Buchanan v. Bowman

• Decision Date: 24 June 1987
• Docket Number: No. 86-8578,86-8578
• Citation: 820 F.2d 359
• Parties: George B. BUCHANAN, Jr., et al., Plaintiffs-Appellees, v. Hugh E. BOWMAN, II, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 359

820 F.2d 359

8 Fed.R.Serv.3d 20

George B. BUCHANAN, Jr., et al., Plaintiffs-Appellees, v. Hugh E. BOWMAN, II, et al., Defendants-Appellants.

No. 86-8578.

United States Court of Appeals,

Eleventh Circuit.

June 24, 1987.

William S. Hardman, Gainesville, Ga., for defendants-appellants.

John G. Despriet, Edward C. Brewer III, Atlanta, Ga., for plaintiffs-appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before FAY and CLARK, Circuit Judges, and ALLGOOD ^*, Senior District Judge.

ALLGOOD, Senior District Judge:

Appellant Tom Burke complains of the district court's imposition of sanctions in striking his answer and issuing a default judgment against him pursuant to Rule 37 of the Federal Rules of Civil Procedure. After reviewing the case and the applicable law, we have determined that the district court's opinion is correct and we affirm.

Plaintiffs sue Tom Burke for conspiracy to defraud them and others in an investment in a cattle herd at Lovana Farms. Plaintiffs' claims arose out of Mr. Burke's alleged participation in that conspiracy.

In late 1979, Mr. Buchanan and Mr. Luther invested in a cattle herd marketed by Lovana Farms of Clarkesville, Georgia. Lovanna Farms was selling breeder-quality Angus heifers for $8,300 each. Plaintiffs' claim was that Lovana Farms falsely represented that the cattle were worth their purchase price. Plaintiffs invested in 33 cows by becoming limited partners in Aberdeen Angus Breeders, Ltd., and invested in the partnership, via a recourse note, over the next three years.

In September of 1983, the IRS challenged certain deductions associated with their cattle investment, and disallowed certain deductions taken by plaintiffs, based in part on the IRS's belief that the cattle were overvalued. Plaintiffs requested that an appraiser be hired. Mr. Tom Burke, the appellant here, appraised the herd of 87 cows at $484,000.

In mid-1984 plaintiffs hired attorneys and an accountant to settle their disputes with the IRS. They paid back taxes for 1979 and 1980 as part of their settlement with IRS, and interest on those back taxes. The cattle herd was sold in a liquidation sale in November of 1984, and Lovana Farms retained the proceeds of the sale.

In conducting pre-trial discovery, plaintiffs noticed Mr. Burke for deposition for June 20, 1985. On June 18, 1985, Mr. Burke filed a motion for a protective order, and then failed to appear on June 20. On June 28, plaintiffs filed a motion to compel discovery. On July 18, 1985, Mr. Burke was served with the first interrogatories, and on July 24 with a second request to produce. On August 13, 1985, the court denied Mr. Burke's motion for a protective order, and on August 26 granted plaintiffs' motion to compel and awarded attorneys' fees and costs involved in obtaining such order. The court in this hearing issued an oral warning to Mr. Burke. On September 6, 1985, plaintiffs filed a second motion to compel a response to interrogatories and the request for production. On September 9, a written order was entered on the August 26 oral grant of the motion to compel. Mr. Burke was again noticed for deposition for October 10, 1985. He offered December 15 as an alternate date which was rejected by plaintiffs' counsel.

On October 9, Mr. Burke offered November 11 as an alternate date, but was informed that he was expected to appear October 10. He failed to appear. On October 30, plaintiffs filed a third motion to compel, and for sanctions. On November 7, plaintiffs received a letter from counsel for Mr. Burke that he would be available in Atlanta on November 11 for deposition. Plaintiffs attempted to contact him on November 7 and 8, and on November 8, counsel for Mr. Burke called plaintiffs and stated that Mr. Burke would be available for two hours at the Delta Crown Room at Hartsfield International Airport at 6:00 a.m. on November 11. Later that day, counsel for Mr. Burke called and stated that the Delta Crown Room was not open at 6:00 a.m. and suggested Mr. Burke's hotel room. Counsel concurred not to go forward.

Plaintiffs moved for an order under Rule 37 of the Federal Rules of Civil Procedure striking the answer of defendant Tom Burke and for entry of default judgment. After a hearing on November 26, 1985, the district court granted the motion.

Rule 37(d) of the Federal Rules of Civil Procedure, dealing with sanctions used when a party fails to cooperate in discovery, allows the court to strike out pleadings and render default judgment against the disobedient party.

In Hashemi v. Campaigner Publications, Inc., 737 F.2d 1538 (11th Cir.1984), the court held that although the sanction of dismissal is extreme, the district court has "... the discretion to dismiss a complaint where the party's conduct amounts to 'flagrant disregard and willful disobedience' of the court's discovery orders." Id. at 1539.

In Hepperle v. Johnston, 590 F.2d 609 (5th Cir.1979), in dismissing an action under Fed.R.Civ.P. 41(b), the court pointed to the fact that there was not only a pattern of delay, but also that the party received a warning of dismissal and refused to obey court orders. Id. at 613.

In the case at bar, on August 26, 1985, the court orally granted the plaintiffs' motion to compel, and further issued an oral warning. On September 9, 1985, the court issued a written order of the August 26 oral order compelling discovery. In response to a motion by plaintiffs, the district court pointed to Mr. Burke's failure to appear for deposition; failure to respond to interrogatories and request for production of documents; failure to appear for a second scheduled deposition when directly ordered by the court to do so; and failure to make a reasonable offer to appear, and ordered that Mr. Burke's answer be stricken and that default be entered against him.

The standard of review in a default judgment under Rule 37(b) is set out in the case of United States v. $239,500 in U.S. Currency, 764 F.2d 771 (11th Cir.1985). The court in that case held that "[w]hile dismissal is a severe sanction, the imposition of sanctions for failure to provide discovery rests within the trial court's discretion and will not be overturned absent abuse of that discretion." Id. at...