Banco Del Atlantico v. Woods Industries, In ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2238
BANCO DEL ATLANTICO, S.A. and HSBC MEXICO, S.A.,
Plaintiffs-Appellants,
v.
WOODS INDUSTRIES INCORPORATED,
WILLOW PROPERTIES, INC., NAHUM SHAR, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 03 C 1342—Larry J. McKinney, Judge.
____________
ARGUED FEBRUARY 13, 2008 — DECIDED MARCH 7, 2008
____________
Before CUDAHY, POSNER, and EVANS, Circuit Judges.
EVANS, Circuit Judge. This case is a dozen years old,
which would ordinarily mean that the issue raised on
appeal should certainly not be about discovery. But this is not
your ordinary case. Its history is extraordinary—extraordi-
narily troublesome. The case was pending in a federal dis-
trict court in Texas for over seven years and has been
pending in a federal district court in Indiana for five. But
after all this time, the only issue before us is whether the
district judge abused his discretion in dismissing the plain-
tiffs’ case because they violated, in several respects, an order
2 No. 07-2238
entered pursuant to Federal Rule of Civil Procedure 30(b)(6).
The violations involved the plaintiffs’ failure to produce
deponents prepared to address the topics in defendant’s
notice of deposition, their failure to produce or account for
important documents, and their instructing witnesses to
be unavailable for deposition.
In a bulky (285-paragraph, 108-page!) second amended
complaint, the plaintiffs charged the defendants with “a
prolonged, elaborate and sophisticated” fraud scheme in
violation of the federal racketeering statute (RICO), plus
a bevy of other claims. The allegations are that the defen-
dants Alfred Stauder and David Felts owned an Indiana
company called Woods Wire Products Inc. (Woods I). The
company manufactured and distributed electrical products.
In 1986, Mario Cruz-Prieto Perez, Stauder, and others formed
a Mexican company they called Industrias Corelmex, S.A.
de C.V. to be a supplier for Woods I. In 1987, Banco del
Atlantico loaned $300,000 to Corelmex before it was opera-
tional. The loan was secured by a mortgage on Corelmex’s
industrial plant. In August 1991, Atlantico entered into a
$7 million loan agreement which consolidated and restruc-
tured previously issued lines of credit. At least one other
loan followed. The various loans were secured by the
Corelmex plant and equipment, a mortgage on other real
estate, and “guarantees” from Woods I.
The plaintiffs allege that the loans were induced by a
number of false statements relating to the value of the
collateral, Corelmex’s financial condition, and Woods I’s
intention to recognize its commitments under the guarantees.
For instance, Stauder and Felts sold Corelmex to Cruz. The
sale was not disclosed, and the allegation is that it is
unlikely Atlantico would have approved the financing had
it known of the sale. Also, in March 1993, virtually all of
Woods I’s assets and liabilities were purchased by Pentland
USA. However, excluded from the transfer was Woods I’s
No. 07-2238 3
guarantee of Atlantico’s loans to Corelmex. Woods I’s
business was continued by Woods II under Pentland’s
close supervision.
The present lawsuit was filed by Banco del Atlantico, S.A.
in the United States District Court for the Southern District of
Texas in 1996. Less than two years later, Atlantico ceased
operation and Banco International, S.A. (Bital), its receiver,
took over the prosecution of this lawsuit. HSBC Mexico,
S.A. was joined as a plaintiff in 2004.
While the case was pending in Texas, the defendants
moved to dismiss on grounds of forum non conveniens,
international comity, and failure to state a claim. In response
to the motion based on forum non conveniens, the plaintiffs
argued that the alternative forum, the Mexican court
which was now handling Corelmex’s bankruptcy (for by
this time the company was in bankruptcy), was corrupt.
Plaintiffs also contended that defendants had bribed the
Mexican judge. A magistrate judge, apparently unim-
pressed with these claims, recommended dismissal of the
case.
It was two years after the recommendation was entered
that a district judge stated his concern over the allegations
of corruption. He ordered limited discovery on that issue,
authorizing Atlantico to depose six individuals with rele-
vant knowledge. He also ordered that a brief sum-
marizing the evidence of corruption be filed by March 23,
2001. The deadline came and went and nothing was filed.
Further proceedings were held in Texas but nothing
was resolved, and the case was transferred to the United
States District Court for the Southern District of Indiana
in March 2003.
