Toth v. Trans World Airlines, Inc.
| Decision Date | 08 December 1988 |
| Docket Number | No. 87-2291,87-2291 |
| Citation | 862 F.2d 1381 |
| Parties | Rita A. TOTH, Plaintiff-Appellant, and Sondra J. Thornally, Esq., Claimant-Appellant, v. TRANS WORLD AIRLINES, INC., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Marshall W. Krause, Larkspur, Cal., and Sondra J. Thornally, San Francisco, Cal., for plaintiff-appellant.
Sara A. Simmons, San Francisco, Cal., for defendant-appellee.
Appeal from the United States District Court for the Northern District of California.
Before BROWNING, HUG, and TROTT, Circuit Judges.
Rita A. Toth and her attorney, Sondra J. Thornally, appeal from an order of the U.S. District Court for the Northern District of California, Samuel Conti, District Judge, dismissing their action with prejudice pursuant to Fed.R.Civ.P. 37(b)(2)(C), 41(b), and Local Rules 100-3 and 235-10, and holding appellants jointly liable to pay TWA $15,288.25 in costs and attorney's fees incurred as a result of their disobedience to the District Court's orders, pursuant to Fed.R.Civ.P. 11, 37(b)(2), and Local Rules 100-3 and 235-2. Appellants raise several issues on appeal, only one of which has merit.
This action arose out of injuries appellant Toth allegedly sustained on May 29, 1982, while she was a passenger aboard a TWA airplane. During the flight, a bag apparently fell from an overhead luggage compartment when it was opened by a fellow passenger, and struck Toth while she was sitting in her seat. As the ensuing facts illustrate, however, more than luggage was to come down upon Toth's head.
On June 3, 1982, five days after the luggage incident, Toth resigned her job with the Bank of America. Prior to this resignation, she had not sought medical attention for the injuries allegedly sustained on the flight.
Toth filed suit against TWA and Doe defendants on May 26, 1983, and sought damages for medical expenses and wage loss. Throughout the entire course of her action, Toth was represented by appellant Thornally. On June 1, 1983, Toth filed another suit, this time against the Bank of America, alleging constructive wrongful discharge and seeking damages for emotional distress and wage loss. She was similarly represented in that suit by Thornally.
In October 1984, appellants served TWA with a set of interrogatories and document production requests. This was the only discovery made on Toth's behalf in either the state or federal courts during the entire history of this case.
Later in October 1984, TWA brought a motion to compel responses to its document production requests, which included Toth's
Bank of America employment records. The motion was granted. Appellants sought, but were denied, relief in the state court of appeal. TWA ultimately was required to renew the motion after appellants refused to produce the documents. The renewal motion was granted.
In November 1985, TWA removed the suit on diversity grounds to the federal district court. Appellants moved to remand. The district court granted the remand, relying specifically on appellants' representations that they needed to conduct additional discovery, including depositions of the TWA flight crew, in order to determine whether nondiverse parties existed. No such discovery of any type was ever undertaken.
In October 1986, after the state court had struck the Doe defendants from the complaint, TWA again removed the action to the district court. Interrogatories were served upon appellants.
In late December 1986, after three extensions of time, TWA received incomplete responses to its interrogatories. TWA requested supplementation, but appellants refused to respond to the requests. The partial responses revealed that Toth was still claiming continuing, significant damages from the incident aboard the TWA flight. She alleged substantial wage loss, severe restrictions on physical activities, and dramatic emotional and psychological injuries.
Given the severity of the claimed ongoing damages, together with the inadequate responses and appellants' refusal to supplement them, TWA filed a motion to compel answers to interrogatories and for sanctions. Appellants filed no opposition and did not appear at the hearing on the motion. On February 23, 1987, the federal magistrate entered the following order: (1) interrogatories had to be fully answered by March 2, 1987; (2) all objections and claims of privilege be stricken from the initial responses; (3) appellants were precluded from raising any objections and claims of privilege in supplemental responses; and (4) imposed sanctions against appellants jointly for fees and costs incurred by TWA in bringing the motion.
