McCaskill v. Texaco, Inc., Civ. A. No. 6281-70.

• Citation: 351 F. Supp. 1332
• Decision Date: 20 November 1972
• Docket Number: Civ. A. No. 6281-70.
• Parties: Ronald E. McCASKILL and Leander McCary, Plaintiffs-Intervenors, v. TEXACO, INC., Defendant.
• Court: U.S. District Court — Southern District of Alabama

351 F. Supp. 1332

Ronald E. McCASKILL and Leander McCary, Plaintiffs-Intervenors, v. TEXACO, INC., Defendant.

Civ. A. No. 6281-70.

United States District Court, S. D. Alabama, S. D.

November 20, 1972.

COPYRIGHT MATERIAL OMITTED

William H. Saliba, Mobile, Ala., for plaintiffs-intervenors.

David W. Green & Sidney H. Schell, Mobile, Ala., and William C. Weitzel and Charles F. Kazlauskas, Jr., Legal Dept., Texaco, Inc., New York City, for defendant.

HAND, District Judge.

INTRODUCTION

This is an antitrust action commenced against Texaco Inc. ("Texaco") on September 25, 1970 by two former Texaco dealers. On March 16, 1971, five additional former Texaco dealers intervened as plaintiffs, and, thereafter, on June 1, 1971, plaintiffs Leander McCary ("McCary") and Ronald E. McCaskill ("McCaskill") and McCaskill's former wife, Ivy McCary, also former Texaco dealers, intervened. The first seven of the above plaintiffs were represented by Charles Erwin, Esq. The last three plaintiffs, McCary, McCaskill and Ivy McCary were and are represented by William H. Saliba, Esq.

On April 29, 1972, plaintiff Ivy McCary was stricken as a party plaintiff for failure to file answers or objections to Texaco's interrogatories. On May 10, 1972, all of the remaining plaintiffs, except McCary and McCaskill, entered into stipulations voluntarily dismissing the action with prejudice. Accordingly, there are now two plaintiffs remaining in the action, McCary and McCaskill, against whom the present motion is directed.

At the outset, the Court feels that it would be appropriate to recite certain aspects of the procedural background of this action.

1. On January 4, 1972, Texaco filed and served separate sets of interrogatories directed to plaintiff Ronald E. McCaskill, plaintiff Leander McCary and plaintiff Ivy McCary. (As indicated above, plaintiff Ivy McCary was later ordered stricken as a party plaintiff by reason of her failure to file answers or objections to these interrogatories.) None of these plaintiffs answered, objected or otherwise responded to these interrogatories within the time provided by the Federal Rules of Civil Procedure.

2. Thereafter, on February 8, 1972, all three plaintiffs filed identical motions seeking to have said interrogatories stricken. None of these moving parties submitted briefs, memoranda or any other papers in support of these motions nor did any of them or their counsel even appear at the hearing of these motions on February 17, 1972.

3. On March 1, 1972, this Court overruled said motions and ordered the three plaintiffs to file answers to the aforesaid interrogatories within fifteen days. Said March 1, 1972 Order further expressly provided that any plaintiffs' failure to do so would subject him "to suffer a dismissal of the cause as to that plaintiff or such other penalty or penalties as the law provides."

4. Evasive and incomplete answers were filed on behalf of plaintiffs McCaskill and McCary on March 13, 1972 and March 14, 1972, respectively. No answers were filed on behalf of Ivy McCary. On defendant's motion to dismiss, this Court, on April 29, 1972, ruled as follows:

"The records of this court show that IVY McCARY has failed to file her answer or objections to the interrogatories and to comply with the order of this Court dated March 1, 1972.

"It is, therefore, the ORDER of this Court that IVY McCARY be and she hereby is STRICKEN as a party plaintiff to this cause of action.

"It is the opinion of the Court that the answers of LEANDER McCARY to the said interrogatories are evasive or incomplete and, therefore, are considered a failure to answer the interrogatories as required by Rule 33 F. R.CIV.P.

"RONALD E. McCASKILL has attempted to answer the interrogatories simply by adopting the answers as filed by LEANDER McCARY. The Court considers this adoption a complete failure bordering on a willful failure to answer the interrogatories as required by Rule 33 F.R.CIV.P. and, therefore, the answers will not be accepted by the Court.

"LEANDER McCARY and RONALD E. McCASKILL are hereby ordered to file in this court within ten (10) days from the date of this order complete, full and informative answers to the interrogatories heretofore propounded to them by the defendant. Failure to comply with this order will be sufficient grounds for the court on its own motion to strike such party as a party plaintiff in this action."

5. On May 9, 1972, further purported answers to defendant's interrogatories were served by plaintiffs McCaskill and McCary and supplemental purported answers of plaintiff McCary were served on May 19, 1972.

