Petition — Strain v. Turner

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In the \} MAR 17 1979

Sunreme Court of the fd © ay aK, N. CLERK |

OCTOBER TERM, 1978

vo. 78-1447

ROD NE J. STRAIN, ET AL.,

Petitioners

versus

KENNETH TURNER, ET AL.,

Respondents

PETITION FOR WRIT OF CERTIORARI TO

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

BERNARD S. SMITH

Post Office Box 1474 *

Covington, Louisiana 70433

Phone (504) 892-9144

Attorney for Petitioners

Charles J. Strain, Jr.

Leonard Strain

Rodney Strain

Carl Martin

Dennis Morris

eee

A B Letter Service, Inc., 327 Chertres St., New Orleans, La. (504) 581-5555

.... .

Constitutional Amendment and Code of

Civil Procedure Rule Involved.............

, IIA

Reasons for Grant ing Wriũtt e...

— VW A 0 Oe ae a ee

, ̃ U ̃ͤ ˙³UA—A ˙

Appendix A: Opinion of Court of Appeals

on Petition for Rehea ring

Appendix B: Opinion of Court of Appeals

on Petition for Rehea ring.

Appendix C: Minute Entry of District

TABLE OF CITATIONS

CASES:

Affanato v. Merrill Bros., 547 F. 2d 138

e rere

Alexander v. Brown, 26 U.S. (1 Pet.) 683,

see

Anderson v. Air West, Inc., 542 F.2d 522

, Wet wis'e's anv. N

David v. Hooker, 560 F. 2d, 412, 420

/ •Aĩm—e—mü »’ ͥwꝛ ̃ •ànʃ0ü

Diaz v. Suthern Drilling Corporation,

427 F.2d 1118 (5th Cir. 1970) cert. denied

— ĩ . ͤ]—

Dorsey v. Academy Moving & Storage, Inc.,

423 F. 2d 858 (Sth Cir. 197o))))))) ee

Finley v. Parvin/Dohrman Co., Inc.,

520 F. 2d 386 (2nd Cir. 1975ꝰ))J)))) .

First National Bank of Arizona v. Cities

Service Co., 391 U.S. 253, 291-92 at fn. 20,

88 S.Ct. 1575, 1594, 20 L.Ed. 2d 569 (1968),

rehearing denied 393 U.S. 901 (1969).........

PAGE

— — —

iii

TABLE OF CITATIONS (Continued)

Flaks v. Koegel,504 F.2d 702 (2nd Cir. 1974)

Fox v. Studebaker-Worthington, inc., 516 F.2d

989 (8th Cir. 1975) In Re: Professional

Hockey Antitrust Litigation, 63 F.R.D. 641

rev'd (531 F. 2d 1188, (3 Cir. 1976)..........

Linnear v. White, 422 F. 2d 864 (7th Cir.

ee Se rage ps Np Roe ee

Meurer-Neurer, Inc. v. United Packinghouse

Workers of America, 26 FRD 139, 140

SS RR ar a ene

National Hockey League v. Metropolitan

Hockey Club, Inc., 96 S. Ct. 2778 (1976)

Robison v. Trans-America Insurance Co.,

368 F. 2d 37 (10th Cir. 1966)...............

Societe Internationale Pour Participations

Industrielles et Commerciales v. Rogers,

357 U.S. 197, 78 S.C. 1087, 2 L.Ed. 2d

„„ be nee

Thomas v. L. S., 531 F. 2nd 748

— 6-:xL.,! sas

U. S. v. Leggett & Platt, Inc., 542 F. 2d 655

— A3. e cs casavedaas

PAGE

9-10

8, 20

TABLE OF CITATIONS (Continues)

Von Der Heydt v. Rogers, 102 U.S. App.

D.C. 114, 251 F. 2d 17 (1958 )))

Wilson v. Volkswagen of America, Inc.

561 F. 2d 494 (4th Cir. 1977)...........

CONSTITUTIONAL AMENDMENTS:

14th Amendment of the United States

ER ining me Eye

TEXT BOOKS:

8 Wright & Miller, Fed. Practice

8 Procedure, § 2284, 5 2289.

STATUTES:

28 U.S.C. 1254 (1)... 9s9»s»s»s29t

28 U.S.C. 1331, 1332, 133ù́

MISCELLANEOUS:

Federal Rules of Civil Procedure

....

Rule 37 (b) (2) (eᷣꝶuUnʒ . ee encs

PAGE

8,9,10,12

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

NO.

In Re: Liquid Carbonic Truck Drivers Chemical

®otsoning Litigation M. D. L. No. 252

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

To the Honorable, the Chief Justice and Associates Justices

of the Supreme Court of the United States:

Charles J. Strain, Jr., Leonard Strain, Rodney Strain, Carl

Martin, and Dennis Morris, the petitioners herein, pray that a

writ of certiorari issue to review the judgment of the United

States Court of Appeals for the Fifth Circuit entered in the

above-entitled case on September 22, 1978 and to the judg-

ment danying rehearing entered on December 18, 1978.

OPINIONS BELOW

The opinion of the Fifth Circuit on petitioners request for

rehearing is unreported and is printed as Appendix A hereto,

infra, page A-1 . The judgment of the Fifth Circuit on

petitioners appeal is unreported and printed in Appendix B

hereto, infra, page A-5 . The Journal Entry of judgment

of the United States District Court for the District of Louisi-

ana is printed in Appendix C hereto, page A- 16.

JURISDICTION

The judgment of the Fifth Circuit (Appendix B, infra,

page A- 5 ) was entered on September 22, 1978. A timely

petition for rehearing was denied on December 18, 1978

(Appendix A, infra, page A-3 ). The jurisdiction of the

Supreme Court is invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

_ (1) This case squarely presents the question whether the

entirety of a complex multi-district litigation plaintiffs’ case

can be dismissed for filing one day late answers to interro-

gatories propounded by one of many defendants without an

evidenciary hearing to determine whether plaintiffs’ failure

materially affected the substantial rights of all the adverse

parties and was “prejudicial” to the prosecution of said

parties’ case.

(2) This case squarely presents the question whether the

entirety of a complex multi-district litigation plaintiffs’ case

can be dismissed as to all adverse parties for the general

misbehavior of plaintiffs’ attorney, or in the alternative,

even plaintiffs themselves (which is now and has always been

denied) on an ex parte motion of defendants.

(3) This case squarely presents the question of whether

plaintiffs’ constitutional rights of due process have been

abrogated by abuse of discretion by the trial court in dis-

missing plaintiffs’ case.

CONSTITUTIONAL AMENDMENT AND CODE OF

CIVIL PROCEDURE RULE INVOLVED

This matter concerns the first section of the 14th Amend-

ment of the United States Constitution and Federal Rule of

Civil Procedure Rule 37(d) and 37 (b) (2) (c) which pro-

vides respectively as follows:

1. All persons born or naturalized in the United States,

| and subject to the jurisdiction thereof, are citizens

of the United States and of the State wherein they

reside. No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens of

the United States; nor shall any State deprive any

person of life, liberty, or property without due pro-

cess of law; nor deny to any person within its juris-

diction of the equal protection of the law.

2. Rule 37(d) provides in part:

“(d) Failure of a Party to Attend at Own Deposi-

tion or Serve Answers to Interrogatories or

Respond to Request for Inspection.

If a party or an officer, director, or managing

agent of a party of a person designated under

Rule 30(b) (6) or 31(a) to testify on behalf of

a party fails (1) to appear before the officer

who is to take his deposition, after being serv-

ed with a proper notice, or (2) to serve answers

or objections to interrogatories submitted

under Rule 33, after proper service of the in-

terrogatories, or (3) to serve a written response

to a request for inspection submitted under

Rule 34, after proper service of the request, the

court in which the action is pending on motion

may make such orders in regard to the failure

as are just, and among others it may take an

action authorized under paragraphs (A), (B),

and (C) of subdivision (b)(2) of this rule.

3. Rule 37 (b) (2) (C) provides in part:

“(b) Failure to Comply with Order.

(2) Sanctions by Court in Which Action is

Pending. If a party or an officer, direc-

tor, or managing agent of a party or a per-

son designated under Rule 30(b) (6) or

Zita) to testify on behalf of a party fails

to obey an order to provide cr permit dis-

covery, including an order made under

subdivision (a) of this rule or Rule 35, the

court in which the action is pending may

make such orders in regard to the failure

as are just, and among others the follow-

ing:

parts thereof, or staying further pro-

ceedings under the order is obeyed,

or dismissing the action or proceed-

or any part thereof, or rendering a

judgment by default against the dis-

obedient party?

STATEMENT OF THE CASE

This is a case arising under 28 U.S.C. 1331, 1332, and

1337. Appellants herein were truck drivers employed by

Liquid Carbonic Corporation and claim, and if given the

chance will prove, they suffered chemical poisoning which

resulted in their complete disablement. Appellants filed a

civil suit in the United States District Court against various

companies and the so-called executive officers of the em-

ployer corporation, against their medical insurer Aetna Casu-

alty and Surety Company, and for Workmen’s Compensation

in the state court. It was clear in limine they were injured

either on the job or off the job with the Workmen’s Compen-

sation insurer liable in the first instance and their medical

insurer in the latter for the many many thousands of dol-

lars of medical expenses. Appellants were represented by

attorney Louis Koerner who in the state court failed to

prove by a preponderance of the evidence their injuries were

incurred in the course and scope of their employment. At-

torney Koerner did not perfect an appeal of that decision.

