Grochal v. Aeration Processes, Inc., 85-5766

• Decision Date: 19 August 1986
• Docket Number: No. 85-5766,85-5766
• Citation: 797 F.2d 1093
• Parties: , 6 Fed.R.Serv.3d 397 Alan M. GROCHAL, Trustee for Instantwhip-Washington, D.C., Appellant, v. AERATION PROCESSES, INC., d/b/a Instantwhip Foods, Inc., et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1093

797 F.2d 1093

254 U.S.App.D.C. 426, 6 Fed.R.Serv.3d 397

Alan M. GROCHAL, Trustee for Instantwhip-Washington, D.C., Appellant, v. AERATION PROCESSES, INC., d/b/a Instantwhip Foods, Inc., et al.

No. 85-5766.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 12, 1986.

Decided Aug. 19, 1986.

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 84-2620).

Edward J. Carnot, for appellant.

Samuel H. Young, Skokie, Ill., with whom Joseph Tasker, Jr., Washington, D.C., was on brief, for appellees.

Before WALD, Chief Judge, BUCKLEY, Circuit Judge, and WRIGHT, Senior Circuit Judge.

Opinion for the court filed by Circuit Judge BUCKLEY.

BUCKLEY, Circuit Judge:

Plaintiff-appellant Instantwhip-Washington, D.C. ("I.W.") appeals orders of the district court denying its motion for a continuance, dismissing its complaint with prejudice, and denying its motion for reinstatement of its complaint. The district court dismissed I.W.'s complaint at the pretrial conference in response to a motion by defendant-appellee Aeration Processes, Inc. ("Aeration"). The court reasoned that dismissal was warranted by I.W.'s failure to subpoena an essential witness for trial and its failure to provide information relating to its damage claims prior to the pretrial conference. Because, under the circumstances of this case, neither of these justifications is adequate to support the district court's action, we reverse and remand with instructions to try the case on the merits.

I. FACTUAL BACKGROUND

Between 1935 and 1981, I.W. was a franchisee of Aeration engaged in the business of manufacturing and distributing whipped cream products. I.W.'s customers included other Aeration franchisees that distributed but did not themselves manufacture aerosol whipped cream products. In 1981 these other Aeration franchisees stopped buying from I.W., causing a substantial drop in I.W.'s sales. In addition, Aeration significantly increased the rent it charged I.W. for use of I.W.'s manufacturing facility, thereby prompting I.W. to vacate that facility.

As a consequence of these developments, I.W. filed a complaint on August 24, 1984, asserting antitrust, contract and tort claims against Aeration and several of its subsidiaries, franchisees, and employees. At a scheduling conference on December 18, 1984, the district court set a trial date of April 22, 1985 and a pretrial conference date of April 11. The pretrial conference was subsequently rescheduled for April 18 at the request of Aeration. The court specified on December 18 that all discovery was to be completed by the pretrial conference. This deadline was reiterated in the court's March 6 pretrial order. The pretrial order further required both sides to submit their trial exhibits at the pretrial conference, to "[i]dentify, in writing, precise facts relied on and opinions of any proposed expert," and to provide "[f]ull itemization of all special damages claimed and supporting documentation" at the conference.

Discovery began in January 1985 when I.W. served Aeration with three notices of deposition and two requests for production of documents. Aeration responded with motions for protective orders with respect to all of I.W.'s discovery requests. In February, Aeration submitted its own discovery requests, consisting of two sets of interrogatories, a request for admission of facts, and a request for production of documents. Like Aeration, I.W. moved for a protective order with respect to the discovery sought by Aeration.

The district court rejected all requests for protective orders. Aeration's motion was denied on March 12, and the court directed it to respond to I.W.'s document request by March 25. I.W.'s motion was denied on March 27, and the court ordered it to respond to Aeration's requests within 10 days.

I.W. submitted timely responses to Aeration's requests on April 8, 1985. In addition to producing on that date the documents demanded by Aeration, I.W. answered the 89 questions contained in Aeration's first and second sets of interrogatories. Aeration subsequently asserted that I.W.'s responses to five of these interrogatories were incomplete. ¹ Aeration first brought this matter to the court's attention at a status conference on April 12, but no formal motion was made and the court issued no order at that time with respect to the interrogatory responses. One week later, at the pretrial conference, Aeration moved for an order preventing I.W. from offering proof of damages at trial. Aeration argued that such an order was warranted because it was unable to defend against I.W.'s damage claims without the itemization of damages demanded by the five interrogatories. At no time, however, did Aeration move to compel more complete responses to its interrogatories under Fed.R.Civ.P. 37(a). Rather, Aeration waited until the pretrial conference to formally request court action with respect to I.W.'s failure to itemize damages.

