DiGregorio v. First Rediscount Corp.

Decision Date19 December 1974
Docket NumberNo. 74-1118,74-1118
PartiesElsie A. DiGREGORIO, Administratrix of the Estate of Daniel S. DiGregorio, Deceased, Appellant, v. FIRST REDISCOUNT CORPORATION.
CourtU.S. Court of Appeals — Third Circuit

James E. Beasley, Beasley, Hewson, Casey, Kraft & Colleran, Philadelphia, Pa., for appellant.

William Prickett, Prickett, Ward, Burt & Saunders, Wilmington, Del., for appellee.

Appeal from the United States District Court, District of Delaware (Civil No. 4618).

Before ALDISERT, GIBBONS and ROSENN, Circuit Judges.

OPINION OF THE COURT

ROSENN, Circuit Judge.

This appeal questions the appropriateness of a sanction dismissing an action for failure to comply with the discovery provisions of the Federal Rules of Civil Procedure and with a specific court order.

I.

Plaintiff, Elsie A. Digregorio, Pennsylvania administratrix of the estate of Daniel S. DiGregorio, deceased, appeals from dismissal of her action in the District Court of Delaware on December 11, 1973. She instituted this action on March 28, 1973 to recover damages under the Pennsylvania Survival and Wrongful Death Statutes. The complaint alleged that the defendant, a Delaware corporation, is the successor to Micro Switch, Inc., an Illinois corporation, and that on or about March 29, 1972, the plaintiff's decedent 'suffered severe and painful injury and death as a result of an unreasonably dangerous and defective micro switch which had been manufactured by Micro Switch, Inc.' 1

Defendant filed its answer on April 23, 1973, pleading ignorance to all the allegations in the complaint except those relating to the defendant, and on April 24, 1973, filed interrogatories. The following day, defendant served notice to take plaintiff's deposition on Monday, June 18, 1973. On May 3, 1973, defendant served a request for production within thirty days of decedent's federal income tax returns for the years 1968 to 1972, inclusive. On Friday, June 158 1973, twenty-two days after the answers or objections to the interrogatories were due, defendant's counsel telephoned plaintiff's Philadelphia counsel to inquire about the answers to the interrogatories and was informed that a copy of unexecuted, unsworn answers would be mailed to him. He received the answers the next day (Saturday) and, on the following Monday, proceeded with the scheduled deposition.

Shortly thereafter, on June 20, 1973, defendant moved under rule 37 of the Federal Rules of Civil Procedure for an order compelling complete and responsive answers to the interrogatories. 2 Defendant filed a brief in support of its motion on June 29, 1973, but was unable to reach agreement on a briefing schedule with plaintiff's local Delaware counsel, who disclaimed authority to agree to the proposed schedule and referred defendant's counsel to plaintiff's Philadelphia counsel who actually was handling the matter. Defendant's counsel objected to dealing directly with out-of-state counsel and requested the district court to call a conference to set a briefing schedule. An associate of plaintiff's Philadelphia counsel, personally unfamiliar with the case, attended the conference on August 13, 1973, and advised the court that he was unable to understand why a brief had not been submitted since a prepared draft was in the file. The district court fixed a briefing schedule by order, and oral argument on the motion finally was heared on August 30, 1973.

In a memorandum and order of September 5, 1973, the district court found:

(1) Plaintiff's failure to answer interrogatories 1, 2, 6, 36 and 56 was unjustified.

(2) Plaintiff failed to object to interrogatories 13, 20, 21, 24, 25, 27, 42, 43, 46 and 65, and plaintiff's answers to these interrogatories were 'inadequate or unresponsive to the questions asked.'

(3) All plaintiff's answers failed to conform to the requirements of rule 19 of the Civil Rules of the United States District Court for the District of Delaware. 3

(4) Plaintiff's opposition to the motion to compel adequate answers was unjustified.

The district court therefore directed plaintiff on or before September 25, 1973, to file complete and responsive answers to defendant's interrogatories and to pay defendant's expenses of $400.00, including an attorney's fee, incurred in obtaining the order.