Accordingly, appellants should have been able to prevail for

their gargantuan medical expenses from their medical in-

surer; however, their suit for such expenses was consolidated

with appellants suits against the various companies and ex-

ecutive officers as noted before. The costs expended by ap-

pellants is estimated at between Thirty-Five Thousand

($35,000.00) and Forty Thousand ($40,000.00) Dollars.

On or about May, 1977, appellants Rodney and Charles

Strain had gone to attorney Koerner’s office and were told

he, Koerner, was broke“ and couldn't fight anymore“.

Koerner then lead the pair into his law partner’s office who

then berated and scolded appellant Charles Strain with res-

pect to a case totally uninvolved to that had and then told

him they couldn't win“ the case herein despite repeated

prior assurances there was no way to loose their medical

expenses. The pair requested Koerner retain added counsel

to assist on the case and to share in the over-all financial bur-

den but Koerner refused. After informing the other appell-

ants herein of Koerner’s actions and representation and fear-

ing less than zealous prosecution of their case, appellants at-

tempted to retain other counsel but Koerner motioned ap-

pellants into court on May 25, 1977, approximately two

weeks prior to the scheduled pre-trial conference. The court

at that hearing would not allow appellants to change at-

tornies after eliciting from the new attorney after question-

ing in the case that he probably could not adequately pre-

pare for the pre-trial set within two weeks. Appellants were

then placed unwillingly back into Koerner’s hands who did

not call appellants until approximately July 2 or 3, 1977,

with respect to answering various interrogatories although

there had been an outstanding court order of June 15, 1977,

requiring answering of interrogatories. Appellants immedi-

ately went to Koerner’s office and answered all questions

presented to the best of their ability. On July 5, 1977,

Koerner filed the answers to interrogatories of appellants

and the other non-dismissed plaintiffs on July 5, 1977. Ap-

pellants will show, if ever given an evidentiary hearing, that

it was them who personally answered the interrogatories

while the answers with respect to the non-dismissed plain-

tiffs were answered by Koerner personally without their

knowledge or assistance.

For the two weeks preceding the trial from 8:00 A.M. to

approximately 9:00 P.M. each day, appellants and their

wives went to Koerner’s office at his behest and helped him

organize papers, xerox documents, and do any other job to

assist him. Koerner later told appellants they need come to a

hearing on August 17, 1977, although the reason for said

hearing was not explained. Appellants later discovered at the

hearing of August 10, 1977, the district court judge had

ordered Koerner to file the answers to various interroga-

tories by 5:00 P.M. on August 15, 1977, although attorney

Koerner informed the court five days was inadequate. (Trans-

cript, August 10, 1977, pg. 52) Koerner was further ordered

to deliver the pre-trial order by 5:00 P.M. August 15, 1977,

which order consisted of seventy-eight (78) pages in length.

Attorney Koerner filed the third set of interrogatories with

regard to a case involving fifty (50) volumes with three sup-

plements and thousands of pages of discovery transcripts ac-

cumulated over a three (3) year period on August 16 or 17.

Appellees Ex- parte Motion to Dismiss’’ was filed on and

ed on August 17, 1977. At the hearing of August 17,

1977, attorney Koerner admitted: Its [sic] my fault. Don't

impute it [the problems associated with answering the inter-

rogatories] to them. Sanction me”. (Transcript, August 17,

1977, pg. 37) Koerner then stated five of the nine“ were

not fully cooperative with him and stated it was the five

people who bolted“, i.e. the appellants herein who tried to

salvage their case by obtaining other counsel.

Koerner filed a motion for re-instatement and a hearing

was set on August 24, 1977, which resulted in a denial of

the motion. All the remaining plaintiffs subsequently com-

promised their claims.

REASONS FOR GRANTING WRIT

The District Court in its reasons for Judgment stated ap-

pellant's case was dismissed for failure to comply with [his]

order of August 10, 1977, that full and good faith answers

to interrogatories be filed by 5:00 P.M. on August 15, 1977.“

The Court then stated that because of the past history of

disobedience and lack of cooperation by the appellants

and by Mr. Koerner himself dismissal was appropriate.

The Court then went on to list multiple alleged acts the

Court considered in ordering the dismissal. There is no

evidence to document any disobedience, willful or other-

wise, or bad faith in appellants themselves and it is clear

the District Court was annoyed and angered by the attorney

Koerner. In Societe International v. Rogers, 357 U.S. 197,

78 S.C. 1087, 2 L. Ed. 2d 1255, (1958) the S.C. in explain-

ing Rule 37, stated that said rule

“should not be constructed to authorize dis-

misal of [a] complaint because of petitioner's

noncompliance with a pre-trial [discovery] order

when it has been established that failure to comply

has been due to inability, and not to willfulness,

bad faith, or any fyilt of petitioner.”

Further, as made clear in Wilson v. Volkswagen of Ameri-

ca, Inc., 561 F. 2d 494 (4th Cir. 1977) the trial court’s

“range of discretion is more narrow in entering

a default Judgment than when the Court is impos-

ing other less severe sanctions cause, though ‘a

rational method of enforcement of the discovery

rules,’ represents in effect ‘an infringement upon a

party’s right to trial by jury under the seventh

amendment’ and runs counter to ‘sound public

policy of deciding cases on their merits,’ and

against depriving a party of his ‘fair day in Court'.“

A leading text has stated the exercise of the power should

be confined to the flagrant case in which it is demonstrat-

ed that the failure to produce ‘‘materially affect(s) the sub-

stantial rights of the adverse party’’ and is prejudicial to

the prosecution of the case.” (our emphasis). 8 Wright &

Miller, Fed. Practice & Procedure, § 2284, pp. 776-772. The

issue of materiality is always open to appeal. 8 Wright &

Miller, Fed. Practice & Procedure, § 2289, p. 791. In said

text, it is further stated: If sanctions are imposed under

Rule 37(b), however, on appeal from the order imposing

sanctions, the appellate court will consider the propriety of

the prior order for discovery.’’ See also Wilson v. Volks-

wagen of America, Inc., supra. In Dorsey v. Academy Mov-

ing & Storage, Inc., 423 F.2d 858 (Sth Cir. 1970), 860-1,

the Fifth Circuit stated:

“The rule is designed to empower the Court to

compel production of evidence by the imposition

of reasonable sanctions. The Court, however,

should not go beyond the necessities of the situ-

ation to foreclose the merits of controversies as

punishment of general misbehavior.“ (our em-

phasis)

Further, in Robison v. Transamerica Insurance Co., 368 F.

2d 37, (10th Cir. 1966), p. 39, the Court stated: * * The

office of 37(d) is to secure compliance with the discovery

rules, not to punish erring parties.” See also Linnear v.

White, 422 F. 2d 864, (7th Cir. 1970). In Diaz v. So. Drilling

Corp., 427 F.2d 1118 (5th Cir. 1970), this Court again stated

the normal rule is that the proper sanction ‘‘must be no more

severe * * than is necessa to prevent injustice to the mov-

ant.“ In Flaks v. Koegel, 504 F.2d 702 (2nd Cir. 1974), the

Second Circuit held the trial court abused its discretion in

striking defendant's answers and directing entry of a default

judgment because of defendant’s failure to respond to in-

terrogatories and to appear for deposition for failure of the

lower court to conduct an evidentiary hearing in order to

determine defendant’s willfulness.

Lastly, in National Hockey League v. Metropolitan Hockey

Club, 427 U.S. 639, 49 L.Ed. 2d 747, 96 S. Ct. 2778 (1976),

the S.C. made it clear the District Court was required to con-

sider the full record in determining the appropriateness of its

decision, and the record must support that finding. In deter-

mining whether to mpose such a sanction of dismissal, the

needs of the discovery party must be evaluated as well as the

nature of the non-compliance, and the Trial Court must

consider how the absence of such evidence [not produced]

would impair [the other party’s] ability to establish their

case, and whether the non-complying party’s ‘‘conduct [in

not producing documents] would deprive [the other party]

of a fair trial.“ See also, Fox uv. Studebaker-Worthington,

Inc., 516 F.2d 989 (8th Cir. 1975); Wilson v. Volkswagen

of America, Inc., supra. In Von Der Heydt v. Rogers, 102

U.S. App. D.C. 114, 251 F.2d 17 (1958), the Court said that

the District Court had taken extensive evidence on the

“materiality of the records sought, the possession and con-

trol of these records by appellant * * * [but] made no find-

ings other than its order of dismissal which it characterized

as containing findings.” The Court of Appeal reversed,

saying:

* *The burden of showing materiality of the

information and ability to produce it rests on the

one seeking discovery. At a point the burden of

going forward with the evidence may shift to the

party asserted to be in possession or control. Ab-

sent specific findings to be reviewed in the light of

the evidence, we cannot make an adequate assess-

ment of this issue.* * *’’

In Re: Professional Hockey Antitrust Litigation, 63 F.R.D.

