U.S. v. Sumitomo Marine & Fire Ins. Co., Ltd.
| Decision Date | 16 April 1980 |
| Docket Number | 78-1824 and 78-2388,Nos. 76-2258,77-1902,77-1903,s. 76-2258 |
| Citation | 617 F.2d 1365 |
| Parties | In the Matter of The Complaint of the UNITED STATES of America, as owner of the United States Naval Ship PVT. JOSEPH F. MERRELL, for exoneration from or limitation of liability, Plaintiff-Appellant, v. SUMITOMO MARINE & FIRE INSURANCE COMPANY, LTD., etc. et al., Defendants- Appellees. In the Matter of The Complaint of the UNITED STATES of America, as owner of the United States Naval Ship PVT. JOSEPH F. MERRELL, for exoneration from or limitation of liability, UNITED STATES of America, Plaintiff-Appellant, v. UNITED STATES NAVAL SHIP PVT. JOSEPH F. MERRELL and The Vessel "Pearl Venture", Defendants-Appellees. UNITED STATES of America, Counter/Claimant-Appellant, v. The M/V PEARL VENTURE, her engines, tackle, etc., in rem and Pearl Carriers, Inc., Defendants/Counterclaim Appellees. SUMITOMO MARINE & FIRE INSURANCE CO., LTD., a Corp. et al., Plaintiffs- Appellees, v. PEARL CARRIERS, INC. et al., Defendants-Appellants. and The Vessel Pearl Venture, Defendant. UNITED STATES of America, Plaintiff-Appellant, v. SUMITOMO MARINE & FIRE INSURANCE COMPANY, Claimant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Robert S. Greenspan, U. S. Dept. of Justice, Washington, D. C., Charles W. Cappel, (argued), Los Angeles, Cal., Robert E. Kopp, Los Angeles, Cal., on brief for plaintiff-appellant.
Charles W. Cappel, Los Angeles, Cal., Robert S. Greenspan, Washington, D. C., (argued), Dan Brennan, Anita E. Rudd, Los Angeles, Cal., on brief for defendants-appellees.
Appeal from the United States District Court for the Central District of California.
Before WALLACE and KENNEDY, Circuit Judges, and CRAIG, * District Judge.
The government appeals from the district court's orders imposing sanctions against the government, and personally against the government's attorney, for failure to obey discovery orders. Because we find that the sanctions were within the discretion of the district court, see Fed.R.Civ.P. 37(b), we affirm.
This litigation arose from a December 29, 1973 collision at sea involving the USNS PVT. JOSEPH F. MERRELL, a government vessel, and the M/V PEARL VENTURE, owned by Pearl Carriers, Inc. (Pearl). In July 1974, the government sued Pearl for $1.7 million in damages for the loss of its ship, damage to cargo, salvage, towing, and repair costs, and the expenses incurred in cleaning up the oil spill that resulted from the collision. Pearl counterclaimed for approximately $800,000 in damages. The various insurers of cargo carried aboard the M/V PEARL VENTURE (cargo interests) also filed claims against the government.
Informal discovery began in December 1974. The district court scheduled a pre-trial conference for May 19, 1975. On May 1, counsel for the cargo interests served the government with interrogatories. The government responded on May 14 by seeking postponement of the pre-trial conference to allow more time for discovery. In an accompanying affidavit, government counsel declared that although the documentation needed to establish the government's damages was "for the most part" assembled, his office had not yet received it, and that it would probably take several weeks before the government's damages could be "stated with reasonable certainty." The district court granted the continuance, which was unopposed. On July 14, 1975, Pearl initiated its own discovery against the government by filing interrogatories.
On November 11, 1975, after waiting four months to receive answers to its interrogatories, Pearl filed a motion seeking either sanctions or an order compelling answers. The district court heard this motion, together with a similar motion brought by the cargo interests, on December 1, 1975. The court ruled, after recounting the government's six-month series of delays and broken promises in regard to answering the cargo interests' interrogatories, that unless the cargo interests' interrogatories were answered by December 12, 1975, and Pearl's interrogatories by January 30, 1976, the government's complaint would be dismissed.
