Baker, Matter of

• Decision Date: 03 October 1984
• Docket Number: No. 83-1246,83-1246
• Citation: 744 F.2d 1438
• Parties: In the Matter of the Sanction of Jay C. BAKER and Michael J. Carson, Appellants. George Roland MULVANEY, Plaintiff-Appellant, v. RIVAIR FLYING SERVICE, INC., Defendant, v. Ed DIETLIN, d/b/a Dietlin Aircraft, Third Party Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1438

744 F.2d 1438

40 Fed.R.Serv.2d 171

In the Matter of the Sanction of Jay C. BAKER and Michael J.

Carson, Appellants.

George Roland MULVANEY, Plaintiff-Appellant, v. RIVAIR FLYING SERVICE, INC., Defendant, v. Ed DIETLIN, d/b/a Dietlin Aircraft, Third Party Defendant-Appellant.

No. 83-1246.

United States Court of Appeals, Tenth Circuit.

Oct. 3, 1984.

Jay C. Baker, Baker & Baker, Tulsa, Okl., and Michael J. Carson, Gann, Yeksavich, Carson & Leonard, Tulsa, Okl., filed a brief for appellants.

Before HOLLOWAY, SETH, BARRETT, DOYLE, McKAY, LOGAN, SEYMOUR and McWILLIAMS, Circuit Judges.

OPINION ON REHEARING EN BANC

McKAY, Circuit Judge.

After the panel decision in this case, the court determined to consider en banc some of the growing number of sanctions cases. We therefore ordered the recall of the mandate and here consider the issues raised in this case en banc along with D & H Marketers, Inc. v. Freedom Oil & Gas, Inc., 744 F.2d 1443 (10th Cir.1984), also decided today.

The case out of which this appeal arises was set for trial on January 17, 1983. Not long before trial, the defendant in this three-party action sought a continuance for the convenience of counsel. The court indicated, by denying the motion, the urgency of its need to abide with the scheduled jury trial. Thereafter, four days before trial, the third-party defendant moved for a continuance based on a failure to depose a critical witness. That motion was heard on the day scheduled for trial. Counsel for plaintiff, although announcing his readiness for trial, candidly advised the court that he might be responsible, at least in part, for counsel's inability to take the deposition in question. The parties had tried to agree on a mutually acceptable time for the deposition but that effort had failed. In any event, with the trial date approaching and even in the face of the court's previous refusal to grant a continuance because of the absence from the country of chief counsel on one side, the third party defendant had not noticed the deposition or otherwise adequately anticipated the inconvenience that would be caused by not being ready for trial on the long anticipated and set date with a jury planned. The trial court granted the continuance but imposed a $350 sanction on the attorneys for the plaintiff and the third party defendant because of the seriousness of the problems created for the court. The court did not make a finding that there was bad faith but clearly it was concerned that delays caused by negligent counsel burden the taxpayers and the court system.

The issue in this case is whether the court abused its discretion by imposing this sanction. See National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976). The issue of discretion must not be viewed in isolation. Rather, we must look at the totality of the circumstances, including the specific case under review, the total management problems for courts, and access and cost problems for litigants. The problems of congested calendars and the disgraceful costs of litigation have been so widely discussed that they do not require further documentation. The problems have been encapsulated by the Advisory Committee on Rules in its Notes accompanying the 1983 amendments to Federal Rule of Civil Procedure 16, which governs pretrial management and was amended to alleviate these problems. It is enough to note that the management of cases from the time of filing the complaint until the beginning of trial had become unacceptably long, necessitating amendment of Rule 16. While on the whole Rule 16 is concerned with the mechanics of pretrial scheduling and planning, its spirit, intent and purpose is clearly designed to be broadly remedial, allowing courts to actively manage the preparation of cases for trial. Some dispute may exist concerning the dichotomy among the various authorities on which the courts may rely for sanctions. See, e.g., Federal Rule of Civil Procedure 37, sanctions for failure to make or cooperate in discovery; the court's contempt powers; 28 U.S.C. Sec. 1927, counsel's liability for excessive costs; a variety of provisions for award of attorney's fees to prevailing parties; and the inherent power of the court to control its docket and adjudicatory functions. However, there can be no doubt that subsection (f), added as part of the 1983 amendments to Rule 16, indicates the intent to give courts very broad discretion to use sanctions where necessary to insure not only that lawyers and parties refrain from contumacious behavior, already punishable under the various other rules and statutes, but that they fulfill their high duty to insure the expeditious and sound management of the preparation of cases for trial. Indeed, the Rule suggests a different focus and presumption in the administration of sanctions than do the other available sanction provisions. It provides in part:

In lieu of or in addition to any other sanction, the judge shall require the party or the attorney representing him or both to pay the reasonable expenses incurred because of any noncompliance with this rule, including attorney's fees, unless the judge finds that the noncompliance was substantially justified or that other circumstances make an award of expenses unjust.

Fed.R.Civ.P. 16(f) (emphasis added).

It is clear from the language and the context in which this amendment to the Rule was enacted that neither contumacious attitude nor chronic failure is a necessary threshold to the imposition of sanctions. The intent is to impose the sanction where the fault lies. It is not necessary that the party or the party's lawyer be in violation of a court order as required for the application of Rule 37(b)(1), Federal Rules of Civil Procedure. Both the text and the Notes of the Advisory Committee make clear that concerns about burdens on the court are to receive no less attention than concerns about burdens on opposing parties.

While the sanctions imposed in this case occurred shortly before the adoption of the 1983 amendments to Rule 16, the spirit and purpose of those amendments have always been within the inherent power of the courts to manage their affairs as an independent constitutional branch of government. See Roadway Express, Inc. v. Piper, 447 U.S. 752, 764-67, 100 S.Ct. 2455, 2463-65, 65 L.Ed.2d 488 (1980); Link v. Wabash Railroad Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). Piper held that the court must find bad faith before the sanction of dismissal could be imposed. However, Piper was decided before the amendments to Rule 16 and the sanction imposed was much harsher than the fine imposed here. We therefore examine the issue of abuse of discretion in light not only of the historic powers of the court but in light of these amendments to Rule 16 as well.

The primary focus of amended Rule 16 is on the mechanics of pretrial conferences and scheduling. The purpose of Rule 16 is to insure early judicial intervention in the process of trial preparation and proper conduct of that...