After the case had been pending for almost 10 years, the
first Rule 30(b)(6) depositions were attempted. In response to
4 No. 07-2238
the notice for the deposition, plaintiffs designated Maricela
Huerta Cova, the person who signed interrogatory answers,
as the deponent. The deposition began in January 2006, but
produced virtually no information because plaintiffs’ counsel
interposed an inordinate number of privilege and work
product objections, instructing Huerta Cova not to answer
even basic questions. For instance, counsel instructed Huerta
Cova not to answer this question: “Are you a witness as
a representative of HSBC Mexico today?”
Understandably unsatisfied with the deposition, defen-
dants moved to compel further testimony. In an April 28,
2006, order, Magistrate Judge V. Sue Shields called the
deposition a “fiasco.” She said:
[T]he vast majority of plaintiffs’ objections were utterly
without merit and evince either a complete lack of
understanding of the Federal Rules of Civil Procedure
or, and far more likely, an intentional effort to obfuscate
and to impede the defendants’ legitimate efforts at
obtaining discovery in this case.
The magistrate judge pointed out that she had held more
than once that defendants are entitled to know what evid-
ence the plaintiffs have and how they intend to prove their
case. She did not recommend sanctions but rather gave the
plaintiffs two options as to how to proceed:
One option would be to reopen the deposition, deem
the plaintiffs to have waived any legitimate privilege
objections they may have had by interposing so many
frivolous privilege objections, and order the plaintiffs to
prepare their witness(es) thoroughly and completely
to respond to all of the defendants’ unanswered ques-
tions and to give further testimony regarding the sub-
jects set forth in the defendants’ deposition notice, with
the promise to recommend that the court dismiss the
plaintiffs’ case if they fail to comply. The other option
No. 07-2238 5
would be to forgo the Rule 30(b)(6) process because the
plaintiffs believe that there is no relevant information
that is “known or reasonably available to them.” Of
course, the plaintiffs would then be precluded from
offering any testimony at trial, other than that which
might be necessary to authenticate documents. In other
words, the plaintiffs will have to prove their case at
trial (and defend any summary judgment motion)
through the testimony of witnesses who are not em-
ployees or agents of or otherwise under the control of
either of the plaintiffs.
Plaintiffs moved for reconsideration. In denying the motion,
Judge Shields said “there is simply no justification for
allowing the plaintiffs to wait until sixty days prior to trial
to identify its own witnesses” in a case that has been pend-
ing for almost 10 years. Plaintiffs did not file objection to
the order under Rule 72.
Rather, they reopened the deposition and offered a substi-
tute corporate representative, Geoffrey Fichte, for Huerta
Cova. Nevertheless, the judge also ordered that Huerta Cova
again be deposed.
But these depositions were, in the words of District Judge
Larry J. McKinney, another “fiasco.” This time rather than
privilege objections, the plaintiffs substituted a series of
answers the defendants label “talking points.” Defendants
infer that the answers were prepared in advance; the same
answers were given to many, many questions. For instance,
defendants asked:
[I]s there any statement in [defendant’s exhibit 1], again,
by Pentland USA, that HSBC contends supports its
allegations of fraud in this case?
6 No. 07-2238
The answer:
Like I said, this document is part of an overall scheme in
which Pentland USA participated in. And I’m not quali-
fied to go through in example and exactly explain every
single aspect of this very complicated scheme.
Secondly, both deponents refused to answer questions and
rather referred to the pleadings or interrogatory answers.
For example:
Well, I’m not qualified to, you know, analyze and answer
this based on the facts of the case, but it is—HSBC has
provided facts on this case, and counsel has included
those and explained them in the—in the answers to
interrogatories in the second amended complaint.
Also, the deponents refused to answer on the ground that
HSBC has no firsthand knowledge or personal knowledge
of the fact supporting the allegations:
HSBC contends that, even though it has no firsthand
knowledge, it contends that and has clearly stated in
our complaint, that this was—this document served
as part of the overall scheme to defraud Atlantico.
Defendants also point out that sometimes the prepared
answers got mixed together and resulted in internally
contradictory answers. For example, when asked what was
untrue in a certain document, Fichte said, “I think I’ve
already answered this,” and also said, “I’m not able at this
point in time to answer that question.” It is hard to see how
both responses are true.
