Hewlett v. Davis
| Decision Date | 03 February 1988 |
| Docket Number | No. 87-1398,No. 87-1384,Nos. 87-1384,87-1398,87-1384,s. 87-1384 |
| Citation | 844 F.2d 109 |
| Parties | HEWLETT, Willie, Appellant in, v. DAVIS, Officer Max, Badge # 1186 and City of Philadelphia and Holmes, Marlene Davis, Executrix of the Estate of Davis, Max, and in her capacity as Personal Representative of the Estate of Davis, Max and Davis, Fannie, Personal Representative of Davis, Max, Deceased and Doe, John and/or Doe, Mary, Administrator/Administratrix, Executor, Executrix of the Estate of Davis, Max, and in their capacity as personal representative of the Estate of Davis, Max. HEWLETT, Willie, v. DAVIS, Officer Max, Badge # 1186 and City of Philadelphia and Holmes, Marlene Davis, Executrix of the Estate of Davis, Max, and in her capacity as Personal Representative of the Estate of Davis, Max and Davis, Fannie, Personal Representative of Davis, Max, Deceased and Doe, John and/or Doe, Mary, Administrator/Administratrix, Executor, Executrix of the Estate of Davis, Max, and in their capacity as personal representative of the Estate of Davis, Max. Appeal of Officer Max DAVIS and the City of Philadelphia, in . Submitted Under Third Circuit Rule 12(6) |
| Court | U.S. Court of Appeals — Third Circuit |
Stephen T. Saltz, Daniels, Saltz & Associates, Ltd., Philadelphia, Pa., for appellant Willie Hewlett.
Barbara R. Axelrod, City Solicitor's Office, City of Philadelphia, Law Dept., Philadelphia, Pa., for appellee City of Philadelphia.
Before SLOVITER, STAPLETON and MANSMANN, Circuit Judges.
Plaintiff Willie Hewlett and defendant City of Philadelphia have filed cross-appeals from a final judgment entered as the result of a jury verdict for the defendant City of Philadelphia in this civil action by Hewlett against the City of Philadelphia and a former Philadelphia police officer. Hewlett alleged violations of his civil rights under 42 U.S.C. Sec. 1983 and pendent state claims for intentional torts allegedly committed during his arrest.
We find no abuse of discretion, as asserted by the appellant, in the district court's choice of monetary sanctions instead of default judgment for the City's failure to comply with a discovery order. Nor do we find an abuse of discretion in the district court's dismissal, for failure to prosecute, of certain of the plaintiff's post-trial motions. As to the City's cross-appeal, we find no error in the district court's permitting additional discovery in connection with the resolution of post-trial motions. We will affirm the order of the district court as to these matters.
We will, however, employ mandamus to require the district court to entertain a motion, which was improperly remanded to state court. The motion asserted the inadequacy of the district court's instructions to the jury on a pendent state law claim.
This action was filed on May 23, 1986 in the Philadelphia Court of Common Pleas and was removed to federal court by the City on June 20, 1986. Discovery commenced and in February of 1987, several discovery disputes arose.
On February 17, 1987 the plaintiff filed "Plaintiff's Motion for Sanctions for Failure of Defendant, City of Philadelphia, to Answer Plaintiff's Interrogatories, Supplemental Interrogatories and Request for Production of Documents and to Produce Witnesses for Duly Scheduled Depositions" ("Motion for Order Compelling Discovery") citing the City's failure to respond to numerous discovery matters. 1 On February 20, 1987, the district court ordered the City to respond to the outstanding requests by February 24, 1987 or have judgment entered against it.
On February 27, 1987 the plaintiff filed "Plaintiff's Motion to Have Judgment Entered in Favor of Plaintiff on the Issue of Liability" ("Motion for Judgment") to sanction the City's assertedly untimely answer to the plaintiff's Amended Complaint as well as the City's alleged failure to comply fully with the discovery order of February 20, 1987.
Trial commenced on March 2, 1987 on the issue of liability only and on March 6, 1987, the district court entered judgment on a jury verdict of liability against Officer Davis but in favor of the City of Philadelphia.
On March 10, 1987 the plaintiff filed deposition subpoenas against the City. On March 16, 1987, the City moved for a protective order for three of the five subpoenaed witnesses and "any other City employee." The district court did not rule on the City's motion but ordered that two of the witnesses whose affidavits had been filed previously, Sergeant Jack Kelley and Officer Dennis Gibson, be deposed.
