Diehl v. H.J. Heinz Co., 89-2165
| Decision Date | 24 April 1990 |
| Docket Number | No. 89-2165,89-2165 |
| Citation | 901 F.2d 73 |
| Parties | Myriam DIEHL, Plaintiff-Appellant, v. H.J. HEINZ COMPANY and Metromail Corporation, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
James P. Costello, Thomas M. O'Connell, Des Plaines, Ill., for Myriam Diehl.
Thomas J. Keevers, Kathleen A. Smith, Richard M. Hittle, Keevers & Hittle, Chicago, Ill., for H.J. Heinz Co.
Jack T. Riley, Jr., Kevin G. Owens, Gregory D. Conforti, Thomas H. Fegan, Johnson, Cusack & Bell, Chicago, Ill., for Metromail Corp.
Before CUMMINGS, POSNER, and RIPPLE, Circuit Judges.
The district judge dismissed the complaint, with prejudice, as a sanction for the plaintiff's failure to comply with the defendants' discovery requests. Fed.R.Civ.P. 37(b)(2)(C), (d). We must decide whether, in doing so, she abused the broad discretion that federal trial judges possess to punish dilatory litigation tactics.
The plaintiff, Myriam Diehl, a truck driver, filed this diversity tort suit on October 1, 1988, against H.J. Heinz Company and Metromail Corporation. She claims to have been injured when struck on December 16, 1987, by a forklift at a warehouse owned by Metromail, and again on May 4, 1988, when she tripped over debris in a warehouse owned by Heinz. It may seem odd that a single complaint should encompass injuries inflicted four and a half months apart by different firms not acting in concert, but her claim is that the accident at the Heinz warehouse aggravated the back injury she had sustained in the accident at the Metromail warehouse. If true, and if both defendants were negligent or otherwise culpable, this would make them successive joint tortfeasors despite the lack of concert between them. Prosser and Keeton on the Law of Torts, Sec. 52, at p. 352 (5th ed. 1984). And it is of course proper to sue joint tortfeasors in the same complaint. Poster v. Central Gulf S.S. Corp., 25 F.R.D. 18, 20 (E.D.Pa.1960); Lucas v. City of Juneau, 127 F.Supp. 730, 732 (D. Alaska 1955); Fed.R.Civ.P. 20(a); 7 Wright, Miller & Kane, Federal Practice and Procedure Sec. 1653, at p. 385 (2d ed. 1986); 7 id., Sec. 1657, at p. 404 and n. 11. In fact the concept of successive injurers as joint tortfeasors is derived from joinder, not tort, principles. Prosser and Keeton on the Law of Torts, supra, Sec. 47, at pp. 324-28.
Judge Conlon set May 24, 1989, as the date for completion of discovery. The plaintiff's deposition was originally scheduled for March 23, but her lawyer notified the defendants' lawyers the day before that she would not appear, and it was rescheduled for April 10. The plaintiff's lawyer had promised to complete the answers to the defendants' interrogatories and document requests by April 7. He not only missed this deadline, but on the morning of April 10 notified the defendants' lawyers that his client would not be appearing for her deposition that day.
The defendants moved to dismiss the suit as a sanction for the plaintiff's failure to cooperate in discovery. Fed.R.Civ.P. 37(d). The motion was set for a hearing on May 3, and notice was served at the address that was listed for the plaintiff's lawyer on the docket sheet. However, without bothering to notify either the court or the defendants, the plaintiff's lawyer had moved his offices from Chicago to Des Plaines, and he claims not to have received the notice. Whether or not this is true, it certainly is true that he failed to show up for the May 3 hearing, whereupon Judge Conlon issued a one-line order dismissing the suit. Rule 37(b)(2)(C) makes dismissal a possible sanction under Rule 37(d).
The order of May 3 did not indicate whether the dismissal was with prejudice. Rule 41(b) provides (with immaterial exceptions) that a dismissal is with prejudice unless the court indicates otherwise, but because Judge Conlon's subsequent order, as we shall see, specified that dismissal was with prejudice, it is unclear whether she meant the May 3 dismissal to be with prejudice.
The plaintiff's lawyer filed a prompt motion to vacate the May 3 order, and at a hearing on May 11 Judge Conlon granted the motion on condition that the plaintiff agree to "comply with all outstanding discovery requests by close of business this date." The plaintiff's lawyer agreed--what choice had he when the judge said "if you're not willing to do it the motion to vacate is denied"?-- and like a Keystone Cop of silent movie days scurried about with desperate haste in an effort to comply. He had earlier furnished the defendants with unsigned interrogatory answers to assist them in preparing for the deposition (which never took place) of his client, and at the hearing on May 11 it seemed that all he had to do to comply with the judge's order was obtain the plaintiff's signature on the answers. But because the court is in Chicago, the lawyer's office in Des Plaines, and his client in LaSalle, it was impossible to obtain her signature by 4:30 p.m., the close of the district court's business day. On May 16 and 17, in response to the defendants' renewed motions to dismiss, Judge Conlon ordered the case dismissed with prejudice. She recited the history leading up to her order of May 3, but the only clearly stated ground for dismissal was the plaintiff's failure to comply with all discovery requests by the close of business on May 11. At brief hearings on May 16 and 17 that preceded the orders of dismissal, the lawyers got into a spitting match over the extent to which and reasons that other discovery requests by the defendants were still outstanding, but the judge, saying she was "not a human polygraph" and "can't determine who said what to whom," did not resolve the disagreement among the lawyers.
The order of May 3, dismissing the suit for failure to comply with the defendants' requests for discovery on a timetable to which the plaintiff's lawyer had agreed,...
To continue reading
Request your trial
-
Select Creations, Inc. v. Paliafito America, Inc., 91-C-1240
...(7th Cir. 1983). See also Philips Medical Systems International, B.V. v. Bruetman, 982 F.2d 211, 214 (7th Cir.1992); Diehl v. H.J. Heinz Co., 901 F.2d 73, 75 (7th Cir.1990); Dole v. Local 1942, Int'l Brotherhood of Electrical Workers, 870 F.2d 368, 371-72 (7th Cir.1989); Anilina Fabrique de......
-
English v. Cowell, 91-1079
...order of court, a defendant may move for dismissal of an action or of any claim against the defendant.").14 See also Diehl v. H.J. Heinz Co., 901 F.2d 73, 75 (7th Cir.1990) (court abused its discretion in dismissing a suit for failure to follow a discovery order when it was impossible to co......
-
Scheri, Matter of, 94-1479
...we not cabin unrealistically the needed discretion of the district courts was considered by our present Chief Judge in Diehl v. H.J. Heinz Co., 901 F.2d 73 (7th Cir.1990). While reversing the dismissal of a case as a sanction for failure to cooperate in discovery, he wrote: "We are complete......
-
Kluth v. General Cas. Co. of Wisconsin, 92-1924
...supreme court. The court refused certification on June 2, 1993, and we subsequently heard oral argument.3 Kluth cites Diehl v. H.J. Heinz Co., 901 F.2d 73 (7th Cir.1990), for the proposition that "[s]uccessive unrelated tortfeasors may be joined in one action where injuries were inflicted m......