Margoles v. Johns, 76-1293
| Decision Date | 05 December 1978 |
| Docket Number | No. 76-1293,76-1293 |
| Citation | 587 F.2d 885 |
| Parties | Dr. Milton MARGOLES, M. D., Plaintiff-Appellant, v. Alida JOHNS and The Journal Company, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Wayne B. Giampietro, Chicago, Ill., for plaintiff-appellant.
James P. Brody, Milwaukee, Wis., for defendants-appellees.
Before CASTLE, Senior Circuit Judge, and CUMMINGS and PELL, Circuit Judges.
This is an appeal from an order dismissing a diversity slander action for willful failure to obey the court's orders that the plaintiff produce documents and from an order denying relief from the judgment of dismissal. The issues on appeal are 1) whether the district court abused its discretion in dismissing the plaintiff's cause of action for failure to produce documents for discovery when that production was not refused but was only tardy, 2) whether the district court abused its discretion in refusing to hold a hearing in connection with the tardy production of documents for discovery and the sanctions to be applied therefor, and 3) whether the plaintiff's case may be dismissed for failure to produce documents when the tardy production was not his failure but that of his son, a non-party to the case.
The pertinent facts are simply stated. On August 18, 1972, Dr. Milton Margoles filed a complaint charging that he was slandered by Alida Johns, a Milwaukee Sentinel reporter, in three telephone conversations on or about August 20 and September 2, 1970. Approximately twenty months later, after preliminary discovery and status conferences, the defendants by letter, pursuant to a course of discovery by stipulation without subpoenas or formal demands, listed documents the defendants wished produced for inspection and copying. Seven months later, on November 8, 1974, the defendants repeated the request for the documents. A letter of February 6, 1975 reminded plaintiff's counsel that the documents were still to be produced. At a pretrial conference on April 25, 1975, where plaintiff, his son Perry, and plaintiff's counsel were present, the plaintiff agreed to produce the requested documents. On April 29, 1975, the district court judge sent a summation letter, which the court treated as an order, reminding the plaintiff's counsel of the agreement to produce the documents. On August 15, 1975, at another pretrial conference, again attended by the plaintiff, his son Perry, and plaintiff's counsel, the court ordered plaintiff to produce the remaining documents by September 19, 1975. 1 The court again sent a written summation of the conference to counsel on August 19, 1975, and once again specified that plaintiff was to produce the documents by the designated date.
The plaintiff did not produce the documents at the designated time, and defendants moved for dismissal under Fed.R.Civ.P. 37(b)(2)(C) on October 23, 1975. On November 24, 1975, Perry Margoles and plaintiff's counsel delivered the requested documents to defense counsel, who received them under the understanding that the receipt of the documents was without prejudice to defendants' motion to dismiss. The court heard oral argument on the motion on January 5, 1976. Based upon all the information before the court, including affidavits, briefs and arguments of counsel, the court made
a specific finding that the failure to produce herein is willful, that it is prejudicial, that the matter sought to be produced is highly relevant and material to the case and it was and is within plaintiff's control, and that the failure to produce that and to comply with the procedural orders of the Court has been so prejudicial that the sanction (of dismissal) is appropriate.
Subsequently, the court signed a formal written order reciting that the failure of the plaintiff to obey the orders for discovery was willful, and a judgment of dismissal was entered.
Three weeks later, on January 29, 1976, Perry Margoles submitted a 40-page, sworn letter to the district court judge explaining why the documentary production was delayed and specifically denying that he willfully or consciously disobeyed the court's order of August 15, 1975. This affidavit recited numerous facts and details which plaintiff's son believed were unknown to the district court judge prior to his consideration of the defendants' motion. Perry Margoles emphasized that the tardiness in the production of the documents "in no way was intended by us and did not constitute refusal to produce them." After apologizing for any inconvenience caused by the delay of several months in the documentary production, Perry's letter asked for the opportunity to answer at a hearing any question the judge might have in order to establish "to your satisfaction that I have acted in good faith and did not wilfully or consciously disobey your order."
On February 4, 1976, plaintiff moved to vacate the order of dismissal. Two weeks later, the defendants filed a 50-page brief in opposition to the motion. On February 24, 1976, Perry wrote a second, 19-page sworn letter which delineated the issue before the court and set forth facts which he deemed to be sufficient to justify reinstatement of the case. The letter noted that
(w)hether I intended to disobey your order, rather than the fact that I tardily obeyed it, is the sole issue as to whether this case should have been dismissed.
The record is devoid of any facts which would support a subjective judgment that my state of mind was to deliberately disobey your order . . . . Unlike other cases where the court was left with no alternative except to dismiss the case because a party had refused to produce documents sought for discovery by the opposing party, here there was no such refusal requiring your intervention.
The letter concluded by requesting that, consistent with the body of case law under Federal Rule 37(b)(2)(C), the judge reinstate the case and let justice be done according to its merits. Approximately one week later, plaintiff's counsel submitted a memorandum of law noting that the failure to produce the documents was not the fault of the plaintiff but of others.
On March 15, 1976, after reviewing the written record, including the various briefs and affidavits submitted in support of and in opposition to the Rule 60(b) motion, the district court found no reason to alter the order of dismissal that had earlier been entered and denied the motion. The court adhered to its view that the facts of the case demonstrated failures to comply with clear and repeated discovery orders on the part of the plaintiff and/or his agents and/or attorneys, that these failures were done either willfully or in conscious disregard of the court's specific decrees, and that there was ample justification for the entry of an order of dismissal under Fed.R.Civ.P. 37(b)(2)(C). Noting that another hearing on the matters had been requested, the court found that no additional oral argument or testimony would be appropriate.
The appellant contends that the action of the district court ignored the admonition of this court that "where an alternative, less drastic, sanction would be just as effective it should be utilized." Sapiro v. Hartford Ins. Co., 452 F.2d 215, 216 (7th Cir. 1972). After reviewing the record, we are left with some...
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...answer interrogatories on time despite numerous extensions, and where answers finally provided were grossly inadequate); Margoles v. Johns, 587 F.2d 885 (7th Cir. 1978) (dismissal affirmed where plaintiff failed to comply with District Court order requiring production of relevant documents ......
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Margoles v. Johns
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