Hindmon v. National-Ben Franklin Life Ins. Corp.
| Decision Date | 12 May 1982 |
| Docket Number | NATIONAL-BEN,81-1367,Nos. 80-2733,s. 80-2733 |
| Citation | 677 F.2d 617 |
| Parties | Charles E. HINDMON, Plaintiff-Appellant, v.FRANKLIN LIFE INSURANCE CORPORATION, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Michael K. Shannon, Head, Johnson, Martin & Parizek, Chicago, Ill., for plaintiff-appellant.
Michael D. McCormick, Coffield, Ungaretti, Harris & Slavin, Chicago, Ill., for defendant-appellee.
Before CUMMINGS, Chief Judge, SWYGERT, Senior Circuit Judge, and CUDAHY, Circuit Judge.
Plaintiff-appellant Charles E. Hindmon appeals from the dismissal of his Complaint against National-Ben Franklin Life Insurance Corporation ("National-Ben") and from the entry of a default judgment against him in the amount of $113,987.94 on National-Ben's Counterclaim. These orders were entered by the district court under Rule 37 of the Federal Rules of Civil Procedure as sanctions for Hindmon's failure to comply with proper discovery requests. Finding no abuse of discretion, we affirm the judgment of the district court.
This action was commenced by plaintiff Hindmon on May 12, 1980. Defendant National-Ben filed its Answer, Affirmative Defenses and Counterclaim on June 20, 1980. Three days later, National-Ben filed its First Set of Interrogatories and First Request for Production of Documents.
The district court set an initial status hearing for September 16, 1980. At that status hearing, the court noted that Hindmon had failed to reply to National-Ben's Affirmative Defenses and was in default on the Counterclaim. See Appellee's Appendix at 10, 14. The court ordered Hindmon to respond to defendant's Counterclaim by September 25, 1980; it also set a further status hearing for October 31, 1980. Plaintiff failed to appear at this second status hearing and, as of November 1, 1980, had yet to comply with any of defendant's discovery requests. The district court set the case for trial on December 1, 1980.
Despite Hindmon's failure to respond to National-Ben's discovery requests, National-Ben filed a Notice of Deposition of Hindmon to commence on November 24, 1980, just three court days prior to trial. On November 15, 1980, almost four months after document production was due, Hindmon produced some documents. Hindmon did not, however, file a formal response to defendant's Request for Production, as is required by Federal Rule of Civil Procedure 34(b), nor did he represent that document production was complete.
On November 19, 1980, National-Ben filed a Motion to Compel Discovery, pursuant to Federal Rule of Civil Procedure 37(a). The district court granted the motion and ordered Hindmon to respond to all outstanding discovery requests by November 25, 1980. See Appellee's Appendix at 16. National-Ben also requested an order compelling Hindmon to appear for the taking of his deposition on November 24, but the district court denied this request without prejudice. Id.
On November 21, 1980, counsel for Hindmon attempted to reach counsel for National-Ben by telephone, and left a message at the latter's office that Hindmon would not appear for his deposition on November 24, 1980, as required by the Notice of Deposition, but would appear instead on November 25, 1980.
On November 24, 1980, National-Ben moved to dismiss Hindmon's Complaint and for an order of default on its Counterclaim, pursuant to Rule 37 of the Federal Rules of Civil Procedure. National-Ben stated in its verified motion that Hindmon had refused to appear for the taking of his deposition on November 24, as scheduled, and that Hindmon had ignored each of National-Ben's discovery requests.
Because Hindmon had not yet failed to appear for the taking of his deposition on November 24, the district court denied National-Ben's Motion. See Appellee's Appendix at 25, 88-89. The court issued a clear warning, however, that if Hindmon failed to comply with the Order Compelling Discovery and with the Notice of Deposition, "the sanctions requested in this motion will then be appropriate." Id. at 89.
Hindmon then failed to appear that day for the taking of his deposition as required by the Notice of Deposition. Instead, he appeared on November 25, 1980, and made the unilateral demand that the deposition conclude early the next afternoon so that he could catch an afternoon flight back to Texas. See Appellee's Appendix at 28-29, 34-37. Hindmon in fact departed on the afternoon of November 26, and, further, refused to appear for a continuation of the deposition on November 28, 1980. Id. at 107. At no time did Hindmon seek a protective order regarding the date or time of his deposition.