Despite the district court's warning of a possible dismissal, the government did not file interrogatory answers on January 30, but instead filed a motion seeking an extension to answer until February 9, 1976. Strangely, the government noticed this motion for February 23, which was 14 days after the date to which the government requested the extension. By telephone on February 13, 1976, the government's counsel advised counsel for Pearl that the interrogatory answers would be served prior to the February 23 hearing. Pearl then filed papers indicating that it did not oppose the requested time extension.
The district court did not hear the government's extension motion until March 1, 1976. On that date, just prior to the scheduled hearing, the government's counsel served copies of the required interrogatory answers upon Pearl. Nevertheless, the court went ahead with the hearing. It found that the government's counsel had "demonstrated a callous disregard for the discovery processes and the orders of this Court." As a result, the district court imposed a $500 sanction, payable to Pearl, against the government's counsel personally, stating: "I want to have a clear and emphatic message to you and your office that I'm not going to tolerate any further such conduct by you or by any members of your office in terms of this litigation."
The government thereafter filed a motion to reconsider the imposition of sanctions. At the March 9, 1976 hearing on this motion, the district court stated:
Well, I have made a finding . . . that there was a willful and callous disregard of court orders and discovery procedures on the part of (government counsel), and that it was a continuing course of conduct. The Court had had to hear two separate hearings on this same matter, and it just seemed so flagrant to the Court this is the first time I've ever had to do this with any representative of the Government, and I don't relish it, but it seemed to me to be such a flagrant disregard for orders of the Court and such a flagrant disregard for the rights of opposing counsel and the duties of a court in general, that the imposition of these sanctions was necessary.
The court added that if the government counsel's problem was insufficient staffing, then perhaps the imposition of sanctions would generate some help from the Justice Department. The court denied the motion for reconsideration.
Although the government answered the interrogatories on March 1, 1976, it did not provide the damages evidence which it had promised in its May 14, 1975 affidavit in support of the motion to continue the pre-trial conference. After a status conference held on June 21, 1976, the district court ordered that "(a)ll discovery shall be completed on or before August 10, 1976." This order clearly required the government to produce the requested evidence of its damages. The court also ordered that any party electing to move for an order directing bifurcation of trial of the liability and damages issues "shall file a suitable motion by July 2, 1976 . . . ."
August 10, 1976 came and went, and the government still had not provided evidence of its damages. The district court held another status conference on October 19, 1976. As a result of this hearing the court issued an order which stated, in part:
On or before Thursday, November 25, 1976, counsel for the United States of America shall provide to all other parties herein a complete statement of the damages which it claims in the within action, together with copies of all the documents which support such claimed damages.
Trial of this action shall commence before this Court at 9:30 a.m. on the morning of Tuesday, January 25, 1977.
On November 29, 1976, four days after this deadline expired, the government sent a letter to Pearl setting forth the government's "estimate" of damages. The letter stated:
Insofar as we are able at this time, we are herewith submitting to you our current statement of damages in the above matter. . . . (O)ur current figures are not yet finalized, and still remain subject to revision. As matters presently stand, however, our damages are tentatively stated as follows . . . .
As you will have observed, the precise amount of our claim for the damages which we have sustained by reason of this collision is still subject to revision and refinement, and almost certainly cannot be reflected in a precise final figure for several more months.
The letter set forth approximately $1.7 million in damages, broken down into several categories. Although the government asserts that only a small percentage of the damages claimed in the letter was still subject to revision, it concedes that the damage figures set forth in this letter were subject to either upward or downward revision.
Upon receiving the government's letter, counsel for Pearl immediately notified government counsel that Pearl objected to the government's submission of a mere "estimate." Several days later Pearl's counsel received a carton containing computer printouts which had been referred to in the November 29 letter. These contained a partial listing of values for some of the allegedly damaged cargo as well as a partial listing of some of the government's expenses incurred in the salvage and pollution cleanup operations. The government did not supply underlying documents to support its cargo valuation lists or its salvage and pollution claims.
On December 16, 1976, Pearl filed a motion for sanctions against the government. On December 20, the district court ordered the government to respond to this motion on or before December 28, 1976. The government did not meet this filing deadline.
The court heard the sanction motion on January 10, 1977. This was only two weeks prior to the scheduled commencement of trial. The court found that the government had willfully...
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