Marielle Kronberg v. Lyndon Larouche ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1015
MARIELLE KRONBERG (“Molly”),
Plaintiff – Appellee,
v.
LYNDON LAROUCHE; BARBARA BOYD; LYNDON LAROUCHE POLITICAL
ACTION COMMITTEE; EIR NEWS SERVICE, INCORPORATED,
Defendants – Appellants.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Anthony J. Trenga,
District Judge. (1:09-cv-00947-AJT-JFA)
Argued: December 6, 2011 Decided: January 6, 2012
Before NIEMEYER, SHEDD, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Jonathan Richard Mook, DIMUROGINSBERG, PC, Alexandria,
Virginia, for Appellants. James Stephen DelSordo, ARGUS LEGAL,
LLC, Manassas, Virginia, for Appellee. ON BRIEF: Bernard J.
DiMuro, Nina J. Ginsberg, DIMUROGINSBERG, PC, Alexandria,
Virginia; Edward B. MacMahon, Jr., Middleburg, Virginia, for
Appellants.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marielle Kronberg, a former supporter of Lyndon LaRouche,
instituted this action under 42 U.S.C. § 1985 against LaRouche,
Barbara Boyd, the Lyndon LaRouche Political Action Committee,
and the EIR News Service (collectively “the Defendants”),
alleging that they conspired to injure her in retaliation for
her testimony at LaRouche’s 1988 criminal trial. Following the
denial of the Defendants’ Rule 12(b)(6) motion to dismiss, the
case proceeded to discovery. After Kronberg failed to meet her
discovery obligations, the magistrate judge ordered a show cause
hearing and eventually entered a Report and Recommendation
recommending that the case be dismissed without prejudice.
Following a de novo review, the district court adopted the
Report and Recommendation and dismissed the case without
prejudice. On appeal, the Defendants argue that the district
court should have dismissed the case with prejudice or, in the
alternative, that the court should have granted its 12(b)(6)
motion. For the following reasons, we affirm the district
court’s sanctions order and decline to consider the denial of
the Rule 12(b)(6) motion.
I.
Kronberg and her husband, Kenneth, were members of the
National Caucus of Labor Committees (NCLC), an organization of
2
LaRouche supporters. Kenneth also operated PMR, a printing
company for LaRouche’s materials. In April 2007, Kenneth
committed suicide and, in the following months, LaRouche made
statements blaming Kronberg for her husband’s death and claiming
that Kronberg falsely testified against LaRouche at the 1988
trial. In response, Kronberg filed an action against the
Defendants in federal court, alleging that they violated 42
U.S.C. § 1985 and committed libel per se under Virginia law.
The Defendants moved to dismiss, claiming that § 1985
creates a cause of action for litigants—not witnesses like
Kronberg—and that Kronberg’s complaint failed to state a viable
claim. The district court denied that motion.
The Defendants next moved to disqualify Kronberg’s counsel,
John Markham, who was the Assistant United States Attorney in
charge of prosecuting LaRouche in 1988. The district court
granted that motion and disqualified Markham from further
involvement in the case. On July 7, 2010, the parties agreed to
a joint discovery plan. At this point, Kronberg was represented
by John Bond, who had been serving as local counsel. As
relevant here, Kronberg failed to meet her discovery
obligations, and Bond eventually moved to withdraw. Kronberg’s
discovery failures ultimately led the Defendants to file a
Motion to Dismiss and/or for Appropriate Sanctions for Failure
to Comply with Discovery Orders.
3
The magistrate judge scheduled a hearing on the motion,
which neither Bond nor Kronberg attended. That action prompted
the magistrate judge to enter a show cause order “why this case
should not be dismissed for failure to prosecute and failure to
comply with previous orders of this court” and to schedule
another hearing. (J.A. 285). Kronberg appeared at the show
cause hearing, but Bond was again absent. During this hearing,
Kronberg informed the court that Bond never told her about the
discovery issues or the earlier hearing dates. She also read a
statement requesting that the court reconsider the
disqualification order.
On November 8, 2010, the magistrate judge entered a Report
and Recommendation recommending that the case be dismissed
without prejudice. The magistrate judge first noted that Bond
had finally contacted the court, informing it of significant
health problems and stating that he was simply unable to serve
as lead counsel in a case given these health issues. On that
basis, the magistrate judge recommended granting the motion to
withdraw. Turning to the motion for sanctions, the magistrate
judge found that Federal Rules of Civil Procedure 16 and 37(b)
both authorized sanctions and that “sanctions are appropriate.”
