Searock v. Stripling

• Decision Date: 17 July 1984
• Docket Number: No. 82-6104,82-6104
• Citation: 736 F.2d 650
• Parties: SEAROCK, d/b/a Allied Marine, Plaintiff-Appellee, v. Greg STRIPLING, Counter-Claimant-Appellant, AMF Inc., d/b/a Hatteras Yachts and Aetna Insurance Co., Third-Party Defendants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 650

736 F.2d 650

39 Fed.R.Serv.2d 716

SEAROCK, d/b/a Allied Marine, Plaintiff-Appellee, v. Greg STRIPLING, Counter-Claimant-Appellant AMF Inc., d/b/a Hatteras Yachts and Aetna Insurance Co., Third-Party Defendants.

No. 82-6104.

United States Court of Appeals Eleventh Circuit.

July 17, 1984.

Thomas D. Lardin, Weaver, Weaver & Lardin, P.A., Fort Lauderdale, Fla., for Stripling.

Smathers & Thompson, Miami, Fla., Rodney Earl Walton, Fitzgerald, Taylor & Zwicky, or Ronald Fitzgerald, Susan Powell Sistare, Fort Lauderdale, Fla., for plaintiff-appellee.

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

Before GODBOLD, Chief Judge, and JOHNSON and CLARK, Circuit Judges.

JOHNSON, Circuit Judge:

This appeal presents the single issue of whether the district court abused its discretion in dismissing appellant Stripling's counterclaim as a sanction under Fed.R.Civ.P. 37(b)(2) for failure to comply with a discovery order. ¹ Holding that it did, we reverse and remand this case for reinstatement of Stripling's counterclaim.

This lawsuit was commenced by Allied Marine to recover payment for work done on a vessel, the "LUNITA K," purchased by Stripling from Allied Marine. This claim was ultimately tried to the court, and judgment entered for Allied Marine for $19,572.71. Stripling counterclaimed against Allied Marine, claiming that the vessel was negligently designed and that, as a result, the vessel caught fire, sank and was totally destroyed. Stripling sought damages in excess of $280,000.00 for the value of the vessel and the value of his personal property lost when the vessel sank.

On May 12, 1981, Allied Marine took the deposition of Stripling. Stripling testified that entities in addition to Allied Marine had done repair work on the vessel, provided the names of these entities, and stated that all of the work orders and documents reflecting the work done by entities other than Allied Marine had been on board the vessel when she went down. Stripling, however, volunteered, over the objection of his counsel, to get copies of these documents for Allied Marine since he lived in Alabama where the repair work had been done. Stripling stated that he could get copies of repair invoices from Alabama shops that had worked on the vessel, and told Allied Marine's counsel that "[y]ou can get [copies], too. All you have to do is write them a letter." Stripling also promised to send Allied Marine a list of the personal property lost with the vessel and testified that all of his receipts for this property were on board the vessel when she sank.

The day following Stripling's deposition, Allied Marine filed the request for production that is central to this appeal. That request sought production of photographs of the vessel sinking, a list of personal property that went down with the vessel, and receipts for this property, and asked for:

All documents reflecting repair work done on the vessel "LUNITA K" by persons or entities other than Searock, Inc., d/b/a Allied Marine. This should include repair work done by Detroit, the Cruisair dealer in Mobile (Joe Goodwin), B & B Marine, and Dog River Marina. This should include not only documents in the possession of the Defendant, but also the ones which the Defendant can easily obtain as testified to in his deposition.

A chronological review of the subsequent history of this request for production provides the framework for our disposition of this case.

On July 23, 1981, Stripling responded to the request for production by providing Allied Marine with photographs of the vessel sinking and forty-nine repair invoices from Orange Beach Marina. Stripling's response stated that the invoices were those "thus far received," and that the list of personal property and receipts would be forthcoming.

On August 20, Stripling filed a supplemental response consisting of additional photographs of the vessel. Stripling's counsel informed Allied Marine that Stripling was in the process of a diligent search for the invoices and receipts, was having difficulty obtaining them, and would forward them to Allied Marine as soon as he received them.

On September 29, Allied Marine filed a motion pursuant to Rule 37 seeking an order compelling production of the repair invoices, the list of personal property and receipts. On October 8, Stripling filed a supplemental response consisting of a list of, as well as prices for, the personal property. On October 21, the district court granted Allied Marine's motion to compel production of the repair invoices and receipts for the personal property.