641 , rev’d (E.D. Pa. 1974) 531 F.2d 1188, (3 Cir. 1976)

rev'd 427 U.S. 639, 96 S. Ct. 2778, 49 L.Ed. 2nd 747

(1976), the procedure to be followed was illustrated by the

Trial Court, in accordance with the following principles in

exercising the power to grant the sanction of a default judg-

ment. The Trial Court found that the interrogatories to

the plaintiff and left unanswered were crucial interroga-

tories which went to the heart of the discovery party’s

defense and were thus clearly material; that the plaintiff

admitted on a number of occasions that he had available

to him the information required for the interrogatories;

that the plaintiff had been given at least five extensions,

some made out of time and granted with warnings of possible

sanctions, for answering the interrogatories, always on repre-

sentation, never honored, that, if granted, answers would be

duly filed; that these delays had forced at least three post-

ponements of a trial date; and that any lesser sanction, such

as denial of right in plaintiff to prove the matters not re-

sponded to by it, was not a reasonable alternative to default

judgment, since the practical effect of denial of right to

prove the material by the plaintiff would be to make impera-

tive judgment in favor of the defendants. The Trial Court

carefully evaluated the needs of the discovering party,“

considered the effect of non-compliance on the ability

[of the defendants] to establish their case and concluded

that no remedy other than default judgment would “pre-

vent prejudice to the movant.” The findings above were

fully detailed in the Trial Court’s order and found to clearly

support the default judgment by reason of [plaintiff's]

‘flagrant bad faith’ and their counsel's ‘callous disregard’ of

their responsibilities.“

This reviewing court is obligated to consider the full

record as well as the reasons assigned by the Trial Court for

its Judgment, and to reverse the Judgment below if after such

review this appellate court ‘has a definite and firm convic-

tion that the court below committed a clear error of Judg-

ment in the conclusion it reached upon a weighing of the

relevant factors. Wilson v. Volkswagen of American, Inc.,

supra; Finley v. Parvin-Dohrmann Co., Inc., 520 F. 2d 386

(2d Cir. 1975); Anderson v. Air West, Inc., 542 F. 2d 522

(9th Cir. 1976); U.S. v. Leggett & Platt, Inc., 542 F. 2d 655

(6th Cir. 1976).

The Trial Court herein dismissed appellants’ case and their

future and deprived them forever of their constitutionally

protected right to trial by jury on the basis of attorney

Koerner filing his third set of answers to defendant’s inter-

rogatories on August 16 or 17“ instead of August 15 at

5:00 P.M.” To be noted is that this case is not one of fail-

ing to answer since attorney Koerner filed amended answers

to the interrogatories in question three times. Further, there

was no determination whether the last set would have been

sufficient in the eyes of Judge Sears. On August 31, 1977,

at p. 52, the Trial Court’s only objection was that the three

sets of interrogatories had not conformed to ‘‘the prefer-

ence of Magistrate Hughes. There is nothing in the record

to indicate Magistrate Hughes had, prior to Koerner’s filing

the interrogatories, required this. At the hearing, Koerner

agreed to consolidate the answers if so required. There was

no hearing to determine the materiality of the interroga-

tories or any prejudice to defendant's of either the allegedly

incomplete answers or of the one day late filing of same.

Again, the only objection voiced at the August 31, 1977,

hearing was Magistrate Hughes’s preference. There was no

finding in the Trial Court’s reasons of materiality or pre-

judice. There was no hearing on willfulness or bad faith in

filing the answers one day late, and at the August 31, 1977,

hearing, the Trial Court did not wish testimony of appellants

as to their good faith. Further, how could it be said that

several hundreds of pages of answers to interrogatories re-

flected anything but good faith. There was no hearing or

reasons assessing alternative sanctions as mandated by law

such as contempt of Koerner or not allowing evidence on

any interrogatories in which the one day delay could have

been found to have been prejudicial. There was no con-

sideration that appellants had tried to relieve their attor-

ney for fear of his being tardy in his duties but was told by

the Trial Court in the May 25, 1977 hearing he was reluctant

to release Koerner for fear that counsel will not be prepared

to proceed with the motions for summary judgment and

with the trial on August 29.“ Further, at p. 25 of the trans-

cript of said hearing, Judge Sears told Koerner ‘‘he was still

the attorney of record and [he] must continue to represent

and [prepare] for the case.’’ Therefore, the Trial Court in

the face of what it now considers numerous indiscretions by

attorney Koerner had appellants retain their relationship with

him and then dismiss their case for the same tardiness which

he was cognizant on the May 25 hearing. There was no evi-

dence of bad faith or otherwise by appellants personally;

appellants have numerous phone lists to show the number

of times koerner was called without response. Further,

the Trial Court at the hearing of August 31, 1977, heard

attorney Edward Rice state his fears of appellants, but then

would not have Mr. Rice be sworn or allow appellants to

testify. Appellants contend it is pure fabrication of any

threats from them, and the only occasion of anger was in

Koerner’s office in the day mentioned heretofore. As to

whether appellants are angry, they ask the Court to put

themselves into their shoes.

Further, for what reasons did the Trial Court dismiss ap-

pellants and not the other four plaintiffs? It is patently un-

fair since in truth and in fact they were the only ones who

answered their interrogatories. Again, on information, plain-

tiffs Roger Moran and Marvin Brown, still in the lawsuit,

never answered their interrogatories but attorney Koerner

answered same for them.

Appellants further contend items listed by the Trial Court

for its annoyance such as Koerner fighting on an equity argu-

ment retention of United States Steel, Koerner’s failure to

add U.S. Steel and Transition before the multidistrict transfer

and Koerner’s filing a third amended complaint without leave

of Court could hardly lead to a conclusion that in a complex

multilitigation case such as this one attorney Koerner or ap-

pellants were in bad faith or that the resultant one day delay

in filing the interrogatories was in bad faith. Further, on pg.

22 of the August 31, 1977 hearing the Trial Court said Koer-

ner was not in bad faith although in its reasons for Judgment

points to Koerner’s legal actions as pointing to appellants bad

faith. It does not follow! At pg. 21, attorney Rice admits

there had not been ‘‘any admission or discussion of good or

bad faith.“

If an evidentiary hearing had been taken, it is believed at-

torney Koerner would have referred, based on his motion for

reconsideration of motions to intervene or participate as

amicus curiae to his Motion and Order to Withdraw Motion

to File Third Amended Complaint as Improvidently Filed“

signed on January 25, 1977 by Judge Sear and filed January

26, 1977. Ground one states:

“By motion and proposed order, plaintiffs en-

deavored to have the Third Amended Complaints

filed ex parte, however, by order of this Honor-

able Court, the matter was referred to Magistrate

Kenneth Hughes, and was granted by Magistrate

Hughes without opposition from defendants in this

matter.“

Accordingly, despite the requirement of considering the

entire record, no mention is made of Magistrate Hughes’

order allowing the amended complaint. Attorney Koerner

suggests the text of the district court’s Minute Entry of

August 22, filed August 24, 1977, [Original Record, Volume

27, pp. 1903-1910] would indicate that there had been no

action by a Court official authorizing the filing of the Amen-

ded Complaint when such implication is contrary to the

facts contained in the record.

Also, the Trial Court lists as bad faith attorney Koerner’s

obtaining ‘‘an informal extension from Process Engineering’s

attorney until July 5th” to file the interrogatories. Why, if

defendant Process Engineering did not complain, would the

Court become so annoyed? Obviously, there was no pre-

judice to defendant Process Engineering since they consented

to the delay. At pg. 4 of its reasons, the Trial Court states:

“it was determined that Koerner would submit new answers“

to correct alleged deficiencies. Again, does such show bad

faith? Is it unusual for defendants to use every weapon in

their arsenal to defeat plaintiff's claims and object to suffici-

ency. Certainly not!

Again, it is believed attorney Koerner would have cited

the case of First National Bank of Arizona v. Cities Service

Co., 391 U.S. 253, 291-92 at fn. 20, 88 S. Ct. 1575, 1594,

20 L. Ed. 2d 569 (1968), rehearing denied 393 U.S. 901

(1969), wherein a six year lapse occurred between filing of

the complaint and completion of examination of petitioner

and wherein both parties had entered into numerous stipu-

lations postponing taking of depositions for months at a

time. This Honorable Court stated: ‘Petitioner argues he

cannot be penalized for not working full time at supplying

the defendants with deposition testimony. This is certainly

correct. However, petitioner cannot, by the same token, at-

tempt to penalize respondent for delays in which he acquiesc-

ed with no hint of objection.”

With respect to the August 2, 1977, hearing on marshall-

ing of exhibits, the Trial Court again does not even mention

or explore the reason for the emergency that called at-

torney Koerner away. Obviously, Koerner’s associate had

considerable trouble with the exhibits and the Trial Court's

despair can be felt, but once again, if after a determination

that Koerner’s absence was unexcused, other sanctions as

contempt would be available. How can the Trial Court per-

sistently point to legal actions of Koerner as indicative of ap-

pellant’s willfulness or bad faith.

