Schleper v. Ford Motor Co., Automotive Division, 78-1147
| Decision Date | 23 October 1978 |
| Docket Number | No. 78-1147,78-1147 |
| Citation | 585 F.2d 1367 |
| Parties | Gary J. SCHLEPER v. FORD MOTOR COMPANY, AUTOMOTIVE DIVISION, Twin Cities Assembly Plant and the UAW, Local 879. In re Contempt Proceedings Seth R. PHILLIPS, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Seth R. Phillips of Phillips & Petersen, Newport, Minn., for appellant.
No brief was filed and no argument was made for appellee.
Before HEANEY and STEPHENSON, Circuit Judges, and BECKER, * Senior District Judge.
Seth R. Phillips, an attorney, appeals from an order of the district court, 1 finding him in contempt of court as a result of the use of profane language in answer to an interrogatory. Appellant contends that, when read in proper context together with other interrogatories, the objectionable language is a proper, substantive response given in good faith, and is not directed at either the court or the opposing counsel. In addition, appellant argues 2 that the alleged contumacious conduct occurred outside the presence of the court, so that pursuant to Fed.R.Crim.P. 42(b), appellant must be provided with notice and an opportunity to be heard before a finding of contempt can be made. We reverse and remand.
On July 15, 1977, appellant Phillips filed a complaint in Schleper v. Ford Motor Co. The complaint arose from an arbitration proceeding. The central contention of the plaintiff, Gary J. Schleper, was that he was not adequately represented by his union representative at the arbitration hearing. An essential element of Schleper's complaint was that he had been subjected to continuing dehumanizing treatment by both defendant Ford and codefendant United Auto Workers Local 879. A significant portion of this claim was that obscene, abusive language was directed toward Schleper as ongoing harassment and provocation.
On July 27, 1977, Ford answered the complaint, and along with their answer submitted 19 interrogatories, each with subparts, for Schleper to answer. On September 9, 1977, attorney Phillips mailed an unsigned and incomplete set of answers to Ford, with a brief explanation that the delay was due to the time demands of Phillips' schedule in court. Phillips promised that a complete and properly signed set of answers would be forthcoming. This unsigned set of answers contained the response to Interrogatory 6(b) which is central to this appeal.
On November 4, 1977, Ford wrote Phillips, who had still not supplied completed, signed answers to the interrogatories, and extended the time to forward signed answers until November 11, 1977. Ford threatened to seek an order to compel answers if this deadline was not met. On November 9, 1977, attorney Phillips forwarded completed and signed answers. The answer to Interrogatory 6(b) was unchanged from its form in the incomplete set mailed by Phillips on September 9, 1977.
Interrogatory 6, consisting of a general question and four subparts relating to events at the arbitration proceeding, appears as follows:
INTERROGATORY NO. 6. Set forth in detail all facts upon which you rely in alleging that your Union representative did not cooperate with you in any manner in presentation of the arbitration case alleged in paragraph 12 of your Complaint.
a. Specify each witness that was not called who you requested your Union representative to call.
b. With regard to each such witness, set forth in detail the testimony which you believed said witness would have offered to the arbitrator had he testified at the arbitration hearing.
c. With regard to each such witness, state the reason given to you by your Union representative for not calling the witness.
d. State the reason given you by the Union representative for his refusal to submit the written testimony you had prepared to the arbitrator.
The answer to Interrogatory No. 6 dated November 9, 1977, and signed by both Schleper and Phillips, states:
ANSWER. Witnesses were called for their testimony regarding the discharge grievance. Witnesses that I requested for the prior seven grievances were not called.
a. Tom Laney, Richard Scott, Mike Hadfield, Carlton McCoy, Wayne Plemmel.
b. Fuck you.
c. I told him that my ass was on the line here and I wanted these witnesses called and he said I should have thought of my ass back in 1975. He added that he was my exclusive representative and that he'd decide who to call or not to call.
d. No reason was given. The "representative" simply refused to submit them.
It was at a hearing on motions by each defendant for summary judgment, held on November 18, 1977, that Phillips suggests he first learned that counsel for Ford had regarded the answer to Interrogatory 6(b) as a personal insult. Following this hearing, attorney Phillips claims he verified with Schleper that the answer to 6(b) was an answer relating to the language of the testimony that Schleper believed the witnesses not called at the arbitration hearing would have offered.
