744 F.2d 1438 (10th Cir. 1984), 83-1246, Matter of Baker

Docket Nº83-1246.
Citation744 F.2d 1438
Party NameIn 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.
Case DateOctober 03, 1984
CourtUnited States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1438

744 F.2d 1438 (10th Cir. 1984)

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

October 3, 1984

Page 1439

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

Page 1440

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...

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