Again, if an evidentiary hearing had been taken, it is be-

lieved attorney Koerner would have sought to justify the fact

his exhibits were in disarray by contrasting the shear vol-

ume of 600 plaintiffs’ exhibits with 29 of appellees.

At pg. 5 of the Trial Court’s reasons, the Trial Court notes

it demanded further answering of the interrogatories or dis-

missal despite Magistrate Hughes’ recommendation the case

be continued“.

Again, if an evidentiary hearing had been taken, it is be-

lieved attorney Koerner would have referred to the confer-

ence between the Honorable Judge Morey Sear, Magistrate

Hughes, and the attorneys held on July 20, 1977, at which he

ordered Magistrate Hughes to ‘‘carefully review’’ new answers

to interrogatories. It is believed attorney Koerner would

have. noted no consideration was given to the fact that Magis-

trate Hughes failed to give any specific criticisms to any of

the answers filed until the August 31 hearing. At page 33 of

that hearing, Magistrate Hughes admits that the answers and

supplements basically answered the questions. [Original

Record, lst Sup. Record]. Further, it is believed for the

reasons stated heretofore, Koerner would have noted the

Minute Entry in support of dismissal implied that none of

the appellees found any of the appellants’ answers sufficient

at any time whereas by letter of July 20, 1977, from Mr.

Jerry Saparito, attorney for one of the appellees, to Koerner

states that only certain answers were deemed insufficient im-

plying, therefore, the vast majority to have been sufficient.

On pg. 7 of the Court’s reasons, the Trial Court labels the

tardiness of one day as willful“ again without any hearing

or determination of prejudice or the facts surrounding the de-

lays. This case, again is forty volumes with three supple-

ments spanning thousands of pages and, just to review all

the records is a gargantuan task in itself. Are not delays ex-

pected! It has taken appellants many years to reach the trial

stage- are they for the sake of one day and various petty

annoyances to be forever barred from recovery of the most

debilitating and agonizing disability imagined.

Further, with respect to the one or two day delay in filing

answers to interrogatories cited in the August 22nd Minute

Entry, it is believed attorney Koerner would have referred to

the facts that the District Court was informed at the August

~ 10, 1977 hearing five days was inadequate; that the August

10, 1977, settlement interfered with completing the new

answers; that preparing 78 page pretrial order, also due

August 15th, interfered with completing the new answers.

Further, reference would have been made to Meurer-Neuer,

Inc. v. United Packinghouse Workers of America, 26 FRD

139, 140 (D. Kan. 1960) and David v. Hooker, 560 F. 2d

412, 420 (9th Cir. 1977) for the proposition that preoccupa-

tion with another aspect of the same case is not grounds for

dismissal for failure to answer the moving parties interroga-

tories. As attorney Koerner also notes in his previously

noted motion at the August 17, 1977, hearing, the Honor-

able Judge Morey Sear stated that had appellants filed a

motion for extension of time to answer the interrogatories,

he might have been less severe. However, the Court is refer-

enced to the “Order of Reference to U.S. Magistrate“ on

Motion for sixty day extension, signed by Judge Sear on

January 31, 1977. Koerner would, it is believed, have sug-

gested that the import of the Order is that by the time it

expired, appellants apparently thought they were repre-

sented by new counsel, which resulted in an order by Judge

Sear staying action on all pending motions until counsel was

determined. By the time the issue was resolved, it was al-

ready June and just before the first hearing on discovery, on

June 15th, which was held before Magistrate Hughes.

There had been no, nor can there be, proof of plaintiffs’

lack of cooperation with their attorney. Why should they at

home disabled want to do anything but assist their attorney.

It begs the question to imagine otherwise. In any event, the

Trial Court again without an evidentiary hearing, concludes

appellants have contributed to the failure to answer but not

to the other plaintiffs. Over and over again, the Trial Court

has made statements that are simply unsubstantiated and

without hearing the testimony of appellants themselves. Is

it possible for so huge a punishment to fit the one day delay

without a showing of prejudice and with an admission the

interrogatories were answered but not in an order of ‘‘pre-

ference’ of the Magistrate? Further, appellants were dis-

missed upon an ex parte motion which was not filed nor

served on appellants’ attorney until the day of the August

17, 1977 hearing. Appellants contend granting an ex parte

motion to dismiss without any form of notice, especially

when the mover has never filed a motion to compel, consti-

tutes an abuse of discretion. Alexander v. Brown, 26 U.S.

(1 Pet.) 683, 7 L. Ed. 314 (1828). Local Rule 3.2, which

governs setting motions for hearing, requires ‘‘at least ten

days actual notice.

With respect to Issue No. 3, because the trial court did not

hold an evidenciary hearing to determine materiality and

prejudice; because the trial court violated Local Rule 3.2;

because the trial court dismissed plaintiffs’ svits against all

defendants, although the answers to the discovery, which was

one day late, was only with respect to one defendant; be-

cause the trial court only cited in the record ‘‘the general

behavior of plaintiffs’ attorney; and finally, because other

less harsh sanctions were readily available, such as contempt,

penalties, or dismissal as to the one defendant who suffered

the one day tardiness in receiving answers to their interroga-

tories, appellants firmly believe that they have been denied

their constitutional rights to due process to be afforded the

opportunity for a hearing on the merits of their case. Affa-

nato v. Merrill Bros., 547 F. 2d 138 (Ist Cir. 1977); Thomas

v. United States, 531 F. 2d 746 (5th Cir. 1976); Societe

International Pour Participations Industrielle Et Com-

merciales v. Rogers, supra.

CONCLUSION

For the foregoing reason, this petition for a writ of certio-

rari should be granted.

Respectfully submitted,

BERNARD S. SMITH

p. O. Box 1474

Covington, Louisiana 70433

(504) 892-5144

PROOF OF SERVICE - AFFIDAVIT

I, Bernard S. Smith, attorney of record for Charles J.

Strain, Jr., Leonard Strain, Rodney Strain, Carl Martin and

Dennis Morris, appellants herein, depose and say that on the

day of March, 1979, I served a copy of the motion for

extension of time to file petition for writ of certiorari on ap-

pellees herein by depositing such copies in the United States

Post Office with first class postage prepaid, properly address-

ed to the post office address of Edward J. Rice, counsel of

record of appellees Kenneth Turner, J. C. Heilgiest, J. H.

Trautwein, J. F. Wakolbinger, Sam J. Testa, W. H. Crescenti,

W. C. Witte, W. Goken, John F. Exposito, John Ziebell,

Aland Corp., and Aetna Casualty and Surety Corp., at 4500

One Shell Square, New Orleans, Louisiana, 70139, and Jerry

Suporito, counsel of record of appellees, Process Engineer-

ing, Inc., at P. O. Box C, 1615 Metairie Road, Metairie,

Louisiana 70005.

All parties required to be served have been served. Dated

March „1979.

BERNARD S. SMITH

Attorney for Appellants

Post Office Box 1474

Covington, Louisiana 70433

Tel: (504) 892-9144

SUBSCRIBED AND SWORN TO BEFORE

ME THE UNDERSIGNED NOTARY AT

COVINGTON, LOUISIANA, THIS

DAY OF MARCH, 1979.

NOTARY PUBLIC

A-1

APPENDIX A

OPINION OF COURT OF APPEALS ON PETITION FOR

REHEARING

3 United States Court of Appeals

Fifth Circuit

Office of the Clerk

September 22, 1978

Edward W. Wadsworth Tel 504-589-6514

Clerk 600 Camp Street

New Orleans, La. 70130

MEMORANDUM TO COUNSEL OR PARTIES LISTED

BELOW:

NO. 77-3056 - IN RE: LIQUID CARBONIC TRUCK

DRIVERS CHEMICAL POISONING LITI-

GATION, M. D. L. DOCKET 252: MORAN

v. TURNER

Dear Counsel:

Enclosed is a copy of the Court’s opinion this day rendered

in the above case. A judgment has this day been entered in

accordance therewith pursuant to Rule 36 of the Federal

Rules of Appellate Procedure.

Rules 39, 40 and 41, F.R.A.P., govern costs, petitions for re-

hearing and mandates, respectively. A petition for rehearing

must be filed in the Clerk’s Office within 14 days from this

date. Placing the petition in the mail on the 14th day will

not suffice.

Local Rule 15 provides that A motion for a stay of the is-

suance of a mandate in a direct criminal appeal filed under

F.R.AP. Rule 41 shall not be granted simply upon request.

Unless the petition sets forth good cause for stay or clearly

demonstrates that a substantial question is to be presented

to the Supreme Court, the motion shall be denied and the

mandate thereafter issued forthwith.”

If you are court-appointed counsel, your attention is called

to Local Rule 7 which provides: “Appointed counsel shall,

in the event of affirmance or other decision adverse to the

party represented, promptly advise him in writing of his right

to seek further review by the filing of a petition for writ of

certiorari with the Supreme Court, and shall file such peti-

tion, if requested by such party in writing to do so.“

Very truly yours,

EDWARD W. WADSWORTH,

Clerk

By s/ Doria Call

Deputy Clerk

enc. |

ce: Mr. Bernard S. Smith

Messrs. Edward Rice, Jr.

