Thomas v. U.S., 75--1215

• Decision Date: 14 May 1976
• Docket Number: No. 75--1215,75--1215
• Citation: 531 F.2d 746
• Parties: 76-1 USTC P 16,223 Thomas C. THOMAS, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 746

531 F.2d 746

76-1 USTC P 16,223

Thomas C. THOMAS, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 75--1215.

United States Court of Appeals Fifth Circuit.

May 14, 1976.

Jerry Lastelick, Jeffrey F. Murray, Dallas, Tex., for plaintiff-appellant.

Frank D. McCown, U.S. Atty., Ft. Worth, Tex., Martha Joe Stroud, Asst. U.S. Atty., Dallas, Tex., Scott P. Crampton, Asst. Atty. Gen., Elmer J. Kelsey, Gilbert E. Andrews, Acting Chief, Appellate Sec., James E. Crowe, Jr., Tax Div., U.S. Dept. of Justice, Washington, D.C., for defendant-appellee.

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

Before DYER and CLARK, Circuit Judges, and KRAFT ^*, District Judge.

KRAFT, District Judge:

This appeal presents this question: Did the district court, in its choice of sanctions available under F.R.C.P. 37(b)(2)(A)(B)(C), abuse its discretion by ordering dismissal of taxpayer's refund action and the entry of judgment against the taxpayer on the government's counterclaim? Our affirmative answer obliges us to reverse.

The chronology of the relevant facts is as follows: On February 1, 1973, Thomas C. Thomas (taxpayer) and others were arrested by Dallas, Texas police officers, charged with engaging in an unlawful gambling operation. On the basis of seized records furnished to Internal Revenue Service (I.R.S.), the Commissioner, on February 2, 1973, made a jeopardy assessment of $14,901.98 for taxes and interest against the taxpayer for delinquent wagering excise and occupational taxes for ten monthly periods between November, 1971 and January, 1973. After the I.R.S., by seizure, collected a part of the assessment, the taxpayer filed a timely claim for refund thereof, which was denied.

The taxpayer, on November 5, 1973, filed his action for refund in the district court, claiming, inter alia, that the taxes were illegally or erroneoulsy assessed; that the records seized by the police belonged to others and that the assessment was founded on the erroneous assumption that similar betting transactions had occurred during other periods. The government's answer denied that the assessment was illegal or erroneous and asserted insufficient knowledge to form a belief that the records belonged to others.

The government, on January 31, 1974 filed and served upon the taxpayer twenty-one written interrogatories, which included specific questions about the taxpayer's alleged wagering activities and the sources of all income during the pertinent periods. On June 17, 1974, with taxpayer's consent, the government filed an amended answer as well as a counterclaim for the unpaid portion of the assessment. The taxpayer filed no timely objections or answers to the interrogatories and, on June 19, 1974, the government filed a motion to compel taxpayer to answer. Seven days later the taxpayer filed answers to eleven interrogatories, but declined to answer the other ten on the grounds that (a) his answers 'may tend to incriminate' him and (b) the wagering done by him was 'as a bettor, not as a bookmaker, agent or lay-off man' and that disclosure of the bookmakers with whom he but would probably 'be dangerous and injurious to his health.' The government promptly filed another motion to compel taxpayer to answer the ten unanswered interrogatories. The taxpayer interposed no application for a protective order under F.R.C.P. 26(c) and, on July 9, 1974, the district court, granting the government's motion, ordered the taxpayer to answer the interrogatories within ten days. The taxpayer did not obey the order and the government, on July 25, 1974, moved specifically for dismissal of taxpayer's action and for judgment on its counterclaim under F.R.C.P. 37(b)(2) (C). The government later filed a memorandum in support of its motion to which the taxpayer responded with his opposing memorandum. On November 12, 1974, the district court, holding that the taxpayer must make a choice between his silence and his lawsuit, entered an order dismissing taxpayer's action with prejudice and entering judgment for the government on its counterclaim.

Taxpayer's first contention that the district court should have held an evidentiary hearing and/or heard oral argument on the motion is without merit. All the essential facts were of record. Opportunity to file supporting and opposing memoranda was afforded and exercised.

The portion of F.R.C.P. 37(b)(2), operative here, provides: 'If a party . . . fails to obey an order to provide . . . discovery, . . . the court . . . may make such orders in regard to the failure as are just, and among others the following:

'(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence;

(C) An order . . . staying further proceedings until the order is obeyed, or dismissing the action . . . or rendering a judgment by default against the disobedient party;'

In Urban v. United States (5 Cir. 1971) 445 F.2d 641 we held that assessments of wagering excise and occupational taxes were not unconstitutional on self-incrimination grounds, and we proceed, therefore, to consider whether the order of the district court, adopting one of the sanctions appearing in the rule, was, in the circumstances also just.

Dismissal of the disobedient party's action with prejudice is a sanction of last resort, applicable only in extreme circumstances: Bon Air Hotel, Inc. v....