Henry v. Gill Industries, Inc.

• Citation: 983 F.2d 943
• Decision Date: 12 January 1993
• Docket Number: 91-16004,Nos. 91-15727,s. 91-15727
• Parties: Del P. HENRY, Jr., a single man, Plaintiff-Appellant-Cross-Appellee, v. GILL INDUSTRIES, INC., et al., Defendant-Appellee-Cross-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 943

983 F.2d 943

24 Fed.R.Serv.3d 1164

Del P. HENRY, Jr., a single man, Plaintiff-Appellant-Cross-Appellee, v. GILL INDUSTRIES, INC., et al., Defendant-Appellee-Cross-Appellant.

Nos. 91-15727, 91-16004.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 2, 1992.

Decided Jan. 12, 1993.

Kelly Reed, Scottsdale, AZ, for plaintiff-appellant-cross-appellee.

Douglas R. Painter, McCutchen, Doyle, Brown & Enersen, San Francisco, CA, for defendant-appellee-cross-appellant.

Appeal from the United States District Court for the District of Arizona.

Before: BOOCHEVER, NOONAN, and O'SCANNLAIN, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

In this appeal and cross-appeal we must decide whether a civil action can be dismissed as a sanction for failure to comply with discovery rules and whether a summary judgment motion on a counterclaim can be granted based solely on failure of the opposing party to file an answering memorandum under local court rules.

I

Del P. Henry, Jr., ("Henry") brought suit against Gill Industries, Inc. ("Gill") in January 1989 for alleged misconduct in connection with a 1985 securities transaction. Gill counterclaimed alleging that Henry's suit breached a settlement agreement between them. The proceedings did not run smoothly. In January 1990, the district court ordered Henry to pay attorney's fees as a sanction for discovery misconduct in violation of Federal Rule of Civil Procedure 37(d). In March 1991, the court dismissed Henry's suit with prejudice for "repeated noncompliance with discovery rules." Henry filed a timely notice of appeal. The district court then granted partial summary judgment against Gill on its counterclaim. Gill filed a timely notice of cross-appeal.

II

The district court awarded attorney's fees against Henry under Federal Rule of Civil Procedure 37(d), which permits an award of such "reasonable" fees as are "caused by" a failure to engage in discovery. Henry does not dispute the propriety of the district court's decision to impose sanctions. Rather, he argues that a proper evidentiary foundation for determining the amount of the award was never laid, and that the award must therefore be vacated.

"An appeal from a district court's award of attorney's fees is reviewed for abuse of discretion. The court abuses its discretion when it bases the award on clearly erroneous legal or factual findings." Drucker v. O'Brien's Moving and Storage, Inc., 963 F.2d 1171, 1173 (9th Cir.1992) (citations omitted).

Henry argues that Gill was "required to provide detailed time and expense records" to meet its burden of establishing its entitlement to fees, and that the affidavits of Gill's counsel on which the district court based its award were inadequate. Our precedents, however, have clearly established that an award of attorney's fees may be based on the affidavits of counsel, so long as they are "sufficiently detailed to enable the court to consider all the factors necessary in setting the fees." Williams v. Alioto, 625 F.2d 845, 849 (9th Cir.1980) (per curiam), cert. denied, 450 U.S. 1012, 101 S.Ct. 1723, 68 L.Ed.2d 213 (1981); accord Sablan v. Department of Fin. of N. Mariana Islands, 856 F.2d 1317, 1322 (9th Cir.1988) ("sufficiently detailed to provide an adequate basis for calculating the award"); Shakey's Inc. v. Covalt, 704 F.2d 426, 435 (9th Cir.1983) ("ample evidence to support the attorney's fee award"); Manhart v. City of Los Angeles, 652 F.2d 904, 908 (9th Cir.1981) ("sufficiently detailed to provide a basis for the award"), vacated on other grounds, 461 U.S. 951, 103 S.Ct. 2420, 77 L.Ed.2d 1310 (1983).

The district court expressly found that Gill's declarations and affidavits satisfied this requirement. The relevant documents disclosed the nature of the services rendered in connection with unavailing efforts to obtain discovery, the amount of attorney time so consumed, and the rates at which this time was billed to the client. The court noted that any doubts it may have had regarding the sufficiency of the documentation submitted in support of the fee application had been obviated by awarding only one-third of the amount of fees requested by Gill. There is nothing in the record to suggest that the district court committed clear error in finding that the fees awarded were "caused by" Henry's discovery misconduct and represented "reasonable" charges for the services of Gill's counsel. The award therefore did not constitute an abuse of discretion. ¹

III

A

We turn now to Henry's contention that the district court's eventual dismissal of his suit as a sanction under Rule 37 for "repeated and flagrant" discovery abuses was unwarranted.