Lloyd Hayes

Mr. Jerry L. Saporito

A-3

DENIAL OF PETITION FOR REHEARING

United States Court of Appeals

Fifth Circuit

Office of the Clerk

December 18, 1978

Edward W. Wadsworth Tel. 504-589-6514

Clerk 600 Camp Street

New Orleans, La. 70130

TO ALL PARTIES LISTED BELOW:

NO. 77-3056 - IN RE: LIQUID CARBONIC TRUCK

DRIVERS CHEMICAL POISONING

LITIGATION M.D.S. DOCKET & 252

STRAIN, ET, „ ET AL v. TURNER

ET AL.

Dear Counsel:

This is to advise that an order has this day been entered deny-

ing the petition () for rehearing, and no member of the panel

nor Judge in regular active service on the Court having re-

quested that the Court be polled on rehearing en banc (Rule

35, Federal Rules of Appellate Procedure; Local Fifth Cir-

cuit Rule 16) the petition () for rehearing en banc has also

been denied.

See Rule 41, Federal Rules of Appellate Procedure for is-

suance and stay of the mandate.

Very truly yours,

EDWARD W. WADSWORTH,

Clerk

By s/ Sally Hayward

Deputy Clerk

cc: Mr. Bernard S. Smith

Mr. Edward Rice, Jr.

Mr. Jerry L. Saporito .

A-5

APPENDIX B

OPINION OF COURT OF APPEALS ON

PETITION FOR REHEARING

In re LIQUID CARBONIC TRUCK DRIVERS CHEMICAL

POISONING LITIGATION M.D.L. DOCKET NO.

252.

Rodney J. STRAIN et al.,

Plaintiffs-Appellants

Roger Moran et al., Plaintiffs,

Kenneth TURNER et al.,

Defendants-Appellees.

No. 77-3056

Summary Calendar.*

United States Court of Appeals,

Fifth Circuit.

Sept. 22, 1978.

Personal injury suits were dismissed as to certain plain-

tiffs and as against certain defendants by the United States

District Court for the Eastern District of Louisiana at New

Orleans, Morey L. Sear, J., under the rule providing for dis-

*Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casu-

alty Co. of New York et al, 5 Cir. 1970, 431 F.2d 409, Part

A-6

missal of a party’s claims for failure to obey discovery orders

of the court. Such plaintiffs appealed. The Court of Ap-

peals, Coleman, Circuit Judge, held that the District Court

did not abuse its discretion in dismissing in view of a rec-

ord showing that, for a protracted period of time, and even

up until ten days before trial, such plaintiffs refused to re-

spond to discovery orders, seriously prejudicing defendants in

preparation of their case, showing callous disregard of court

orders by such plaintiffs, including failure to transcribe depo-

sitions, failure to submit to court-ordered medical exami-

nations, repeated failure to file timely and complete answers

to interrogatories and failure to file witness lists, and in view

of district court’s excellent position to scrutinize and evalu-

ate attitudes of such plaintiffs toward their attorney and the

court.

Affirmed.

1. Federal Civil Procedure 1278

Court’s power to order dismissal of party’s claims for

failure to obey discovery orders of court should be exercised

only in exceptional circumstances, but limitation on use of

sanction applies to protect those who, through no fault of

their own, are unable to comply with court orders, and does

not protect willful or bad-faith noncompliance with court

orders. Fed. Rules Civ. Proc. rule 37, 28 U.S.C.A.

2. Federal Civil Procedure 1451, 1537, 1663

Federal district court did not abuse discretion in dismiss-

ing case as to certain plaintiffs in view of record showing

A-7

that, for protracted period of time, and even up until ten

days before trial, such plaintiffs refused to respond to dis-

covery orders, seriously prejudicing defendants in prepara-

tion of case, showing callous disregard of court orders by

such plaintiffs, including failure to transcribe depositions,

failure to submit to court-ordered medical examinations, re-

peated failure to file timely and complete answers to inter-

rogatories and failure to file witness lists, and in view of dis-

trict court’s excellent position to scrutinize and evaluate

attitudes of such plaintiffs toward their attorney and the

court. Fed.Rules Civ. Proc. rule 37, 28 U.S.C.A.

Appeal from the United States District Court for the

Eastern District of Louisiana.

Before BROWN, Chief Judge, COLEMAN and VANCE,

Circuit Judges.

COLEMAN, Circuit Judge.

The appellants appeal an order by the district court dis-

missing their cases from a consolidated multi-party tort suit.

They fervently argue that the district judge abused his dis-

cretion in ordering their cases dismissed on the basis of a

single failure of their counsel to file answers to defendants/

appellees’ interrogatories on time. After a review of the

briefs and the record, we find that there was much more

leading to the dismissal than this single episode and that the

district court’s action cannot be characterized as an abuse of

discretion. Therefore, we affirm the order of the lower

court.

To appreciate fully the patience, and fortitude of the dis-

A-8

trict judge in dealing with appellants, a brief review of the

background of the case is necessary. The five appellants were

previously employed as truck drivers for Liquid Carbonic

Corporation. Claiming injuries from chemical poisoning sus-

tained during loading, unloading, and delivery of carbon

monoxide to various chemical companies, the five appellants

and eight other drivers filed two sets of lawsuits late in 1974.

In one set of complaints, appellants sued ten individual of.

ficers and employees of Liquid Carbonic Corporation and

Aetna Casualty and Surety Company (the insurer of Liquid

Carbonic). Additional defendants included corporate owners

of the tractor trailers, the manufacturer of the tractor trailers

(Process Engineering, Inc.), and several chemical companies

where appellants made deliveries. In a second set of com-

plaints, appellants sued Liquid Carbonic and Aetna for alleg-

ed breach of an oral employment contract and for hospital

and medical expenses.

Since several of the complaints were filed in other dis-

tricts, the matters were brought before the multi-district

litigation panel in Washington, D.C., and all were consoli-

dated, at least for pre-trial proceedings, in the Eastern Dis-

trict of Louisiana. Pursuant to the rules and guidelines set

forth in the Manual for Complex Litigation, in December,

1976, the court entered a Practice and Procedure Order giv-

ing schedules and deadlines for handling various phases of

the discovery and pre-trial proceedings.

All plaintiffs settled with the chemical company defen-

dants in the spring and summer of 1977. This left the

thirteen plaintiffs aligned against the Liquid Carbonic inter-

ests and Process Engineering. Thereafter, Liquid Carbonic

and Process Engineering settled with the four plaintiffs not

A-9

represented by Louis Koerner, attorney for the nine remain-

ing plaintiffs, including the five appellants.

On August 17, 1977, after continued and consistent fail-

ure on the part of the five appellants to follow court orders,

the district court dismissed their law suits. The other four

Koerner plaintiffs were not dismissed because the Judge felt

they had at least tried to comply with the court orders and to

cooperate with their attorney. On August 24, 1977, the dis-

trict court denied appellants’ motion for reinstatement. Ap-

pellants filed this appeal pro se in April, 1978, apparently

having fired Koerner and having failed to hire a new attorney.

The dismissal of appellants’ cases was not a sudden occur-

rence, nor was it brought about by one specific act, or more

correctly, failure to act. In truth, the District Judge bent

over backward in dealing with appellants, extending numer-

ous deadlines and giving one reprieve after another.

At a January 12, 1977, conference the Judge ordered that

certain depositions, which had been taken several months be-

fore, be transcribed by January 31, 1977. This was never

done by appellants. In early May both Liquid Carbonic and

Process Engineering filed motions to dismiss because of ap-

pellants’ failure to comply with numerous discovery orders.

These motions were set for hearing on June 15, 1977, before

United States Magistrate Kenneth Hughes. In the meantime

the five appellants attempted to discharge their attorney,

Koerner, and to find new counsel. At a conference with the

Court on this matter, the appellants were told that they

could retain new counsel if they wished, but any counsel

brought into the case would have to be ready for trial as set

on August 29, 1977. After some investigation, it developed

A-10

that appellants could not find an attorney who was either

willing to shoulder the financial burden involved in the case

or prepare the case in time for the trial. At this point appel-

lants seemingly resigned themselves to representation by

Koerner.

On June 15 Magistrate Hughes heard appellees’ motion to

dismiss based on failures of Koerner’s plaintiffs to answer

interrogatories and failure of two of Koerner's plaintiffs to

submit to court-ordered medical examinations. The magis-

trate ordered that these two failures be cured by July 1 or

the cases would be dismissed. On July 1 Koerner arranged

with opposing counsel for an informal extension of the dead-

line to July 5. He did file the answers on July 5; however, he

gave them to the appellees only on July 11. On July 14 the

magistrate submitted a follow-up report to the Judge recom-

mending dismissal of the cases for failure to comply with his

orders on time.

Since the appellees found the answers to the interroga-

tories vague and incomplete, another conference with the

magistrate was held on July 20 to discuss the problem. The

conference was removed to the Judge’s chambers where it

was determined that Koerner would submit new answers for

review by Magistrate Hughes.

