Marshall v. Segona, 79-2790

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore BROWN, TJOFLAT and FRANK M. JOHNSON, Jr.; JOHN R. BROWN
Citation621 F.2d 763
Parties24 Wage & Hour Cas. (BN 927, 89 Lab.Cas. P 33,919 Ray MARSHALL, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. Johnny SEGONA, d/b/a Highway 190 Truck Stop and as Truckem Up Paradise, Defendant-Appellee. Summary Calendar.*
Docket NumberNo. 79-2790,79-2790
Decision Date16 July 1980

Donald S. Shire, Mary-Helen Mautner, Attys., U.S. Dept. of Labor, Washington, D.C., for plaintiff-appellant.

Williams & Fisher, Nathan S. Fisher, Baton Rouge, La., for defendant-appellee.

Appeal from the United States District Court for the Middle District of Louisiana.

Before BROWN, TJOFLAT and FRANK M. JOHNSON, Jr., Circuit Judges.

JOHN R. BROWN, Circuit Judge:

F.R.Civ.P. 37 discovery sanctions are involved in this appeal. Because of the Secretary of Labor's failure to timely answer interrogatories, the District Court dismissed the Secretary's suit to enforce the Fair Labor Standards Act, 29 U.S.C.A. Secs. 201 et seq. ('Act'). We reverse and remand.


When this suit was filed on March 20, 1978, Johnny Segona owned and operated two truckstops located near Port Allen, Louisiana. The Secretary alleged that certain unnamed employees had not been paid the minimum wage nor the required premium for overtime work. Segona was also alleged to have failed to accurately record the names of his employees, their hours, and wages, in violation of 29 U.S.C.A. Sec. 211(c) and 29 CFR Part 516. Injunctive relief and the payment of back wages were sought.

Segona's initial response was to motion for a more definite statement. F.R.Civ.P. 12(e). On May 2, 1978, the District Court granted the motion, and directed the Secretary to amend its complaint by supplying the names of the underpaid employees, the period in which each was underpaid, and their working locations. The Secretary then motioned the District Court to reconsider its order in light of the contrary result in Mitchell v. EZ Way Towers, Inc., 269 F.2d 126 (5th Cir. 1959) (Brown, J.), a factually similar case. On June 15, 1978, the District Court rescinded its order, but warned that it would 'require the plaintiff to do everything, the hard way, that was contained in that order, that it could have done the easy way by simply complying with the Court's order of May 2, 1978.' The Court further ordered that:

all of the information sought by the defendant in its motion for a more definite statement filed on April 10, 1978 may be obtained by the defendant by the filing of interrogatories, or by the taking of depositions, and the plaintiff is here by DIRECTED to furnish, if directed to do so by interrogatory or by deposition, all of the information reqested by defendant in its motion for a more definite statement filed on April 10, 1978 insofar as that information may be in the possession of, under the control of, or obtainable by the plaintiff. Failure to furnish such information, if requested by interrogatory or by deposition, will result in dismissal of this suit.

Segona filed nineteen interrogatories in July, the first four of which asked for the names, locations, and working hours of all the underpaid employees. On August 29, the Secretary timely answered but the answers to the first four interrogatories did not provide the information requested. The Secretary stated that answers to those four interrogatories were being compiled, that the compilation was however 'a difficult matter because of the incompleteness of defendant's time [sic] and payrolls,' that 'an additional review of such records will probably be necessary,' and that the information would be voluntarily furnished to Segona when compiled.

Two months passed without further communications from the Secretary. On November 14, Segona motioned for F.R.Civ.P. 37 sanctions based on the Secretary's failure to answer the four interrogatories. A hearing on the motion was set for December 15. On December 11, the Secretary filed a reply, stating that each of Segona's employees including 27 names furnished to Segona in August, had been underpaid in every week during the relevant time period. By a minute order of December 14, the District Court denied Segona's motion to dismiss but stated that '[d]efendant . . . has never received answers to [the first four] interrogatories by the plaintiff . . . and there has been no apparent attempt made to answer those interrogatories.' 1 Despite this perceived failure, the Court, pursuant to F.R.Civ.P. 37(a) and 'out of an abundance of caution,' ordered the Secretary to 'fully and completely' answer within 30 days. The Court stated that no extension of time would be granted and that failure to comply would upon request result in dismissal.

On January 19, 1979, the Secretary filed an exhibit of more than 100 pages, setting out detailed wage and hour information for each employee. Because the 30 days ended on a Saturday, the answers were due on Monday, January 15. The answers were thus four days late.