Having received neither the answers compelled by the district court nor payment for the expenses awarded on the motion, defendant moved on September 27, 1973, for dismissal of plaintiff's action under rule 37 or other appropriate sanctions. On October 29, 1973, two days before argument on the motion for sanctions, the district court received a check for defendant's expenses payable to the order of the clerk. Since the order of September 5, 1973 required payment directly to defendant or its counsel, the check was returned and payment was not made until the hearing.

At the close of the hearing, the district court concluded 'on the record and argument that no justification had been shown for failure of the plaintiff and her attorneys to abide by the Rules of Federal Civil Procedure or this Court's order of September 5 and that sanctions appeared justified under Rule 37(b)(2).' The district court noted that 'plaintiff's attorneys did not realize the seriousness of their failure to follow the discovery rules and orders of this Court.' Rather than immediately dismiss the action, however, the district court gave plaintiff another opportunity to bring herself into compliance with the September 5 order and the rules of discovery. Convinced that noncompliance was more the fault of her attorneys than the plaintiff, the district court communicated with plaintiff personally in the form of an order to show cause sent directly to her and to the attorneys who had introduced her to Philadelphia counsel in this matter. Another hearing was set to consider the order to show cause and defendant's motion for sanctions. The district court contemplated that, at that hearing, plaintiff might agree to removal of her present counsel as an alternative to the more severe sanction of dismissal.

Although plaintiff personally did not attend the hearing, which took place on November 21, counsel submitted her affidavit to the effect that she was aware of the purpose of the present hearing; that she had been advised that the district court 'probably would' dismiss her action; that she knew she could consult with or employ other counsel; and that she was unable to further answer any of defendant's interrogatories. The district court concluded that, 'plaintiff and her attorneys at three separate hearings having been afforded the opportunity to fulfill her obligations without success, . . . injustice would result to the defendant by any further prolongation of this matter.' Accordingly, plaintiff's action was dismissed. We affirm.

II.

Plaintiff's contentions on appeal ignore the full extent of misconduct which prompted the district court to dismiss her action. Plaintiff acknowledges that answers to numerous interrogatories were found incomplete or unresponsive by the district court. However, plaintiff does not address each such answer. 4 Moreover, only in a letter submitted after briefs were filed in this court, does plaintiff make any effort to explain why sworn answers have not been filed. 5

Plaintiff first contends that she was excused from further answering interrogatories 46 and 65 because counsel for defendant reviewed certain of the decedent's income tax returns at plaintiff's deposition. Interrogatory 46 sought to elicit the amount of insurance premiums paid by the decedent and the frequency of their payment. Interrogatory 65 called for copies or outlines of the decedent's last five tax returns. Plaintiff answered these interrogatories 'See income tax returns' and 'Will be supplied,' respectively.

We note preliminarily that furnishing of the tax returns may not constitute adequate response to interrogatory 46. Assuming arguendo that it did, however, plaintiff's position lacks foundation in the record. Not only did plaintiff elect to answer certain interrogatories by supplying decedent's tax returns, but these returns were also the subject of a separate request for production. Even under plaintiff's version of the facts, the returns were made available to defendant sixteen days after their production was required and twenty-two days after the interrogatory answers were due. Moreover, the record does not support plaintiff's implied assertion that all the requested returns were produced and, in fact, the record seems to support a contrary conclusion. 6

What plaintiff fails to apprehend is that, after the district court's order of September 5, the argument that returns already had been supplied lost all significance. The district court found, appropriately we believe, that the tax returns never had been produced and that interrogatories 46 and 65 had not been answered adequately. At that point it was incumbent upon plaintiff to supply copies of the returns, whether or not plaintiff herself believed they previously had been supplied, and to make any further response necessary to a complete and responsive answer to the interrogatories. Clearly inaction was not a proper response sponse to the district court's order.

Plaintiff next contends that her answers to interrogatories 20, 21, 42 and 43 were as complete as circumstances permitted. Interrogatories 20 and 21 were multipart questions seeking details of the deceased's employment during the ten years prior to his death. The part of interrogatory 20 relating to the decedent's salary was answered, 'Income tax returns have been supplied,' an obviously inaccurate statement when made even under plaintiff's view of the facts. In answer to interrogatory 21, relating to self-employment, plaintiff 'estimated' that, on the basis of decedent's 1970 tax return, decedent earned approximately $35,000.00 from betting activities. We agree with ...

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