On August 3 in accordance with earlier orders, all exhibits

in the case were to be brought to chambers for examination

by opposing counsel. .Counsel for appellees arrived that day

with all exhibits neatly ordered and labeled as had been stipu-

lated. Koerner, however, had left town the day before on an

emergency and had apparently forgotten the marshalling

order. His associate, who knew virtually nothing about the

A-11

case, valiantly attempted to assemble some sort of presen-

tation of Koerner’s exhibits. The results of his labors were

confusing at best and included a large box full of close to a

thousand sheets of miscellaneous unrelated papers marked as

a single exhibit and a set of personal photographs totally

unrelated to the case.

Meanwhile, the magistrate had reviewed Koerner's latest

set of answers and found no substantial improvement over

the original answers”. On August 5 he recommended that

the case be continued, because he believed the defendants

should not be compelled to go to trial on August 29 without

further discovery.

Another hearing before the Court was called on August 10

to consider the July 14 recommendation of the magistrate

that Koerner’s plaintiffs’ cases be dismissed. Again, appel-

lants were given a reprieve and an extension. The Judge

said that Koerner had until 5:00 p.m. on August 15 to sub-

mit satisfactory answers to the interrogatories; if not, the

case would be dismissed.

The pre-trial conference was set for 9:00 a.m. on August

15. Koerner called in after nine o’clock to explain that he

was running late because he was xeroxing the pre-trial order.

When he finally did arrive, no agreement on the pre-trial or-

der could be reached. Therefore, all counsel were instructed

to appear before the Judge on August 17 at 10:00 a.m. with

an agreeable pre-trial order and to be prepared for a dis

cussion of a possible continuance or dismissal of the case.

At 5:15 on August 15 counsel for the defendants tele-

phoned the Judge to let him know that Koerner had not

A-12

supplied revised answers to the interrogatories. Apparently,

the new answers were supplied on August 16th or 17th. This

dilatory inaction was the last straw. At the August 17 hear-

ing Judge Sear ruled that the cases of the five appellants be

dismissed because of their repeated willful disregard of his

orders. With his order the judge included a lengthy and de-

tailed recapitulation of the most obvious instances of miscon-

duct in the case in order to preserve for the record his reasons

for dismissal.

Throughout all these proceedings and hearings Koerner

explained that his difficulties in compliance with the court

orders were caused by the five appellants’ refusal to cooper-

ate with him. Contrary to appellants’ contention that

“[t]here is no evidence to document any disobedience, will-

ful or otherwise, or bad faith in appellants themselves. . .’’

(their emphasis), Koerner told the court that they contribut-

ed to the failure to answer interrogatories by refusing to

speak to him or to answer his telephone calls over a period of

several months while the interrogatories were outstanding.

He indicated that the other four plaintiffs were cooperating

with him. And in spite of all the problems which were ag-

gravated by these five appellants’ recalcitrance, Koerner made

a good faith effort to protect their interests at the dismissal

hearing on August 17.

We find, as other courts have found in similar cases, that

additional evidence of the willfulness of appellants’ disobedi-

ence is “mirrored in the record”. See DiGregorio v. First

Rediscount Corporation, 3 Cir. 1974, 506 F.2d 781, 788;

Diaz v. Southern Drilling Corporation, 5 Cir. 1970, 427 F.

2d 1118, 1126, cert. denied, 400 U.S. 878, 91 S.Ct. 118, 27

L.Ed.2d 115; Affanato v. Merrill Bros., 1 Cir. 1977, 547 F.2d

A-13

138. It is important to note, also, that prior to dismissal

Judge Sear had met appellants on several occasions, and

therefore, was in an excellent position to scrutinize and

evaluate their attitudes toward their attorney and the court.

Appellants were present at many of the hearings and con-

ferences, including the final one where they had an oppor-

tunity to testify on a request for reinstatement of their

cases. Appellants’ actions at all of these meetings could

have provided an additional basis upon which the Judge

could make a finding of willful disobedience.

[1] Rule 37 of the Federal Rules of Civil Procedure

authorizes the court to order dismissal of a party’s claims for

failure to obey discovery orders of the court. It is, however,

the most extreme sanction provided for in the rule, and the

Supreme Court has emphasized the necessity for cautious

use of the rule.

. Rule 37 should not be construed to authorize dis-

missal of [a] complaint because of petitioner’s non-com-

pliance with a pretrial [discovery] order when it has been

established that failure to comply has been due to inabil-

ity, and not to willfulness, bad faith, or any fault of

petitioner.

Societe Internationale Pour Participations Industrielles Et

Commerciales v. Rogers, 357 U.S. 197, 212, 78 S.Ct. 1087,

1096, 2 L.Ed.2d 1255 (1958). This sanction should be

exercised only in exceptional circumstances. Thomas v.

United States, 5 Cir. 1976, 531 F.2d 746, 749.

The limitation on the use of this sanction, applies to pro-

tect those who, through no fault of their own, are unable to

A-14

comply with court orders. Emerick v. Fenick Industries,

Inc., 5 Cir. 1976, 539 F.2d 1379, 1381; see also Thomas v.

United States, supra; Dorsey v. Academy Moving and Stor-

age, 5 Cir. 1970, 423 F.2d 858, 861. It does not protect

willful or bad faith noncompliance with court orders. The

Supreme Court made this perfectly clear in National Hockey

League v. Metropolitan Hockey Club, 427 U.S. 639, 96 S.Ct.

2778, 49 L.Ed.2d 747 (1976), a recent case involving facts

very similar to the case at bar in which the Court reversed

the Third Circuit ruling that the district court abused its dis-

cretion in dismissing an antitrust action because of repeated

failure to timely answer written interrogatories. The Court

quoted the district court’s summary of the factual history of

the discovery proceedings:

After seventeen months where crucial interrogatories

remained substantially unanswered despite numerous ex-

tensions granted at the eleventh hour and, in many in-

stances, beyond the eleventh hour, and notwithstanding

several admonitions by the Court and promises and com-

mitments by the plaintiffs, the Court must and does con-

clude that the conduct of the plaintiffs demonstrates the

callous disregard of responsibilities counsel owe to the

Court and to their opponents. The practices of the plain-

tiffs exemplify flagrant bad faith when after being ex-

pressly directed to perform an act by a date certain, viz.,

June 14, 1974, they failed to perform and compounded

that noncompliance by waiting until five days afterwards

before they filed any motions. Moreover, this action Was

taken in the face of warnings that their failure to provide

certain information could result in the imposition of

sanctions under Fed.R.Civ.P. 37. If the sanction of dis-

missal is not warranted by the circumstances of this case,

A-15

then the Court can envisage no set of facts whereby that

sanction should ever be applied.’’ 427 U.S. at 640-641, 96

S. Ct. at 2779.

Under like circumstances we echoed the sentiments of the

Court, above, in Emerick v. Fenick Industries, Inc., supra,

with the following statement:

. when a [party]: demonstrated flagrant bad faith

and callous disregard of its responsibilities, the district

court's choice of the extreme sanction is not an abuse of

discretion. 539 F.2d at 1381.

We have also said that while it is true that sanctions im-

posed in these situations should be ‘‘no more drastic than

those actually required to protect the rights of other parties

. ., overleniency is to be avoided where it results in inade-

quate protection of discovery.’’ Diaz v. Southern Drilling

Corporation, supra. 5

[2] From a review of the full record in this case, it is

clear that the trial court did not abuse its discretion in dis-

missing the appellants’ cases. For a protracted period of

time, and even up until ten days before trial, appellants re-

fused to respond to discovery orders, seriously prejudicing

appellees in the preparation of their case. In view of this

pattern of callous disregard of court orders by appellants, in-

cluding failure to transcribe depositions, failure to submit to

court-ordered medical examinations, repeated failure to file

timely and complete answers to interrogatories, failure to

marshall exhibits, and failure to file witness lists, no lesser

sanction than dismissal would have been adequate to protect

the integrity of the court or the rights of the appellees.

AFFIRMED.

A-16

APPENDIX C

MINUTE ENTRY OF DISTRICT COURT

MINUTE ENTRY

SEAR, J.

AUGUST 22, 1977 Filed: August 24, 1977

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

IN RE LIQUID CARBONIC TRUCK DRIVERS M.D.L.

CHEMICAL POISONING LITIGATION NO. 252

On August 17, 1977 at 10:00 a.m. a hearing was held in

the captioned litigation at which the individual cases of

Charles Strain, Lenny Strain, Rodney Strain, Carl Martin,

and Dennis Morris were dismissed for failure to comply with

my order of August 10, 1977 that full and good faith answers

to interrogatories be filed by 5:00 p.m. on August 15, 1977.

The cases of the remaining plaintiffs were continued to be re-

scheduled. A single violation of a discovery order would not

ordinarily merit the extreme sanction of dismissal, but in

this instance the past history of this case reveals a marked

pattern of disobedience and lack of cooperation on the part

of the nine plaintiffs represented by Mr. Louis Koerner (and

in particular the five plaintiffs whose cases were dismissed)

and by Mr. Koerner himself, albeit unintentionally. The

cumulative effect of all of these incidents is a burden which

no defendant or court should be required to bear. Because

my decision was of such grave impact, I took time at the

hearing to recapitulate in detail the most obvious instances

of misconduct. In order to unequivocally preserve that his-

A-17

tory and my reasons for the record, I reiterate them here.