On November 25, 1980, while Hindmon's deposition was in progress, Hindmon served upon National-Ben "Plaintiff's Answers to Defendant's First Set of Interrogatories." These Answers, however, were signed by Hindmon's attorney, rather than by Hindmon himself, in violation of the clear mandate of Federal Rule of Civil Procedure 33(a). 1 Moreover, Hindmon testified during his deposition that he had neither seen the Interrogatories nor verified the Answers. Hindmon further testified that although he could have provided some information "through other sources," his attorney had never asked him the specific questions propounded in the Interrogatories. See Appellee's Appendix at 61-64 (transcript of deposition).
On November 26, 1980, after the court's November 25 deadline had expired and one court day before trial, Hindmon produced some documents that were responsive to National-Ben's Request for Production. The documents consisted of leases, voluminous training manuals that Hindmon had obtained from another insurance company, and fourteen insurance policy files. No other documents were produced, nor was a written response filed to confirm that production was complete.
On December 1, 1980, the day trial was scheduled to commence, the district court heard argument on National-Ben's second Motion for Discovery Sanctions, filed November 26, 1980. After hearing from both sides and reviewing the entire discovery record, the district court granted National-Ben's motion. The court specifically found that Hindmon had willfully and in bad faith refused to provide discovery and that he had violated the court's November 19th Discovery Order. Accordingly, as prayed for in National-Ben's Motion, the district court dismissed Hindmon's Complaint and entered an Order of Default on National-Ben's Counterclaim.
On December 4, 1980, counsel for National-Ben presented evidence on the issue of damages on its Counterclaim. Counsel for Hindmon appeared in court on that day, but declined to participate in the damages proceedings. On February 2, 1981, the district court entered judgment on National-Ben's Counterclaim in the amount of $113,897.94. Hindmon, in this appeal, challenges both the district court's dismissal of his Complaint and the entry of a default judgment against him on National Ben's Counterclaim.
Rule 37 of the Federal Rules of Civil Procedure authorizes the imposition of sanctions for a litigant's failure to cooperate in the discovery process. Section (b) of that Rule provides that where a party fails to obey a court order directing it to provide or permit discovery, the district court may, inter alia, enter an order "dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party." Fed.R.Civ.P. 37(b). Rule 37(d) further authorizes a court to impose similar sanctions on any party who fails to appear for the taking of his deposition after being served with proper notice, or fails to serve answers or objections to interrogatories properly submitted under Federal Rule of Civil Procedure 33.
It is well settled, under the standards set forth in National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 640, 96 S.Ct. 2778, 2779, 49 L.Ed.2d 747 (1976) (per curiam), and Societe Internationale v. Rogers, 357 U.S. 197, 212, 78 S.Ct. 1087, 1095, 2 L.Ed.2d 1255 (1958), that the entry of a dismissal or default judgment under Rule 37 requires a showing of "willfulness, bad faith, or fault" on the part of a non-complying party. It is equally well settled that the choice of an appropriate discovery sanction is primarily the responsibility of the trial judge and will not be reversed absent an abuse of discretion. National Hockey League, supra, 427 U.S. at 642, 96 S.Ct. at 2780; Charter House Insurance Brokers, Ltd. v. New Hampshire Insurance Co., 667 F.2d 600, 605 (7th Cir. 1981).
In the instant case, the district court made specific factual findings regarding Hindmon's lack of good faith and willful failure to cooperate in the discovery process. On November 24, 1980, the district court denied National-Ben's first Motion for Sanctions, but pointedly warned both litigants "that if the plaintiff does fail to comply with this Court's order of November 19, 1980 and, further, fails to appear for his deposition, the sanctions requested in this motion (i.e. dismissal and default judgment) will be appropriate." Appellee's Appendix at 89 (transcript of November 24, 1980 hearing). Despite this warning, Hindmon failed to appear for his deposition on the appointed date, failed to properly answer defendant's Interrogatories, and failed to respond to defendant's Request for Production within the time limit set by the district court. Moreover, at no time did Hindmon seek an extension of time to answer the interrogatories or produce the requested documents; nor did he move for a protective order regarding the date or time of his deposition. See Al Barnett & Sons, Inc. v. Outboard Marine Corp., 611 F.2d 32, 35 (3d Cir. 1979) (...
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