(J.A. 293). The magistrate judge then stated, however, that it
was “uncertain as to whether the responsibility for this bad
faith conduct lays primarily with the plaintiff or with her
4
attorney,” (J.A. 293) and that, because of this uncertainty, a
dismissal without prejudice was the “more appropriate sanction
in this case,” (J.A. 295). In declining to dismiss the case
with prejudice, the magistrate judge noted that, prior to
Markham’s disqualification, Kronberg had “demonstrated herself
to be a capable and diligent litigant,” thus suggesting that the
failures to comply with the court orders might be more the fault
of her attorney. (J.A. 296). The magistrate judge conceded
that the record was unclear on exactly how blameworthy Kronberg
herself was and that she undoubtedly “bears some personal
responsibility” for the discovery abuses. (J.A. 297). After a
de novo review, the district court adopted the magistrate’s
Report and Recommendation and dismissed the action without
prejudice. 1
II.
On appeal, the Defendants contend that dismissal with
prejudice was the appropriate sanction given Kronberg’s flouting
of the court’s discovery orders. 2 We review a district court’s
1
Kronberg has since filed a new action in the Eastern
District of Virginia.
2
Because we affirm the district court’s sanctions order
dismissing the case without prejudice, and because Kronberg has
already filed a new action, we decline to consider the portion
of the appeal challenging the denial of the Rule 12(b)(6)
motion.
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sanctions order for abuse of discretion. Anderson v. Found. for
Advancement, Educ. & Emp’t of Am. Indians, 155 F.3d 500, 504
(4th Cir. 1998).
Two rules provide the basis for sanctions in this case.
Rule 16(f) provides, in relevant part, that “the court may issue
any just orders” if a “party or its attorney” either “fails to
appear at a scheduling or other pretrial conference” or “fails
to obey a scheduling or other pretrial order.” Fed. R. Civ. P.
16(f)(1). Rule 37(b) provides for sanctions for failure to
comply with a court order and states that a court “may issue
further just orders” which “may include,” inter alia,
“dismissing the action or proceeding in whole or in part.” Fed.
R. Civ. P. 37(b)(2)(A)(v).
The Defendants rely primarily on Link v. Wabash R.R. Co.,
370 U.S. 626, 633-34 (1962), to argue that Kronberg should be
responsible for her counsel’s actions (or lack thereof). In
Link, the Supreme Court held that a district court did not abuse
its discretion in dismissing a case with prejudice when the
attorney failed to appear at a pretrial conference. The Court
explained that a party cannot “avoid the consequences of the
acts or omissions of this freely selected agent.” Id. Thus, “a
civil plaintiff may be deprived of his claim if he failed to see
to it that his lawyer acted with dispatch in the prosecution of
his lawsuit.” Id. at 634 n.10. We have recently reaffirmed the
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continuing vitality of Link. Robinson v. Wix Filtration Corp.
LLC, 599 F.3d 403, 409-11 (4th Cir. 2010).
The difficulty with the Defendants’ argument is that Link
(and our more recent precedent in Robinson) affirmed a district
court’s award of the harshest sanction. Link does not create a
requirement that a case be dismissed with prejudice when counsel
flouts court rules. In fact, the Defendants’ counsel conceded
at oral argument that he was unable to find any case in which a
circuit court reversed a district court’s order dismissing a
case without prejudice as a sanction and remanded for dismissal
with prejudice.
Instead, the decision to implement sanctions is left to the
discretion of the trial court. In this case, the magistrate
judge weighed the facts before it and ultimately concluded that—
because Kronberg had been a diligent litigant when she had
counsel of choice—it was unfair to dismiss the case with
prejudice. This decision is consistent with the “strong policy
that cases be decided on the merits, and that dismissal without
deciding the merits is the most extreme sanction” that should
only be done “with restraint.” United States v. Shaffer
Equipment Co., 11 F.3d 450, 462 (4th Cir. 1993). Importantly,
the magistrate judge correctly identified the multi-factored
test for whether dismissal with prejudice was appropriate, see
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Anderson, 155 F.3d at 504; Shaffer, 11 F.3d at 462-63, 3 and
applied that test to Kronberg’s situation. We cannot say the
court abused its discretion in declining to dismiss the case
with prejudice. 4
III.
For the foregoing reasons, the district court’s order is
affirmed.
AFFIRMED
3
In Shaffer, we explained that a court should look to the
following factors in deciding whether to dismiss with prejudice:
(1) the degree of the wrongdoer’s culpability; (2) the
extent of the client’s blameworthiness if the wrongful
conduct is committed by its attorney, recognizing that
we seldom dismiss claims against blameless clients;
(3) the prejudice to the judicial process and the
administration of justice; (4) the prejudice to the
victim; (5) the availability of other sanctions to
rectify the wrong by punishing culpable persons,
compensating harmed persons, and deterring similar
conduct in the future; and (6) the public interest.
Shaffer, 11 F.3d at 462-63.
4
The Defendants briefly argue that the district court
should have inquired further into the possibility that Markham
continued his participation in the case after his
disqualification. We see no abuse of discretion in the district
court’s decision to decline further inquiry once it dismissed
the case without prejudice.
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