McLeod, Alexander, Powel & Apffel, P.C. v. Quarles

Decision Date28 February 1990
Docket NumberNo. 89-2522,89-2522
Citation894 F.2d 1482
PartiesMcLEOD, ALEXANDER, POWEL & APFFEL, P.C., Plaintiff-Appellee, v. Fred H. QUARLES, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Gerson D. Bloom, Galveston, Tex., for defendant-appellant.

Kenneth J. Bower, Ervin A. Apffel, Jr., McLeod, Alexander, Powel & Apffel, Otto Hewitt, Kenneth C. Baker, Galveston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before GEE, JONES, and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Defendant Fred Quarles appeals from a default judgment entered for his failure to comply with discovery requests. Quarles claims that since he was not under an order to compel, sanctions were improper; moreover, he asserts that the district court erred in finding his conduct wilful and in bad faith. Finally, Quarles argues the trial court erred in awarding plaintiff McLeod, Alexander, Powel & Apffel, P.C. ("the law firm") costs and attorneys' fees.

I.

The law firm sued Quarles to collect legal fees totalling $11,797, representing charges for services provided to Quarles and his company, Commonwealth Airlines, in three transactions prior to the instant lawsuit. Quarles removed the case to federal court based upon diversity of citizenship. 1

Quarles received the law firm's first discovery requests on February 1, 1988. He responded with cursory objections and produced no documents. He also filed a motion for protection from discovery and for sanctions against the law firm for propounding discovery to him. On April 29, 1988, Quarles's motions were denied by a magistrate. In August 1988, the magistrate issued a docket control order requiring completion of discovery by October 24, 1988, and the law firm reiterated its discovery requests to Quarles. Quarles responded to the law firm's second set of discovery requests by restating the prior summary objections in an even more cursory form and by producing nothing.

On March 7, 1989, the law firm moved for sanctions against Quarles for discovery abuses or alternatively to compel discovery. Quarles argued in response that the court had no authority to deal with discovery because its docket control order had expired. On April 3, 1989, the magistrate found Quarles's discovery abuses wilful and in bad faith and recommended that his answers be stricken and default judgment for the law firm be entered. On April 26, 1989, the district court adopted the magistrate's recommendation.

On Friday, May 5, 1989, the law firm filed its application for costs, including attorneys' fees. On Monday, May 8, costs were taxed against Quarles by the clerk, and on May 9, Quarles objected to the $44,160 in attorneys' fees taxed against him. On May 18, 1989, Quarles appealed the district court judgment and the taxing of costs. There was no review of the taxing of costs in the district court.

II.

The magistrate's recommendation, which was adopted by the district court, stated that Quarles's responses to the law firm's requests for admissions and to the law firm's production requests were inadequate and improper under the Federal Rules of Civil Procedure. In order to demonstrate that the district court did not abuse its discretion, it is sufficient to review only Quarles's responses to the law firm's production requests, as these responses constituted Quarles's most egregious failures to comply with discovery rules.

The law firm requested from Quarles documents such as records relating to Quarles's relationship with Commonwealth Airlines, records relating to the case on which the law firm had done legal work for Commonwealth and Quarles and from which arose the billing dispute, documents related to previous lawsuits against attorneys, and cancelled checks and income tax returns from recent years. Over the thirteen-month period, Quarles produced no documents, and his objection to each request was virtually identical. All of the requests were supposedly "overbroad" and "propounded with the intent to harass, delay, and abuse." Most also were "irrelevant," and some were "privileged" as well. Defendant's most complete explanation of any of his individual objections was, "Objected to. Overbroad; irrelevant; privileged. Propounded with the intent to harass, delay and abuse." There was also a general objection of geographical inconvenience to all of the requests. In response to the law firm's reiterated requests for production, Quarles presented seven identical objections, each stating only, "Objection. Request is overly-broad, not specific, and creates a hardship on the producing party."

A.