The one Aeration discovery request to which I.W. produced no response at all on April 8 was Aeration's third set of interrogatories. These were served by mail on March 18, and contained four questions requesting the identities of and opinions held by I.W.'s expert witnesses. I.W. did not respond to these interrogatories until the pretrial conference. Indeed, it appears that I.W.'s lawyer was very careful during depositions of I.W. witnesses to protect the identity of his expert witness.

The pretrial conference began on April 18, 1985. The principal topic of discussion at the conference was the alleged failure of I.W. to provide information relating to its damage claims. In this regard the court expressed dissatisfaction with I.W.'s failure to fully answer Aeration's interrogatories. I.W. also notified the court that one of its essential witnesses had left the country unexpectedly because of a family emergency. I.W. explained that the witness would probably be back in time to testify at trial, but there was no guarantee of this. I.W. stated that it had not originally subpoenaed this witness because there had been no reason to expect him not to appear at trial, but a process server had been sent to his house to serve him with a subpoena upon his return to the United States. I.W. indicated that it would be unable to go to trial without this witness.

A number of motions were submitted by Aeration at the conference, including a motion for summary judgment. The court stated that additional time would be required before these motions could be decided. The conference accordingly was extended until the following day, Friday, April 19, the last working day before the trial.

Immediately after the April 18 conference, I.W.'s lawyer offered Aeration a complete set of I.W.'s trial exhibits as required by the pretrial order. Aeration's lawyer stated, however, that he had not had time to make copies of Aeration's exhibits for I.W. Counsel thereupon agreed to exchange exhibits at the pretrial conference the following day.

At the reconvened conference on April 19, I.W. stated that it had been unable to locate its missing witness and therefore could not assure the court of his appearance at trial. The court explained that, because the case was to be tried by a jury, I.W. would have to decide immediately whether it was prepared to go to trial the following Monday. I.W. indicated that it could not proceed without the missing witness, and it accordingly requested a continuance to the next available date.

Before the court could rule on this matter, Aeration moved to bar the testimony of I.W.'s expert accounting witness and use of the exhibits this witness had prepared concerning I.W.'s damage claims. Without this evidence, I.W. would be left with no proof of the damages that it had allegedly sustained. Aeration offered three reasons for granting its motion. First, it argued that I.W. had wrongfully concealed the identity of its accounting expert until the pretrial conference. Second, it suggested that I.W. had violated the pretrial order by refusing to exchange trial exhibits detailing its damage claims on the first day of the pretrial conference. Third, it claimed that I.W. had failed to respond adequately to five questions concerning damages in Aeration's first and second sets of interrogatories.

The court accepted these arguments and, pursuant to Fed.R.Civ.P. 37(b)(2)(B) and 37(d), granted Aeration's motion to exclude I.W.'s evidence relating to damages. In addition, the court denied I.W.'s motion to postpone the trial, apparently on the ground that I.W. should have subpoenaed its missing witness. The court then ruled that, without any evidence of I.W.'s damages, conducting a trial would be pointless. The court accordingly dismissed I.W.'s complaint with prejudice to renewing its claims in the district court. These rulings were summarized by the district court in an order dated April 19, 1985. In a subsequent order dated April 23, 1985, the court ruled on a variety of other motions presented at the pretrial conference and reiterated its grant of Aeration's motion to exclude I.W.'s evidence concerning damages. ² I.W. then submitted a motion to reconsider and reinstate its complaint, which was denied by the court in an order dated May 30, 1985.

II. DISCUSSION

A. I.W.'s Request for a Continuance

To the extent that the district court's dismissal of I.W.'s complaint was based on I.W.'s request for a continuance, our decision in Trakas v. Quality Brands, Inc., 759 F.2d 185, 187-88 (D.C.Cir.1985), requires us to find that the court abused its discretion. In Trakas, the district court dismissed a civil rights action for want of prosecution when, two days prior to trial, the plaintiff's attorney requested a continuance because unexpected financial difficulties prevented the plaintiff from appearing at trial. This court ordered the complaint reinstated, explaining:

We obviously do not condone plaintiff's waiting so...