Lorin Corp. v. Goto & Co., Ltd., 82-2138
| Citation | 700 F.2d 1202 |
| Decision Date | 11 March 1983 |
| Docket Number | No. 82-2138,82-2138 |
| Parties | LORIN CORPORATION, a Minnesota corporation; Goto Overseas, Inc., a Minnesota corporation; Waverly Corporation, a Minnesota corporation; and Clark W. Peterson, Appellants, v. GOTO & COMPANY, LTD., a Japanese corporation; Goto Enterprises, Ltd., a Japanese corporation; and Yukihiko Goto, a/k/a Mark Y. Goto, Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Marlon O. Haugen, Marlon O. Haugen & Associates, Wayzata, Minn., for appellants.
Frank J. Walz, Robert A. Brunig, O'Connor & Hannan, Minneapolis, Minn., for appellees; Michael A. Braun, Braun, Moriya, Hoashi & Kubota, Tokyo, Japan, of counsel.
Before HEANEY, McMILLIAN and ARNOLD, Circuit Judges.
In this case we affirm the dismissal of a complaint for failure to comply with a discovery order and for failure to prosecute. We hold that the appellants (plaintiffs below) did not lose their right to appeal from the District Court to this Court by failing to file timely objections to a magistrate's recommendation that their complaint be dismissed. On the merits, however, we hold that the District Court did not abuse its discretion in dismissing the complaint as a sanction for what it found to be a deliberate and repeated failure by counsel for plaintiffs to comply with discovery orders.
On June 9, 1981, Lorin Corporation (Lorin) and others 1 commenced this diversity action for breach of contract by filing a complaint against Goto & Company, Ltd. (Goto) and others. 2 The District Court 3 set a discovery deadline of January 1, 1982. Goto filed a motion to dismiss or for summary judgment, which was noticed for hearing on October 26, 1981. At Lorin's request, the hearing was continued to November 18. When Lorin failed to file a timely memorandum of points and authorities in opposition to Goto's motion, the court, on its own motion, again continued the hearing, this time to November 25, 1981. Lorin did not appear at the November 25 hearing; nevertheless, the Court decided in Lorin's favor by denying the motion.
On January 13, 1982, Goto served its answer and amended conditional counterclaims. When Lorin failed to serve a reply, Goto, on February 19, moved for entry of a default judgment. On February 26, one day before the motion was to be submitted for consideration, Lorin served a reply to the counterclaims.
Between January 1 and February 25, 1982, Lorin's attorney contacted Goto's attorney, requested an extension of the deadline for discovery, and said that he would take appropriate steps to secure the extension. Although the Magistrate 4 to whom the matter had been referred told Lorin's attorney to file a written motion for extension, Lorin's attorney failed to do so. Finally, Goto's attorney secured an extension of the discovery deadline through July 1, 1982.
Goto served a request for admissions on February 19, and it served interrogatories and a request for production of documents on March 16. On March 31, after the deadline to respond to Goto's request for admissions had passed, Lorin's attorney asked Goto's attorney for an extension of time within which to respond to all Goto's discovery requests. Goto's attorney agreed. On May 20, Lorin's attorney agreed that by May 26, 1982, he would answer the interrogatories and allow Goto to copy a large quantity of documents which he said were responsive to Goto's request for production of documents.
When neither answers to interrogatories nor documents were forthcoming, Goto, on May 28, filed a motion to compel discovery. This motion was granted on June 8, and the Magistrate ordered Lorin to provide answers and to produce documents on June 16, 1982, and to pay $517.42 as Goto's reasonable expenses, including attorneys' fees.
According to the Magistrate's findings, on June 16 Lorin provided incomplete answers, produced a small fraction of the documents, and failed to supplement its responses thereafter. It also failed to pay Goto any part of the $517.42, to initiate any discovery, or otherwise to prosecute its claims.