The Sanctions Emerge

Segona took no immediate action with respect to the Secretary's four-day error. Over the next two months, Segona was engaged in answering the Secretary's discovery as well as changing his lawyers. No motion for dismissal was made. But it was soon apparent that the Secretary was not to escape his January 19 error so easily.

On March 23, 1979, Segona moved to dismiss under Rule 37(b) because of the Secretary's four-day delay in filing the supplemental answers. In response, the Secretary filed two affidavits. In one, the Labor Department lawyer in charge of the case stated that he miscalculated the due date, by adding 30 days to the date he received the order rather than to the entry date. Attached, as evidence, was a letter written by him on December 28, 1978, reflecting his misunderstanding during the relevant period. The letter stated in part: '. . . we [have] received a court order directing us to identify by January 19, 1978, each individual due back wages and the number of hours for which such wages are due. . . .' Another affidavit indicated that preparation of the answers was delayed by 'Segona's three-day delay in providing necessary records which he had agreed to provide.' These facts concerning the late filing of the supplemental answers are not disputed by Segona.

By minute order of April 19, 1978, the District Court granted Segona's motion to dismiss with prejudice. The Court stated that the Secretary was in essence 'almost a year late' in filing answers, rather than only four days late. 2 And based upon a brief review of the litigation but without reference to the Secretary's affidavits, the Court concluded that the Secretary had 'been guilty of such bad faith and of such callous disregard for the Court's orders that this motion to dismiss should be granted.'

The final action by the District Court was a minute entry on July 19, 1979, denying the Secretary's motion to reconsider. The Court there concluded that the Secretary 'had a reckless disregard for the order of this Court despite the fact that it had every opportunity to answer . . . and comply with the Court's order well within the time allowed.' The Court further characterized the Secretary's failure to comply as 'willful.' The District Court thus reaffirmed its April 19, 1979, order. The Secretary then perfected this appeal.

Dismissal As A Sanction

Rule 37(b)(2) provides that: 'If a party . . . fails to obey an order to provide or permit discovery, . . . the court . . . may make such orders in regard to the failure as are just. . . .' Plainly, the 'order' referred to is an order under subsection (a) of that Rule. A number of possible sanctions are set out by Rule 37(b), including: orders that certain facts be taken as established or evidence excluded; 3 that claims or defenses be unopposed or pleadings struck; 4 that reasonable expenses caused by the recalcitrant party be paid; 5 or that the party be held in contempt. 6 And there is also the sanction invoked in this case, dismissed of the law suit. 7

The bandwidth of the District Court's power to impose Rule 37 sanctions is broad indeed. We will not interfere unless important historical findings are clearly erroneous or--by the imposition of sanctions which are not 'just'--there has been an abuse of discretion. We are mindful that the use of even severe sanctions has a salutary deterrent effect on parties to other law suits and their counsel and that great army of yet unknowns who will for one reason or another have cases and counsel. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643, 96 S.Ct. 2778, 2781, 49 L.Ed.2d 747, 751 (1976) (per curiam). 8

We have upheld the use of 'the draconian remedy of dismissal' in suitably 'extreme circumstances.' Bonaventure v. Butler, 593 F.2d 625, 626 (5th Cir. 1979) (dismissal affirmed where plaintiff three times refused to appear for deposition). See Emerick v. Fenick Industries, Inc., 539 F.2d 1379 (5th Cir. 1976) (default entered where defendant ignored three orders to produce documents); Jones v. Louisiana State Bar Association, 602 F.2d 94 (5th Cir. 1979) (dismissal where plaintiff deliberately refused two orders to produce tape recording and notes which plaintiff admitted possession of); Venzara v. Continental Training Services, Inc., 615 F.2d 919 (5th Cir. 1980) (Fifth Circuit Rule 21 affirmance of default judgments). Two other of our decisions which are similar yet distinguishable are Factory Air Conditioning Corp. v. Westside Toyota, Inc., 579 F.2d 334 (5th Cir. 1978), and In re Liquid Carbonic Truck Drivers Chemical Poison Litigation, 580 F.2d 819 (5th Cir. 1978). In the first, the defendant was ordered on May 16 to supplement its interrogatory answers by May 31. Nothing was filed, as the defendant was apparently disregarding the request of his own attorney for information. On July 20, the District Court entered yet a second order, allowing defendant until July 27 to answer. The plaintiff, on August 10,...

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