"We review the imposition of discovery sanctions under Rule 37 for abuse of discretion. The district court's discretion will not be disturbed unless we have a definite and firm conviction that the court committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors. Where the drastic sanctions of dismissal or default are imposed, however, the range of discretion is narrowed and the losing party's non-compliance must be due to willfulness, fault, or bad faith." Fjelstad v. American Honda Motor Co., 762 F.2d 1334, 1337 (9th Cir.1985) (citations and internal punctuation omitted).

Henry offers a number of challenges to the legal and factual premises on which the district court proceeded in ordering dismissal under Rule 37. None has merit.

As a threshold matter, Henry appears to suggest that only so much of his discovery conduct as occurred after the court's imposition of monetary sanctions should have been considered in deciding whether dismissal was warranted. This circuit's law is to the contrary. See Adriana Int'l Corp. v. Thoeren, 913 F.2d 1406, 1411 (9th Cir.1990) (district court properly considered all of defendant's discovery conduct in ordering default judgment: "In evaluating the propriety of sanctions, we look at all incidents of a party's misconduct."), cert. denied, --- U.S. ----, 111 S.Ct. 1019, 112 L.Ed.2d 1100 (1991); Halaco Eng'g Co. v. Costle, 843 F.2d 376, 381 n. 2 (9th Cir.1988) ("court may indeed consider prior conduct that has already been subject to sanction, when it is weighing a subsequent sanction motion").

Next, Henry argues that he never "failed to appear" for his noticed deposition because each such deposition was vacated by agreement of the parties. He suggests that "the ordinary difficulties in coordinating calendars" should not be grounds for discovery sanctions. The record shows, however, and the district court found that Henry "twice notified defendants the business day before his properly noticed depositions were to have taken place that he would not attend...." Henry thus asks this court to hold that, even though he twice forced cancellation of his deposition by notifying Gill at the last minute that he would not appear, such conduct does not constitute a "failure to appear" because Gill's counsel, instead of sitting in a conference room waiting for Henry not to arrive, attempted to reschedule the deposition. We reject the suggestion that an unreasonable refusal to be deposed must be met with an unreasonable refusal to reschedule in order to warrant sanctions under Rule 37.

Next, Henry suggests that, even if he was guilty of "some failure" with regard to the scheduling of his deposition, "that failure [was] purged by ... his submitting to ... deposition...." He cites no authority for this proposition, and, indeed, this court has squarely rejected it. See North Am. Watch Corp. v. Princess Ermine Jewels, 786 F.2d 1447, 1451 (9th Cir.1986) (order of dismissal affirmed: "Belated compliance with discovery orders does not preclude the imposition of sanctions."); G-K Properties v. Redevelopment Agency of San Jose, 577 F.2d 645, 647-48 (9th Cir.1978) (order of dismissal affirmed: "last minute tender" of discovery does not cure effects of discovery misconduct).

Next, Henry challenges the district court's finding that he "failed to submit a complete response to [Gill's] Request for Production of Documents...." Henry asserts that he "made full and complete production of all responsive documents ... many months before [Gill] filed [its] first motion to compel," and that in this respect the court's order of sanctions was based on "imagined and unsubstantiated deficiencies in his document production." Henry cannot, however, demonstrate clear error in the district court's finding just by disagreeing with it. The record indicates, for example, that Henry failed to produce a copy of his 1986 tax return until some time after his suit had been dismissed, and failed to produce either a legible copy or the original of certain key documents repeatedly requested by Gill. Henry argues that his failure to produce these documents caused Gill no prejudice, but this, even if true, would not establish that his conduct did not violate the discovery rules.

Finally, Henry insists that he complied fully with the district court's orders with respect to payment of the monetary sanctions. He apparently sees no inconsistency between this claim and his failure to dispute the court's finding to the contrary. The court found that Henry "failed to comply with the Court's ... order for discovery sanctions by depositing with the Court clerk a non-negotiable certificate of deposit made out to plaintiff's own lawyer instead of a negotiable certificate of deposit." The district court, in approving the posting of a supersedeas bond, expressly required use of a "negotiable" certificate of deposit. The court was justified in thinking its order entitled to be obeyed in all particulars. Henry's contention that he had an "absolute right" to post a bond rather than pay over the amount of the sanction to Gill has nothing to do with whether the court's order as to the form of the bond was heeded.

B

Having disposed of these preliminaries, we turn to the question whether dismissal of...