The defendants gave up and moved for sanctions. In
April 2007, Judge McKinney granted the motion. He referred
to the numerous objections lodged at Huerta Cova’s first
deposition. He then said:
No. 07-2238 7
The second, and more glaring problem, is the substance
of the deposition testimony provided by Fichte and
Huerta Cova. Like the first attempted Rule 30(b)(6)
deposition, the second attempt was a “fiasco.” Fichte and
Huerta Cova were unable to answer some of the most
basic questions underlying allegations that Plaintiffs have
made against Defendants. On numerous occasions,
they would respond that HSBC had no “firsthand”
knowledge or that the witness had no “personal” knowl-
edge, or they would refer to the Second Amended Com-
plaint, interrogatory answers, or a general “scheme to
defraud.” In particular, the witnesses were unable,
or unwilling, to indicate what was “fraudulent” about
documents or statements that Plaintiffs had cited in
their interrogatory answers.
The Court agrees with Judge Shields, who stated,
apparently more than once, that “at this point in the
litigation the defendants are entitled to know what
evidence the plaintiffs have regarding their claims and
how the plaintiffs intend to prove their case at trial.” Apr.
28, 2006, Entry (Docket No. 372). A review of the tran-
script of Fichte’s and Huerta Cova’s testimony leaves
the Court with the impression that, in spite of a clear
warning from Judge Shields, the witnesses were either
unprepared for the depositions or were attempting to
hinder and obfuscate Defendants’ efforts at obtaining
discovery in the case. The rationale for the latter possi-
bility is that Plaintiffs simply do not have any informa-
tion to support their claims, in which case there is little
point in subjecting Defendants to further expense and
unproductive efforts in attempting to resolve this matter.
And with that, Judge McKinney apparently concluded
that enough was enough, so he granted the defendants’
motion to dismiss.
8 No. 07-2238
The question before us on the plaintiffs’ appeal is whether
Judge McKinney abused his discretion in putting an end
to this case. Ladien v. Astrachan, 128 F.3d 1051 (7th Cir. 1997).
We have cautioned that a sanction of dismissal is a last
resort which can only be employed in rare cases. See
Schilling v. Walworth County Park & Planning Comm., 805
F.2d 272 (7th Cir. 1986). It is a “draconian” remedy, Marrocco
v. General Motors Corp., 966 F.2d 220, 223 (7th Cir. 1992),
which should be applied only in extreme situations,
when there is a clear record of delay or contumacious con-
duct, or when other less drastic sanctions have proven
unavailing. Webber v. Eye Corp., 721 F.2d 1067 (7th Cir. 1983).
That doesn’t mean, however, that it can never be used. Even
Draco got it right every once in awhile, and today, when
district courts have several hundred cases on their dockets,
there are times when the “draconian” remedy is appropos.
And that time was reached in this case.
On appeal, the plaintiffs argue, among other things, that
“there was no finding or record of delay, contumacious
conduct, willfulness, bad faith or fault . . . .” The argument
is—if nothing else—audacious. There is, in fact, little else
in the record.
Plaintiffs contend that the order setting out their op-
tions placed them in an “untenable position.” We dis-
agree. But even if it did, they have forfeited their rights to
appeal the order. They did not seek relief under Rule 72(b)
from the district judge. We have determined that a failure
to file objections with the district judge waives the right
to appeal the issues. Video Views, Inc. v. Studio 21, Ltd., 797
F.2d 538 (7th Cir. 1986).
It is clear from the examples we have quoted, as well as
many others in the record, that the deponents offered evasive
responses. Plaintiffs also cannot defend themselves by
arguing that the defendants’ questions asked for legal
No. 07-2238 9
conclusions, rather than facts. Our review of the record
reveals that many of the questions merely asked the wit-
nesses to point to false statements in the documents. If a
question was answered, more often than not the answer
was too vague to provide helpful information. Saying,
for instance, that something “is just one more element of
the fraud scheme plant” is not enlightening. Furthermore,
questions relating to legal contentions are not barred.
The plaintiffs also contend that, even if the deposition
answers were inadequate, the information was provided
by other means, notably interrogatory answers. We do not
agree that plaintiffs provided the information, but even if
they did, they still could be required to provide responsive
answers to proper deposition questions.
For these reasons, we see no basis on which to find that
the district judge abused his discretion in dismissing the
case as a sanction for the violation of clear and reasonable
orders. Accordingly, the judgment of the district court
is AFFIRMED.
USCA-02-C-0072—3-7-08