846 F.2d 58 (10th Cir. 1988), 86-1304, Toma v. City of Weatherford

Docket Nº:86-1304.
Citation:846 F.2d 58
Party Name:Kory TOMA, Plaintiff-Appellant, v. The CITY OF WEATHERFORD; Keith Crum, individually and as an employee of the City of Weatherford Police Department; Tim Bailey, individually and as an employee of the City of Weatherford Police Department; Randy Cox, individually and as an employee of the City of Weatherford Police Department; and Larry Williams, i
Case Date:May 11, 1988
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 58

846 F.2d 58 (10th Cir. 1988)

Kory TOMA, Plaintiff-Appellant,

v.

The CITY OF WEATHERFORD; Keith Crum, individually and as an

employee of the City of Weatherford Police Department; Tim

Bailey, individually and as an employee of the City of

Weatherford Police Department; Randy Cox, individually and

as an employee of the City of Weatherford Police Department;

and Larry Williams, individually and as an employee of the

Custer County, Oklahoma Sheriff's Office, Defendants-Appellees.

No. 86-1304.

United States Court of Appeals, Tenth Circuit

May 11, 1988

Page 59

Michael Gassaway and John B. Monnett, Hughes & Nelson, Oklahoma City, Okl., on the brief, for plaintiff-appellant.

Jim T. Priest, McKinney, Stringer & Webster, P.C., Oklahoma City, Okl., for defendants-appellees.

Before HOLLOWAY, Chief Judge, ANDERSON, Circuit Judge, and SAFFELS, District Judge [*].

SAFFELS, District Judge.

This appeal provides us with another opportunity to review a district court's use of dismissal or default as a discovery sanction. This issue has been the subject of several recent decisions. See M.E.N. Co. v. Control Fluidics, Inc., 834 F.2d 869 (10th Cir.1987); Smith v. United States, 834 F.2d 166 (10th Cir.1987); In re Standard Metals Corp., 817 F.2d 625 (10th Cir.), modified on reh'g on other grounds sub nom. Sheftelman v. Standard Metals Corp., 839 F.2d 1383 (10th Cir.1987). On February 7, 1986, the district court dismissed plaintiff's complaint with prejudice for failing to comply with a court scheduling order concerning the orderly progress of discovery and for violation of the discovery provisions of the Federal Rules of Civil Procedure. On appeal, plaintiff contends that discovery sanctions are not warranted but, even if this court finds some penalty is due, dismissal was an abuse of discretion. Based on the standards applied in our recent cases, we find that the district court's dismissal must be reversed and the case remanded for findings under the appropriate standard.

I.

Plaintiff filed this case on July 1, 1985, alleging a violation of his civil rights under 42 U.S.C. Sec. 1983. On August 16, plaintiff and his counsel received interrogatories and a request for production. Plaintiff did not respond to the request for production (the nature of which is not disclosed in the record), although plaintiff did provide answers to interrogatories on December 17, some three months after receiving them. Pursuant to a pretrial scheduling order dated September 17, 1985, the plaintiff was directed to file his final contentions by December 15, 1985, and his witness and exhibit lists by January 1, 1986. Plaintiff filed his final contentions on February 4, and his witness and exhibit lists on January 7. Defendants had filed their witness and exhibit lists on January 2. Also in the September 17, 1985, order was a discovery deadline of January 15, 1986.

While the discovery requests to plaintiff were outstanding in October and November of 1985, defense counsel made informal attempts to expedite compliance. In so doing, defense counsel learned that...

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