On November 12, Allied Marine moved for sanctions, including dismissal of Stripling's counterclaim, under Rule 37 on the ground that no invoices or receipts had been forthcoming. On November 30, Stripling responded to the motion for sanctions, stating that he had requested the repair invoices, that no responses had been received, that he was again contacting the repair shops to obtain these documents, and that likewise, although he had contacted the stores where the personal property had been purchased and requested receipts, none had been provided. Stripling's motion concluded:

Defendant is attempting to obtain all documentation requested by Plaintiff and which this Court has ordered to be produced, and is also attempting to reconstruct items which were destroyed, but as of this date, has been unable to do so. This Defendant can only state to this Court that he is making every effort to comply with this Court's directives and Plaintiff's motion for sanctions should be denied.

On December 4, the district court entered an order requiring Stripling to produce the receipts and invoices within ten days of the date of the order, or suffer the dismissal of his counterclaim. Stripling moved for clarification or reconsideration of this order on the grounds that he had complied with most of the request for production, that he was making a diligent effort to produce the requested documents and to reconstruct items burned with the vessel, and that the counterclaim should not be dismissed for his inability to promptly provide the repair invoices and receipts.

On December 17, Allied Marine again moved for sanctions, including dismissal, under Rule 37. On December 18, the district court entered an order dismissing Stripling's counterclaim. On December 23, Stripling filed a motion for relief from this order, again stating that he had done his best to comply with the discovery requests, but had been unable to produce invoices and receipts of which he currently did not have a copy. On January 6, 1982, the district court entered an order setting aside its previous order dismissing the counterclaim; finding that the documents were essential for Allied Marine to defend against the counterclaim, the district court gave Stripling until January 20 to furnish the documents or suffer the dismissal of his counterclaim. On January 19, Stripling responded to that order by producing letters from the two marinas that did write him back concerning repair work they had done on the vessel ², advised the district court that these were the only documents he could obtain despite diligent efforts, and stated that the documents requested were not in his possession or control, having gone down with the vessel.

On January 21, Allied Marine filed its third motion for sanctions under Rule 37. On January 29, the district court entered its final order in this case, which is the subject matter of this appeal. The district court declared Stripling's statement concerning his inability to produce the documents to be an untimely objection to the request for production, and proceeded to dismiss the entire counterclaim.

The legal standards governing our review of the district court's exercise of its discretion in this case are clear. Previous cases decided by this Court have noted that the district court's discretion under Rule 37 is broad but not unlimited. The limits placed on this discretion have been fashioned in light of the recognition that dismissal under Rule 37 "is a sanction of the last resort, applicable only in extreme circumstances." Emerick v. Fenick Industries, Inc., 539 F.2d 1379, 1381 (5th Cir.1976). ³ A finding of such extreme circumstances necessary to support the sanction of dismissal must, at a minimum, be based on evidence of the sanctioned party's willfulness, bad faith or fault in failing to comply with a discovery order. E.E.O.C. v. Troy State University, 693 F.2d 1353, 1354 (11th Cir.1982). Thus, it is well established that a party's simple negligence or other action grounded in misunderstanding of a discovery order does not justify the "use of the Draconian remedy of dismissal." Id. at 1357, quoting Marshall v. Segona, 621 F.2d 763, 767 (5th Cir.1980). It is equally well established that a party's inability to comply with a discovery order will not support the sanction of dismissal:

[R]ule 37 should not be construed to authorize dismissal of this complaint because of petitioner's noncompliance with a pretrial production order when it has been established that failure to comply has been due to inability, and not to willfulness, bad faith, or any fault of petitioner, Societe Internationale v. Rogers, 357 U.S. 197, 212, 78 S.Ct. 1087, 1096, 2 L.Ed.2d 1255 (1958); see also National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976).

Stated differently, "[w]hen the disobedient party shows that his recalcitrance was based on factors beyond his control ... a reviewing court is justified in terming the dismissal an abuse of discretion." Emerick v. Fenick Industries, Inc., 539 F.2d 1379, 1381 (5th Cir.1976).

Finally, this Court has reviewed two other factors in determining whether dismissal under Rule 37 constitutes an abuse of the district court's discretion. "Whether the other party's preparation for trial was substantially prejudiced is a consideration," M...