Farm Const. Services, Inc. v. Fudge, 87-1032
| Decision Date | 15 October 1987 |
| Docket Number | No. 87-1032,87-1032 |
| Citation | 831 F.2d 18 |
| Parties | FARM CONSTRUCTION SERVICES, INC., Plaintiff, Appellant, v. Stephen D. FUDGE and Gail L. Fudge, Defendants, Appellees. |
| Court | U.S. Court of Appeals — First Circuit |
Peter F. Davis and Davis, Davis, Davis & Levin on brief for plaintiff, appellant.
Before CAMPBELL, Chief Judge, BOWNES and TORRUELLA, Circuit Judges.
The dominant issue presented in this appeal is whether the district court abused its discretion in dismissing the complaint of appellant, Farm Construction Services, Inc., for appellant's failure to comply with discovery orders pursuant to Fed.R.Civ.P. 37(a)(2). Appellant also argues that, even if sanctions were appropriate, the object of those sanctions properly should be appellant's counsel only, and not appellant. Finally, appellant contends that, because the case was improperly removed to federal court under 28 U.S.C. Sec. 1441, then the district court inappropriately rendered final judgment in the matter; instead, the court should vacate its judgment and remand the case to state court for resolution. The appellees, Stephen and Gail Fudge, have filed a motion for summary disposition pursuant to Local Rule 27.1. The appellees assert that appellant has presented no substantial question on appeal, thereby warranting affirmance of the district court's judgment. After an independent review of the record, we conclude that the judgment of the district court was correctly rendered and did not constitute an abuse of discretion.
Farm Construction Services, Inc. filed a complaint in the Massachusetts state court against the Fudges for breach of a contract under which Farm Services agreed to assist the Fudges in the construction of a stable and horse-training facility. The Fudges counterclaimed for losses which they allegedly suffered as a result of Farm Construction's failure to perform its duties under the contract in the manner promised. Shortly after filing the counterclaim, the Fudges successfully petitioned for removal to the United States District Court for the District of Massachusetts, claiming complete diversity and an amount in controversy well in excess of $10,000.
As part of the litigation process, the Fudges filed a request for production of documents, numbered 1 through 17, as well as a set of interrogatories to be answered by Farm Construction. Although there is evidence in the record which supports the conclusion that Farm Construction ultimately provided answers to the interrogatories, the record also shows that the documents in paragraphs 1 through 7 of the Fudges' request for production of documents were intentionally withheld by the appellant, Farm Construction.
The highlights of the appellant's recalcitrance with respect to the requested documents are as follows. The appellees' original request for documents on July 17, 1985 was followed by appellant's complete failure to respond and by appellees' subsequent motion to compel production. The court allowed the motion, with the directive that documents be produced by August 15, 1985. Shortly after the court issued its order, the appellant filed a response to the request for production. In the response, appellant objected to the production of the documents described in paragraphs 1 through 9 of the request on the grounds that these documents were not discoverable, were unclearly defined and that production would be unduly burdensome. The documents which are the subject of the controversy consist of various state and federal tax returns, articles of organization and by-laws of appellant corporation, and employment and other contracts with various customers and subcontractors. Concurrently with its response to the request for production, appellant moved for a protective order claiming that the documents were either irrelevant, were requested for purposes of harassment, or were described too broadly. The appellees opposed the motion for a protective order and moved for sanctions in the form of dismissal of the original complaint. The district court referred the discovery dispute to a magistrate, who on October 11, 1985 denied appellant's protective order and allowed appellees' motion for sanctions
Approximately one month prior to the magistrate's order, the appellant submitted a letter to the district court requesting that the overall discovery and trial dates be extended by 90 days due to a fire in appellant's office building. On November 4, 1985, having received no documents on the date prescribed by the magistrate, appellees moved to extend the overall discovery deadline for a period of 90 days. The district court granted the motion, extending the overall deadline to February 15, 1986. It is not clear what precise effect, if any, this overall extension was intended to have on the requested documents which had been the object of dispute; however, when the appellees again moved for the sanction of dismissal in January 1986, the district court allowed the motion and entered judgment for the appellees, stating that "plaintiff [appellant] has repeatedly refused to produce documents ordered by the court." Appellant's response to this ultimate motion for sanctions did not assert inability to present the requested documents because of the alleged fire or for any other reason, but instead reiterated the argument that the tax returns, articles of organization, by-laws and contracts requested "in no way whatsoever relate to any issue remaining in this action." Appellant moved for relief from judgment (April, 1986) and for reconsideration (June, 1986), both of which motions were denied by the district court. The persistent assertion in appellant's motions is that all "relevant" documents were produced or made available to opposing counsel. In fact, in the April 1986 affidavit of appellant's counsel accompanying the motion for relief from judgment, counsel admitted that tax returns had not been submitted because he in "good faith" believed they were no longer necessary pursuant to a conversation he had had with appellees' counsel during the early summer of 1985, which was well before the first court order.
On appeal, Farm Construction asks us to consider whether it was "just" for the district court to dismiss its complaint because of a failure to produce documents. According to Fed.R.Civ.P. 37(b)(2)(C), just and appropriate sanctions for failure to comply with a discovery order include dismissal of an action. The standard of review for the imposition of such a sanction is whether the district court abused its discretion. Damiani v. Rhode Island Hospital, 704 F.2d 12 (1st Cir.1983); National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976). In Damiani, this court upheld as within the district court's discretion the latter's dismissal of an action for failure to comply with discovery. 704 F.2d at 15. A court is not necessarily required to attempt less severe sanctions before turning to the sanction of dismissal, id., nor is a court required to provide an adversary hearing before imposing this sanction. Link v. Wabash Railroad Co., 370 U.S. 626, 632, 82 S.Ct. 1386, 1389, 8 L.Ed.2d 734 (1962). In National Hockey League, the Supreme Court restated its previously established position that Rule 37 does not authorize dismissal for failure to comply with discovery orders " 'when it has been established that failure to comply has been due to inability, and not to willfulness, bad faith, or any fault of the petitioner.' " National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 640, 96 S.Ct. 2778, 2779, 49 L.Ed.2d 747 (1976), quoting Societe Internationale v. Rogers, 357 U.S. 197, 212, 78 S.Ct. 1087, 1096, 2 L.Ed.2d 1255 (1958).
In the matter before us, there is some evidence of an extenuating...
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