On August 16, 1976, a defendant United States Steel

Corporation filed a motion to dismiss. The Koerner plain-

tiffs had sued ‘‘Pittsburgh Testing Laboratories, Inc., a divi-

sion of United States Steel Corporation“. The ground upon

which United States Steel urged dismissal was that it has no

division named “Pittsburgh Testing Laboratories, Inc.“

Koerner admitted the technical impropriety of his pleadings,

but rather than solving the problem directly by amending

them and making the motion moot, Koerner insisted on

fighting the matter out. Koerner argued that on the basis

of equity United States Steel should not be dismissed. At

the hearing on the motion it was my opinion that since the

entity sued was in fact non-existent, United States Steel had

never been made a party at all. Koerner still did not amend

his pleadings to add United States Steel for reasons unknown.

On September 1, 1977, another defendant, Transitron

Mexicana moved to set aside an entry of default against it on

the grounds that it had never been properly served. At the

same time, it moved to be dismissed for lack of personal

jurisdiction. At the hearing on this motion it was determined

that Transitron Mexicana had not been timely served and the

default was vacated. Koerner filed no opposition to the

motion to dismiss apparently conceding also that Transitron

Mexicana had little or no business contracts in Louisiana.

Koerner informed the court that he had mistakenly sued

Transitron Mexicana, while meaning to sue the United States

division of the same corporation. Although Transitron Mexi-

cana was dismissed, again, Koerner made no attempt at that

time to bring suit against its American counterpart.

A-18

On November 30, 1977 the Judicial Panel on Multidistrict

Litigation ordered the transfer to this district for consolida-

tion of twenty-six cases from three judicial districts in two

states. Koerner was well aware of this decision, having been

present at the Panel's hearings, and should have understood

the necessity of adding any other defendants immediately.

However, he did not do so. The purpose of a multidistrict

proceeding is to assure the uniform and orderly distribution

of justice. Because these proceedings are typically large and

cumbersome, it is absolutely necessary that all attorneys and

parties cooperate fully with the court if the case is to be

managed at all. Koerner’s failure to add United States Steel

and Transitron before the multidistrict transfer was the first

evidence of problems to come.

On December 9, 1976 I issued a Practice and Procedure

order which set forth the ground rules for the multidistrict

litigation as it was to proceed in my court. This order set a

conference for January 12, 1977. Koerner did not add

United States Steel and Transitron before the conference,

with the result that their representatives were not present

when the discovery schedule was adopted and the trial date

set.

At the January 12, 1977 conference it was brought to my

attention that certain depositions had not been transcribed

by the responsible parties, Koerner’s plaintiffs, and were long

overdue. I ordered that the depositions he transcribed before

January 31, 1977. This was not done and has not been done

to this day.

Subsequently Koerner attempted to file a third amended

complaint adding United States Steel and Transitron without

A-19

leave of court, and by error in the clerk’s office, was per-

mitted to do so. Koerner would not voluntarily remove the

amended complaint from the record, but had to be ordered

by me to do so and to proceed properly. Finally, United

States Steel and Transitron were properly joined. However,

they had been stricken from the court’s mailing list at the

times of their dismissal and had not kept current with the

case.

In early March both United States Steel and Transitron

filed motions to dismiss on the grounds that they would be

prejudiced by being joined so late in the litigation. Despite

the fact that Koerner could offer no reasonable explanation

for having waited five months since the dismissals of these

two defendants to re-join them in the litigation, I did not dis-

miss the case against them. I did order that Koerner’s plain-

tiffs bear the cost of United States Steel and Transitron

“catching up” with the case. Despite the court order, Koer-

ner was recalcitrant in this regard, and the court received

several telephone calls and letters complaining of Koerner’s

failure to pay these catch up”’ costs.

In early May both Process Engineering and Liquid Car-

bonic filed various motions to dismiss because of Koerner’s

plaintiffs’ failure to comply with numerous discovery orders.

These motions were referred to Magistrate Hughes who set

them for hearing on June 15.

In the meantime, the court was informed that five of

Koerner's plaintiffs (those dismissed here) had attempted to

discharge Koerner and to find new counsel. I called a con-

ference to deal with this new problem at which, in addition

to all counsel, Koerner’s plaintiffs were present. The plain-

A-20

tiffs were informed that they could retain new counsel if

they wished to do so, however, any counsel brought into the

case at this stage would have to assure the court that the

trial date of August 29, 1977 could be met. After some in-

vestigation, it developed that plaintiffs could not find an

attorney who was either willing to shculder the financial

burden involved in the case or prepare the case in time for

the August 29th trial. After further negotiations, the dis-

satisfied plaintiffs seemed to resolve their differences with

Koerner and returned to his fold.

On June 9, 1977 I assisted in a settlement conference be-

tween all of the plaintiffs and a large block of the defendants

referred to in this suit as the chemical companies”. It seem-

ed at time a hopeless cause, but after hours of effort on the

part of all concerned, myself included, it appeared that a

settlement had been tentatively confected. (This settlement

was finally concluded on August 10, 1977 by a consent de-

cree in my courtroom.)

On June 15, 1977 Magistrate Hughes heard the motions of

Process Engineering and Liquid Carbonic to dismiss. The pri-

mary grounds for the motions were (1) failure of Koerner’s

plaintiffs’ to answer interrogatories, and (2) failure, of two of

Koerner’s plaintiffs to submit to medical examinations or-

dered by the Court. Magistrate Hughes issued a minute entry

on the same day stating that unless these two failures were

cured by July 1, 1977 the cases were to be dismissed with-

out further motion. The July lst date came and went ‘with

no answers and no medical examination. Koerner apparently

got an informal extension from Process Engineering's attor-

ney until July Sth of which the court was not informed.

Koerner did indeed file answers on July 5th; however, he

A-21

gave them to Process Engineering’s attorney only on July

llth. On July 14, 1977 Magistrate Hughes, by way of

follow-up to the earlier proceedings, submitted a report and

recommendation to me. The report recommended first that

the cases of the two plaintiffs who failed to submit to medi-

cal examinations be dismissed, and second that the cases of

the rest of Koerner’s plaintiffs also be dismissed for failure to

file answers by July lst, unless I found that the answers

which were submitted late were complete and good faith

answers. :

Since it appeared that none of the remaining defendants

were satisfied with the answers Koerner had supplied, Magis-

trate Hughes called a further conference on July 20th to dis-

cuss the problem. At five o’clock on that day, Magistrate

Hughes and the attorneys removed the conference to my

chambers. At the conclusion of the conference it was deter-

mined that Koerner would submit new answers and that

Magistrate Hughes would carefully review them to ascertain

whether the deficiencies in Koerner’s July 5th answers had

been corrected.

On August 2, 1977 my law clerk received a telephone call

from Anthony Dingleman, an attorney who represented two

plaintiffs. Dingleman reminded my law clerk that, according

to a court order entered in January of this year, all exhibits

in the cases were to be brought to my chambers on the

following day for examination by opposing counsel. Dingle-

man then informed the law clerk that, although he was

ready with his exhibits, he had just learned that Koerner had

left town on an emergency matter, was unaware of the mar-

shalling order, and had made no preparations for the follow-

ing day. Dingleman filed a motion for extension of time on

A-22

behalf of Koerner, but the motion was denied since all de-

fense counsel strenuously opposed it. Late on August 2nd

at my instruction, my law clerk telephoned Koerner’s office

and spoke to Koerner’s associate, Steven Bernstein. Bern-

stein was told that the exhibits were due in chambers on the

morrow and to make preparations as best he could since

there would be no extension of time.

On August 3rd defendants’ counsel arrived at my chambers

with all exhibits neatly ordered and labeled. Throughout the

day Bernstein, who knew virtually nothing about the case,

with the help of the rather flustered Dingleman, raced back

and forth between Koerner's office and my chambers at-

tempting to assemble some sort of presentation of Koerner’s

exhibits. Naturally, the results of their labors were confus-

ing at best. Included among Koerner’s plaintiffs exhibits

was a large box full of perhaps a thousand sheets of mis-

cellaneous unrelated papers marked as a single exhibit, and a

set of personal photographs of Koerner totally unrelated to

the case.

Koerner appeared briefly upon his return the following

day, after being called and told to put his exhibits in order.

However, Koerner did nothing to re-arrange his exhibits,

but spent what little time he was in my chambers reviewing

the exhibits of the defendants.

Meanwhile, Magistrate Hughes had reviewed Koerner's

latest set of answers and found no substantial improvement

over the original answers“. He submitted a second report on

August Sth, recommending this time that the case be con-

tinued, commented that “I do not believe defendants can be

compelled to go to trial on the information they have at hand

A-23

and may yet require with future discovery.“

Determining that matters were quickly reaching a crisis

stage, I called a hearing for August 10th to decide what

action should be taken concerning Magistrate Hughes recom-

mendation of July 14, 1977 that Koerner’s plaintiffs’ cases

be dismissed. At the hearing the complaints of all sides were

fully aired. My decision was that if Koerner did not submit

satisfactory answers to the interrogatories by August 15,

1977 at 5:00 p.m., his cases would be dismissed. Koerner

informed me that I had set him an impossible task. I reason-

ed however, that the interrogatories had been outstanding for

many months, and that in view of the impending trial date, it

was imperative that they be answered immediately.