On November 21, 1977, Phillips received notice of a motion by Ford to dismiss pursuant to Fed.R.Civ.P. 11 and 37 based upon plaintiff's continuing and disrespectful failure to provide adequate interrogatory answers. Hearing on this motion was set for December 16, 1977.
Orders denying the two defendants' original motions for summary judgment were issued November 28, 1977. At about this time, Phillips claims he conferred again with Schleper concerning the answer to Interrogatory 6(b). At this meeting, Schleper revealed that he had allowed a friend who was a former co-worker at Ford to draft the answers to the interrogatories while Schleper was present. Following this new information, Phillips and Schleper expanded the answer to Interrogatory 6(b) to read: "The persons would have testified that the foreman said, 'Fuck you.' " Phillips mailed this amended answer to both defendants and to the court, along with a letter of apology for any affront they may have found in the form of the answer.
Phillips later reviewed the answers to all interrogatories with Schleper. This review resulted in several changes and amplifications which were included in a set of amended answers to interrogatories which were signed and mailed to both defendants on December 6, 1977. The amended answer to Interrogatory 6(b) stated:
b. The persons would have testified that the foreman said, "Fuck you." And on the Eighth grievance the committeeman said, "Fuck you," when I asked to make my health and safety grievance. With respect to the misrepresentation by Lew Caulford, the people present were George Schmitt, Bob Killeen and Eugene Newman.
On December 16, 1977, the hearing was held on Ford's motion to dismiss pursuant to Fed.R.Civ.P. 11 and 37. At that hearing counsel for Ford admitted that a Rule 37 motion to dismiss should follow the failure of a party to respond adequately to an order of the court to compel discovery, and that such an order had not been sought by Ford. Ford suggested, however, that in light of Phillips' recalcitrance and repeated use of the two-word expletive in answer to Interrogatory 6(b), dismissal might be appropriate even without Phillips' refusal to comply with a court order. Ford further suggested at this hearing that the court consider alternative sanctions available under Rule 37. The court did not direct any question regarding contempt at attorney Phillips at any time during this hearing, nor did the court alert Phillips to the possibility he might be held in contempt until its finding of contempt at the close of the hearing. Throughout the hearing, Phillips had addressed himself to the issue of why the complaint should not be dismissed.
On December 28, 1977, the court issued its formal order in which it found that Schleper's answers to Ford's interrogatories, and particularly to Interrogatory 6, were contemptuous. It further found that Schleper and Phillips were in willful contempt of court as a result of their actions in filing the answers to the interrogatories. As a fine for contempt of court, the court ordered Phillips to pay the clerk of court the sum of $400, and Schleper to pay the clerk of court the sum of $100. Further, the court found that Ford had incurred additional attorney fees as a result of the actions of Phillips and Schleper, and ordered Schleper to pay Ford the sum of $300 for attorney fees. The court stated that if the amounts specified to be paid by Schleper were not paid before January 31, 1978, the court would enter an order dismissing the action against Ford with prejudice. This appeal followed.
Fed.R.Civ.P. 37(b)(2)(D) authorizes imposition of the sanction of contempt of court in certain circumstances. Rule 37(a)(2) provides that if a party fails to answer an interrogatory, the discovering party may move for an order compelling an answer. Rule 37(b)(2) provides that if a party fails to obey an order under Rule 37(a)(2) to provide or permit discovery the court may then impose sanctions including contempt of court.
In the present case there was at no time an order entered by the district court requiring the plaintiff to answer the interrogatory. Two recent Eighth Circuit opinions clearly hold that the sanctions of Rule 37(b) are not applicable until there has been an order by the court compelling discovery. Fisher v. Marubeni Cotton Corp., 526 F.2d 1338, 1341 (8th Cir. 1975); Fox v. Studebaker-Worthington, Inc., 516 F.2d 989, 994-95 (8th Cir. 1975). Fisher v. Marubeni Cotton Corp., supra, 526 F.2d at 1341. Therefore, the court...
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Gustafson, In re
...found summary contempt to be a constitutional violation in the absence of a threat to the proceedings. See also Schleper v. Ford Motor Co., 585 F.2d 1367, 1371-72 (8th Cir. 1978) (summary citation for contemptuous answer to interrogatory is due process violation); United States v. Marra, 48......
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