F.2d at 870. And though the sanction may be extreme, the appellate court's standard of review is deferential. In Poulis, for example, "[u]nder these circumstances, although we might not have reached the same result as did this district court judge, we cannot say that the district court abused its discretion in ordering the dismissal." Id.

The District Court in this case explained its findings on each of the six Poulis factors, and concluded that:

[t]he balance weighs in favor of precluding Plaintiff's evidence on damages, thereby effectively dismissing Plaintiff's breach of contract claim against Defendant. The Court is mindful that the exclusion of evidence is an "extreme" sanction. However, "[t]he court has authority to employ the `most severe in the spectrum of sanctions provided by statute' to ensure compliance with its discovery orders and to deter all parties in this litigation from engaging in discovery misconduct." In the instant case, Plaintiff's utter failure to provide Defendant with a damages calculation until the eve of trial is inexcusable, particularly in light of the repeated requests by Defendant, Orders of this Court, and the excessive length of time provided for discovery in this case.

2002 WL 89604, at *7 (internal citations omitted). WCI argues on appeal that each of the District Court's findings — and thus its conclusion as well — constituted an abuse of discretion.

A. Extent of Plaintiff's Personal Responsibility

The District Court found that Rodale presented no evidence and made no allegation that WCI — as opposed to WCI's counsel — was responsible for the failures to meet discovery deadlines, and therefore this factor does not weigh in favor of precluding the damages evidence. Rodale counters that this finding is contradicted by the record, as Reginald Ware, the alter ego of WCI and the only plaintiff's witness to testify as to damages, refused on a number of occasions to appear for a scheduled deposition. Notwithstanding, we need not disturb the District Court's finding on this point....