On June 30 Goto served a second motion to compel discovery, which was noticed for hearing on July 12, 1982. According to Lorin's brief, Lorin's attorney, who practiced law alone, planned to be married on July 10 and to be gone on a short trip until July 19. He asked both the Magistrate and Goto's attorney for a continuance of the hearing to July 19, but this request was denied. Neither Lorin nor its attorney appeared at the July 12 hearing. Lorin submitted only the affidavit of its attorney, which, according to the Magistrate's Findings, demonstrated that Lorin possessed thousands of documents responsive to Goto's request for production of documents, and that Lorin would not be prepared to comply with the prior order compelling discovery within the next few weeks.
On July 14, 1982, the Magistrate filed a report and recommendation that the Court dismiss Lorin's complaint with prejudice for failure to prosecute and for failure to comply with the June 8, 1982, discovery order. At the end of the Magistrate's report and recommendation appeared the following notice:
Written objections to this Report and Recommendation shall be filed within ten (10) days after the date hereon and shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objection.
(emphasis in original).
On August 5, 1982, the District Court, after noting that no objections had been filed to the Magistrate's report and recommendation in the time period permitted, made a de novo review and entered an order dismissing Lorin's action with prejudice. 5 Judgment was entered accordingly. On August 6, Lorin filed a "Motion to Hear Objection to Report and Recommendation and Extend Time for Discovery" and an "Objection to Report and Recommendation." Lorin objected to the report and recommendation on the grounds that it had substantially complied with the order compelling discovery and that the remedy of dismissal was beyond the relief requested by Goto and was too severe under the circumstances. On August 24, the District Court entered an order which denied Lorin's motion, reaffirmed the order of August 5 dismissing Lorin's action, and directed that judgment be entered in favor of Goto for the $517.42 awarded by the Magistrate's order of June 8. A second judgment was entered accordingly.
Lorin appeals, claiming that dismissal was improper because there was no evidence that its failure to comply with the order compelling discovery was wilful or in bad faith.
Initially, we are met with Goto's contention that we lack jurisdiction because Lorin did not file its notice of appeal until September 20, 1982, more than 30 days after judgment was initially entered on August 5.
We disagree. Rule 4(a)(4) of the Federal Rules of Appellate Procedure provides in pertinent part:
If a timely motion under the Federal Rules of Civil Procedure is filed in the district court by any part ... (ii) under Rule 52(b) to amend or make additional findings of fact ... the time for appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motion.
Lorin's "Objection to Report and Recommendation," which was filed on August 6, says that the Magistrate's report did not include the fact that Lorin provided answers to most of Goto's interrogatories and request for production of documents, and that Lorin had substantially complied with the discovery order. Since the Magistrate's report included a finding that Lorin provided only incomplete answers and produced only a small fraction of the requested documents, and since the District Court adopted the Magistrate's report before it entered judgment, we believe that Lorin's motion and objection may fairly be read as a timely Rule 52(b) motion to amend the court's findings. 6 Thus, under Fed.R.App.P. 4(a)(4), the time for appeal began to run on August 24, when the District Court entered an order denying the motion, and the notice of appeal was timely filed on September 20. 7
Goto next contends that we should dismiss the appeal because Lorin failed to object to the Magistrate's report and recommendation within ten days. 8 Under 28 U.S.C. Sec. 636(b)(1) (Supp. V 1981),
(B) a judge may ... designate a magistrate to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of any motion ... [for involuntary dismissal of an action] ....
* * *
* * *
Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions.
Although the statute does not explicitly address the point, several circuits have held, in varying circumstances, that a party's failure to file objections may bar him from contesting a magistrate's findings on appeal. E.g., Nettles v. Wainwright, 677 F.2d 404, 405, 410 (5th Cir.1982) (en banc) (Unit B); United States v. Walters, 638 F.2d 947, 950 (6th Cir.1981); McCall v. Andrus, 628 F.2d 1185, 1187 (9th Cir.1980), cert. denied, 450 U.S. 996, 101 S.Ct. 1700, 68 L.Ed.2d 197 (1981); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir.1980). Cf. John B. Hull, Inc. v. Waterbury Petroleum Products, Inc., 588 F.2d 24, 29-30 (2d Cir.1978), cert. denied, 440 U.S. 960, 99 S.Ct. 1502, 59 L.Ed.2d...
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