6. On June 2, 1972, defendant filed a motion, pursuant to Rule 37(b) of the Federal Rules of Civil Procedure, for an order dismissing the action on the ground that plaintiffs' latest purported answers to defendant's interrogatories were a sham, evasive and insufficient and constituted a willful failure to comply with this Court's Order of April 29, 1972.

7. This Court held a pretrial hearing on this matter on July 10, 1972, and during that hearing reviewed the purported answers served by plaintiffs. This Court found that the purported answers of plaintiffs were again substantially deficient, but again allowed plaintiffs an opportunity to file full and complete answers, allowing plaintiffs until July 31, to do so.

8. On July 28, 1972, plaintiffs filed their third purported set of answers to defendant's interrogatories. Once again, in contravention of this Court's April 29, 1972 Order, plaintiffs filed a single set of answers for both plaintiffs. In addition, the purported answers were unsigned and unsworn to by either party, and in violation of the specific direction of this Court at the July 10, 1972 hearing, the purported answers failed to set out the specific interrogatories being answered. Accordingly, the purported answers were not answers at all. Moreover, plaintiffs simply failed to answer a number of interrogatories and as to those which they purported to answer, the answers were deficient.

9. By September 18, 1972, plaintiffs had not yet filed answers to those interrogatories which they had failed to answer by July 31, 1972, the date fixed by this Court at the July 10, 1972 hearing for plaintiffs' answers to be filed. Significantly, plaintiffs had not even sought any extension from this Court for additional time. Moreover, plaintiffs had taken no steps to remedy the deficiencies in the answers of July 28, 1972. Accordingly, on September 18, 1972, this Court addressed a letter to plaintiffs' counsel directing that plaintiffs supply full and complete answers, in accordance with the Court's previous orders, no later than October 2, 1972.

10. Finally, on September 29, 1972 and September 30, 1972, respectively, plaintiff McCaskill and plaintiff McCary each served their fourth set of answers to defendant's interrogatories.

11. Confronted with the difficulty of obtaining from plaintiffs sufficient answers to defendant's interrogatories, this Court made a diligent effort to obtain from plaintiffs a meaningful pretrial order, defining the precise issues of this case and setting out the specific claims asserted by plaintiffs for money damages and plaintiffs' computations thereof.

12. Despite the Court's efforts in attempting to prepare a meaningful pretrial order, plaintiffs continued their practice of evading this Court's orders and refusing to provide sufficient information upon which to base a pretrial order. Thus, this Court was required to state at the pretrial hearing held on July 10, 1972:

"What I am saying is that this court has not been helped by any pre-trial conference that we have held in trying to delimit the issues and define what they are so as to be in a position to rule on matters of evidence and to rule on matters of law and that is the purpose of the pre-trial conference and it is specifically set forth in the order of this court that it will be done in that fashion and you will not walk into that courtroom and sit down there with a bowl full of tossed green salad and pull out chunks from time to time before the jury in hopes of making a prima facie case. We are not going to try the case that way.

"It is going to be spelled out in accordance with the court's pre-trial order. You are going to set out the conspiracy, who was involved and so forth or we are not going to trial." (Transcript of Pre-trial Hearing, July 10, 1972, pp. 20-21).

13. Finally, after this Court had futilely attempted, on five separate occasions, to set and conduct a meaningful pretrial conference, this Court on August 16, 1972, entered an order that plaintiffs answer a Legal Questionnaire, prepared by this Court, in a final attempt to define the issues of the case and to specify plaintiffs' specific claims for money damages. Plaintiffs were allowed until September 15, 1972, to file their responses, and on that date they filed their Answer to Legal Questionnaire. It is on the basis of the specific claims for money damages alleged by plaintiffs in their Answers to Texaco's Interrogatories and in their Answers to Legal Questionnaire (Plaintiffs' Answer to Texaco Interrogatory 21, Plaintiffs' Answer to Legal Questionnaire II.4; see also Plaintiffs' Answer to Texaco Interrogatory 16 and plaintiffs' Answer to Legal Questionnaire I.11), that this Court now defines the specific claims of plaintiffs and the issues presented thereby. Plaintiffs assert two claims. The first is a claim under Section 2(a) of the Robinson-Patman Act, 15 U.S.C. Section 13(a), for damages arising out of Texaco's alleged price discrimination. The second is a claim under Section 1 of the Sherman Act, 15 U.S.C., Section 1, for damages in the form of an overcharge to Plaintiffs arising out of Texaco's alleged participation in a horizontal conspiracy to fix prices. This Court finds that plaintiffs have had ample opportunity, far and above that to which a litigant would normally be entitled pursuant to the Federal Rules...