Quarles now claims that the district court erred in not finding the law firm's requests irrelevant. We find, though, that most of its requests were relevant, as they sought information that was either admissible or "reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b). For example, the production request for materials related to prior lawsuits against attorneys sought evidence related to a habit or routine practice, which is "relevant to prove that the conduct on a particular occasion was in conformity with the habit or routine practice." Fed.R.Evid. 406; see Reyes v. Missouri Pac. R.R., 589 F.2d 791, 794 (5th Cir.1979). Since one of Quarles's primary defenses was that only his corporation, Commonwealth Airlines, was liable for the debt, production requests relating to defendant's relationship with Commonwealth Airlines were also relevant. In fact, in Quarles's specific responses to these requests, the word "irrelevant" was not present. Requested documents such as tax returns and cancelled checks would be relevant to show how much Quarles and Commonwealth Airlines paid on each other's bills and how closely their financial affairs were intertwined. Indeed, one of the law firm's assertions is that Commonwealth Airlines, as a company owned 100% by Quarles, was an alter ego of Quarles.

Moreover, even if some of the law firm's requests for production were irrelevant, Quarles must have a valid objection to each one in order to escape the production requirement. See Josephs v. Harris Corp., 677 F.2d 985, 991-92 (3d Cir.1982). The court in Josephs held that the "party resisting discovery 'must show specifically how ... each interrogatory is not relevant or how each question is overly broad, burdensome or oppressive.' " Id. at 992 (quoting Roesberg v. Johns-Manville Corp., 85 F.R.D. 292, 296-97 (E.D.Pa.1980)). These objections (overly broad, burdensome, and oppressive) were basically the same as those made by Quarles in the instant case. In Josephs it was held that to say an interrogatory was "overly broad, burdensome, oppressive and irrelevant" was "not adequate to voice a successful objection to an interrogatory." Id. We see no reason to distinguish the standards governing responses to interrogatories from those that govern responses to production requests.

In Panola Land Buyers Ass'n v. Shuman, 762 F.2d 1550, 1559 (11th Cir.1985), one party objected to production requests and interrogatories by stating that the discovery requests were "unnecessary, too long, too broad, require too much time, are expensive to complete, are irrelevant, are improperly timed, and entail unreasonable geographic compliance." With regard to those objections, the court held that "[n]o mention of the Rule 26(b) factors is made in sufficient specificity to allow the magistrate and the district court, absent an abuse of discretion, to grant the motion for a protective order. The recitation of expense and burdensomeness are merely conclusory." Id. Objections in the instant case were even less specific than those in Panola. Therefore, where that court held that it would be an abuse of discretion to grant a protective order based upon such objections, the magistrate's denial of a protective order in the instant case was certainly not an abuse of discretion. Hence, the district court did not abuse its discretion in finding the law firm's requests for discovery relevant, Quarles's objections to discovery insufficient, and Quarles's request for a protective order unmeritorious.

B.

Quarles next argues that sanctions cannot be imposed upon him because he did not violate any order of the court. Quarles claims that the law firm had a duty first to request an order to compel and that the court could not impose sanctions until it issued such an order and Quarles subsequently failed to comply with it.

First, an order is not always a prerequisite to the imposition of sanctions. Courts have held that rule 37(b) sanctions can be imposed even without an existing order to compel. The Seventh Circuit explained,

Although a motion to compel usually precedes the imposition of Rule 37(b) sanctions, a formal motion is not always necessary. In general, where a party has received adequate notice that certain discovery proceedings are to occur by a specific date, and that party fails to comply, a court may impose sanctions without a formal motion to compel the discovery from the opposing party.

Tamari v. Bache & Co. (Lebanon) S.A.L., 729 F.2d 469, 472 (7th Cir.1984). See also Properties Int'l Ltd. v. Turner, 706 F.2d 308, 310 (11th Cir.1983).

Second, although no order to compel had been granted here, Quarles did violate an order of the court. On August 3, 1988, the court had issued a docket control order requiring discovery completed by October 24, 1988. The order expressly warned, "Failure to comply with this order will result in sanctions pursuant to Fed.R.Civ.P. 16(f)." That rule specifically states that if a party fails to obey a schedule or pre-trial order, the judge may sanction the parties pursuant to rule 37(b); rule 37 sanctions include the entry of default judgment.

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