On March 13, 1987, the plaintiff filed a Motion for Judgment N.O.V., a Motion for a New Trial, and a "Motion to Mold the Verdict," alleging inter alia that the jury was presented only with the Sec. 1983 claim and not the pendent state law agency claim.
On March 18, 1987 the plaintiff filed "Plaintiff's Supplemental Motion Requesting This Honorable Court Enter Judgment In Favor of Plaintiff and Against the City of Philadelphia" ("Supplemental Motion for Judgment"). This motion incorporated many of the claims of the first Motion for Judgment. It also asserted that Officer Gibson's affidavit, filed by the City on March 5, 1987, was misleading regarding the availability of certain requested statistics concerning assaults or injuries by police officers during arrests. In addition, the motion asserted that the City's failure to comply fully and timely with the discovery order of February 20th substantially prejudiced the plaintiff in establishing his claim against the City under Sec. 1983 as well as under the state law agency theory. The motion reiterated the claim that the district court had neglected to instruct the jury on the plaintiff's pendent theory of state law agency. It asserted that the jury verdict, therefore, exonerated the City only as to the plaintiff's claim pursuant to 42 U.S.C. Sec. 1983. The plaintiff requested that the court enter judgment against the City on the pendent state claim in order to sanction its alleged dereliction with regard to the discovery order.
On March 20, 1987, the plaintiff filed "Plaintiff's Motion for Sanctions" ("Motion for Sanctions") which substantially reiterated the claims in the Motion to Compel Discovery and, in addition, cited the City's original refusal to comply with the March 9th deposition subpoenas and claimed that the City's motion for a protective order was untimely. The motion further asserted that the City had failed to file a timely answer to the plaintiff's amended complaint and had filed a nonresponsive answer to the Complaint. The motion requested that the court enter judgment against the City and award attorney's fees and costs.
By opinion and order of April 2, 1987, the district court scheduled oral argument on the plaintiff's Motion for Sanctions and on the City's Motion for a Protective Order. In addition, the court denied the plaintiff's Motion to Mold the Verdict, finding that the plaintiff had not made a timely objection to the asserted failure to charge on the pendent state law agency claim.
On April 7, 1987, the district court entered judgment on the jury verdict of damages against Officer Davis. On the same date, new deposition subpoenas returnable on April 13, 1987 were issued to Officers Kelly and Gibson, the two formerly subpoenaed witnesses who were not subjects of the City's prior motion for a protective order.
On April 14, 1987, the plaintiff filed another Motion for Sanctions ("Second Motion for Sanctions"), incorporating the allegations of the first motion and asserting in addition that the officers had not yet presented themselves for deposition. The officers were deposed on April 16, 1987.
By Order of May 1, 1987, the district court took all outstanding motions under advisement, including the plaintiff's Motion to Mold the Verdict which had been the subject of the April 7th opinion and order.
On June 3, 1987, the district court granted the plaintiff's Motion for Sanctions against the City for failure to comply fully with the discovery requests of November 14, 1986 and January 12, 1987. The court awarded the plaintiff $2,500 in monetary sanctions as well as attorney's fees incurred in litigating the sanction issue. The court also denied as moot the City's Motion for a Protective Order.
By the same Opinion and Order of June 3, 1987 the district court denied the plaintiff's Motion for Judgment and Supplemental Motion for Judgment and dismissed both the plaintiff's Motion for J.N.O.V. and Motion for a New Trial for lack of prosecution. The court also again denied the plaintiff's Motion to Mold the Verdict as to the City of Philadelphia but ordered that "this portion of the case is REMANDED to the Court of Common Pleas of Philadelphia County where plaintiff may file a similar motion."
The plaintiff now appeals from the denial of both the Motion for Judgment and the Supplemental Motion for Judgment and from the dismissal of the Motion for a New Trial.
The defendant City cross-appeals from the order remanding to the Pennsylvania state court the issues raised by the plaintiff's Motion to Mold the Verdict as to the City of Philadelphia. The City also asserts that the district court erred in permitting discovery after the jury rendered a verdict in its favor.
The district court has subject matter jurisdiction pursuant to 42 U.S.C. Sec. 1983. We have appellate jurisdiction under 28 U.S.C. Sec. 1291.
We consider first whether the district court abused its discretion by refusing to enter a default judgment against the City, as permitted by Rule 37(b)(2) of the Federal Rules of Civil Procedure, to sanction the City's failure to comply with a discovery order. The district court considered together the plaintiff's motions for sanctions and for default judgment and determined to award monetary sanctions and deny judgment.
Rule 37(b)(2) offers a wide range of sanctions for noncompliance with an order to compel...
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