The federal magistrate also ordered the Bank of America to comply with TWA's subpoena for the transcript of Toth's deposition and answers to interrogatories arising from her wrongful discharge lawsuit against the bank. Prior to that order, appellants had threatened to sue the bank if it complied with TWA's subpoena. Despite the informal objections and threats, appellants had filed no opposition to the bank's motion for a compliance order.
TWA moved for additional discovery as to Toth's medical problems and wage loss. When appellants sought to block all discovery until after arbitration, TWA requested the district court issue a discovery plan. Appellants filed no opposition to TWA's proposed plan. Subsequently, a discovery plan was approved by the court and it was ordered that all of TWA's outstanding discovery go forward, including a physical and mental examination of Toth.
By March 4, 1987, appellants had not fully complied with the magistrate's discovery orders. Furthermore, appellants advised TWA that Toth would not be produced for a court-ordered deposition nor would any of the other discovery orders be complied with until after March 6, 1987. As a result, TWA filed a motion to dismiss and for sanctions.
One week later, TWA agreed to reschedule some of its discovery. Five weeks later, by the date of the hearing on the motion to dismiss held on April 10, 1987, appellants had yet to comply with the magistrate's discovery orders. Although appellants had not filed any opposition to the motion for dismissal and sanctions, Judge Conti heard their explanations and granted appellants two additional weeks to comply with the outstanding orders. Accordingly, Judge Conti was obliged to vacate both the arbitration and trial dates.
As of the April 24, 1987 hearing on TWA's motion to dismiss, appellants still had not filed any opposition. Nevertheless By the time of the third hearing held on May 1, 1987, appellants still had not fully complied with the district court's orders. This time, however, despite appellants' further explanations, Judge Conti dismissed the case and imposed sanctions jointly against Thornally and Toth.
Judge Conti again listened to appellants' explanations and granted them a second extension of time within which to comply with the outstanding orders.
Appellants allege that the district court erred in basing the dismissal and imposition of monetary sanctions on Local Rule violations and Fed.R.Civ.P. 11, 37, and 41(b). Because we find that the basis for the sanctions was appropriate pursuant to Fed.R.Civ.P. 37, we need not address the other alleged violations.
The district court's dismissal of a case with prejudice is reviewed for abuse of discretion. Malone v. United States Postal Service, 833 F.2d 128, 130 (9th Cir.1987). "[W]e will overturn a dismissal sanction only if we have a definite and firm conviction that it was clearly outside the acceptable range of sanctions." Id. The issue is "not whether this court would have, as an original matter, imposed the sanctions chosen by the trial court, but whether the trial court exceeded the limits of its discretion." Halaco Engineering Co. v. Costle, 843 F.2d 376, 379 (9th Cir.1988). A determination that court orders were disobeyed is entitled to considerable weight since a district judge is best equipped to assess the circumstances of the noncompliance. Id.
Five factors must be considered before imposing the sanction of dismissal: 1 "(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions." Thompson v. Housing Authority of City of Los Angeles, 782 F.2d 829, 831 (9th Cir.), cert. denied, 479 U.S. 829, 107 S.Ct. 112, 93 L.Ed.2d 60 (1986). When the district court does not explicitly consider the five factors, as was the case here, we must review the record independently to determine whether the dismissal was an abuse of discretion. Malone, 833 F.2d at 130.
Dismissal of this action was based on appellants' continued refusal to respond to requests to produce; they continued to refuse even after the court had ordered their responses. The record contains substantial evidence of long and unjustified delays in responding to discovery requests and noncompliance with judicial orders. We find this evidence relevant to the considerations of expeditious resolution of litigation, docket management, and prejudice, and support the district court's order. The district court considered, and indeed instigated, less drastic sanctions, but to no avail. While the public policy favoring disposition on the merits weighs against dismissal, it is not enough to preclude a dismissal order when the other four factors weigh as heavily in favor of dismissal as they do in this case. See Malone, 833 F.2d at 133 n. 2.
Appellants contend that the district court's award of costs and attorney's fees in the amount of...
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