The pre-trial conference was scheduled for 9:00 a.m. on

August 15, 1977. All counsel except Koerner arrived at my

chambers on time. At 9:10 my law clerk received a tele-

phone call from Koerner to the effect that he was in the

process of xeroxing the pre-trial order (five copies, at 78

pages each) and that he would be over when this was com-

pleted. Koerner was told to leave his xeroxing for later and

to come immediately to my chambers with what he had.

When Koerner arrived it turned out that the pre-trial order

he brought with him had been substantially expanded from

the version last seen and agreed to by defendants’ counsel.

Since no one except Koerner had seen the order in its new

form, no one except Koerner was willing to sign the order,

and further discussion about the contents of the order

seemed fruitless. I instructed all counsel to appear in my

courtroom on August 17, 1977 at 10:00 a.m. with a pre-

trial order that could be signed, and indicated that we would

also discuss at that time the possibilities that the case be

A-24

continued or dismissed. August 17th was also the date set in

the marshalling order for ruling on all objections to exhibits.

. At 5:15 on August 15, 1977 counsel for the defendants

telephoned my office and left word with my law clerk that

Koerner had not supplied revised answers by the 5:00 dead-

line. Apparently, the new answers were supplied thereafter

on August 16th and 17th.

On the morning of August 17th shortly before 10:00 a.m.

Koerner called my office to find out when the conference

was going to take place“. He was informed that not only

was the conference“ scheduled for 10:00 a.m. that morn-

ing, as had been clearly announced at the pre-trial confer-

ence, but that all objections to exhibits would also be ruled

upon at that time, as scheduled by the Marshalling Order.

That same morning defendants’ counsel filed an ex parte

motion to dismiss on the ground that Koerner had blatant-

ly failed to comply with my order of August 10th that he

submit answers by August 15th at 5:00 p.m.

Rule 37 of the Federal rules of Civil Procedure provides

dismissal as the most extreme sanction for failure to comply

with a discovery order of the court. In Societe Internationale

v. Rogers, 1958, 78 S.Ct. 1087, the Supreme Court explained

that Rule 37

should not be construed to authorize dismissal of

[a] complaint because of petitioner’s noncompli-

ance with a pre-trial [discovery] order when it

has been established that failure to comply has

been due to inability, and not to willfulness, bad

A-25

faith, or any fault of petitioner.

Id. at 1096. On the other hand, the Supreme Court recently

overturned a Court of Appeals decision which had reversed a

district judge’s dismissal of a plaintiff for failure to answer

interrogatories pursuant to a court order. The opinion of the

district judge was quoted as follows:

After seventeen months where crucial interroga-

tories remained substantially unanswered despite

numerous extensions granted at the eleventh hour

and, in many instances, beyond the eleventh hour,

and notwithstanding several admonitions by the

Court and promises and commitments by the plain-

tiffs, the Court must and does conclude that the

conduct of the plaintiffs demonstrates the callous

disregard of responsibilities counsel owe to the

Court and to their opponents. The practices of

the plaintiffs exemplify flagrant bad faith when

after being expressly directed to perform an act

by a date certain, viz., June 14, 1974, they failed

to perform and compounded that noncompliance

by waiting until five days afterwards before they

filed any motions. Moreover, this action was taken

in the face of warnings that their failure to provide

certain information could result in the imposition

of sanctions under Fed.R.Civ.P. 37. If the sanction

of dismissal is not warranted by the circumstances

of this case, then the Court can envisage no set of

facts whereby that sanction should ever be applied.

The Supreme Court found that under the circumstances the

district judge had not abused his discretion and commented

A-26

on the reversal by the Court of Appeals as follows:

There is a natural tendency on the part of re-

viewing courts, properly employing the benefit of

hindsight, to be heavily influenced by the severity

of outright dismissal as a sanction for failure to

comply with a discovery order. It is quite reason-

able to conclude that a party who has been sub-

jected to such an order will feel duly chastened, so

that even though he succeeds in having the order

reversed on appeal he will nonetheless comply

promptly with future discovery orders of the,

District Court.

But here as in other areas of the law, the most

severe in the spectrum of sanctions provided by

statue or rule must be available to the District

Court in appropriate cases, not merely to penalize

those whose conduct may be deemed to warrant

such a sanction, but to deter those who might be

tempted to such conduct in the absence of such a

deterrent. If the decision of the Court of Appeals

remained undisturbed in this case, it might well be

that these respondents would faithfully comply

with all future discovery orders entered by the Dis-

trict Court in this case. But other parties to other

lawsuits would feel freer than we think Rule 37

contemplates they should feel to flout other dis-

covery orders of other district courts.”’

Id. at 2780-81.

A-27

In this case, I cannot say that the failure of Koerner to

comply with my order was due to any subjective bad faith

on his part. But it certainly was ‘“willful’’ in that it was done

with full knowledge of the terms of my order and the con-

sequences, and it was certainly his fault“, in that the failure

to comply was entirely attributable to Koerner and his plain-

tiffs and was not caused by any outside hindrance. On the

other hand, the deliberate refusal by the five plaintiffs dis-

missed hereto cooperate with Koerner in his efforts to com-

ply with discovery is indeed bad faith, for which there is no

excuse,

I have been extremely lenient with these plaintiffs. They

have been under court order to answer these interrogatories

since June 15, 1977. They have twice before been threaten-

ed with dismissal for failure to satisfactorily answer these

same interrogatories. Each time before the threat has been

withdrawn and plaintiffs have been given a reprieve. The

order of August 10th would have commanded a third set of

answers to the same questions had it been followed. A-

though I believe that a dismissal of all nine plaintiffs would

be justified, I have limited the dismissal to the five named

here since it is my understanding that these five contributed

to the failure to answer interrogatories by refusing to speak

to Koerner or answer his telephone calls over a period of

several months while the interrogatories were outstanding.

The remaining four plaintiffs have apparently offered Koer-

ner some measure of cooperation on the interrogatories, and

this minimal demonstration of good faith, makes me reluc-

tant to dismiss their cases. However, if the interrogatories

are not fully answered and the depositions transcribed by

August 29th their cases will also be dismissed.

s/ M. L. S.

MOREY L. SEAR

UNITED STATES DISTRICT JUDGE

A-28

HEARING ON MOTION AND PROPOSED ORDER TO

REINSTATE CASES AND TRIAL DATE -- MOTION

DENIED

RODNEY J. STRAIN CIVIL ACTION

vs. No. 74-2363

KENNETH TURNER, et al. Section “G”

CHARLES J. STRAIN CIVIL ACTION

vs. No. 74-2364

KENNETH TURNER, et al. Section · G

CARL MARTIN CIVIL ACTION

vs. No. 74-2368

KENNETH TURNER, et al. Section “G”

DENNIS MORRIS CIVIL ACTION

vs. | No. 74-2452

KENNETH TURNER, et al. Section “G”

LENNY STRAIN CIVIL ACTION

vs. No. 74-3139

KENNETH TURNER, et al. Section G“

JUDGE SEAR PRESIDING

WED. AUG. 24, 1977

Bes. 10:00 AM

MOTION AND PROPOSED ORDER TO REINSTATE

CASES AND TRIAL DATE BY PLTFS ALL PRESENT

AND READY

A-29

COUNSEL PRESENT FOR

EDWARD J. RICE, JR. ESQ. 10 EXEC, OFFICER FOR

LIQUID

LLOYD W. HAYES, ESQ. CARBONID CORP.

LOUIS R. KOERNER, JR., ESQ. RODNEY STRAIN,

ET AL.

STEPHEN M. BERNSTEIN,ESQ. SAME

JERRY L. SAPORITI, ESQ. PROCESS ENG. INC.

JOSEPH S. PALERMO, JR., ESQ. SAME

PLTF WITNESS, CARL MARTIN, CALLED, SWORN,

TESTIFIES.

MOTION DENIED BY THE COURT TO REINSTATE

CASES AND FOR TRIAL DATE.

DATE OF ENTRY Aug. 24, 1977

A-30

MINUTE ENTRY OF AUGUST 29, 1977

MINUTE ENTRY

SEAR, J.

AUGUST 29, 1977

Filed: Aug. 29, 1977

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

IN RE LIQUID CARBONIC TRUCK M. D. L.

DRIVERS CHEMICAL POINSONING NO. 252

LITIGATION

It has come to my attention that the name and citation of

the recent Supreme Court case I referred to in my minute

entry of August 22, 1977 was omitted. Accordingly, the

following citatuion should be added to the bottom of page 6

of that minute entry: National Hockey League v. Metro-

politan Hockey Club, Inc., 1976, 96 S.Ct. 2778, 2779-80.

s/ M.L.S.

MOREY L. SEAR

UNITED STATES DISTRICT JUDGE

DATE OF ENTRY Aug. 29, 1977

A ae — maa

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.