Dolores Comstock v. UPS Ground Freight, Inc. , 775 F.3d 990 ( 2014 )


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  •                 United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 13-2773
    ___________________________
    Dolores Comstock, Special Administrator of the Estate of William Gumby
    lllllllllllllllllllll Plaintiff - Appellant
    v.
    UPS Ground Freight, Inc.; Allen Howard
    lllllllllllllllllllll Defendants - Appellees
    ____________
    Appeal from United States District Court
    for the Eastern District of Arkansas - Little Rock
    ____________
    Submitted: September 8, 2014
    Filed: December 30, 2014
    ____________
    Before BYE, COLLOTON, and GRUENDER, Circuit Judges.
    ____________
    GRUENDER, Circuit Judge.
    Responding to serious misconduct during discovery, the district court1
    sanctioned Dolores Comstock by dismissing her lawsuit. Comstock appeals this
    dismissal, and we affirm.
    1
    The Honorable Susan Webber Wright, United States District Judge for the
    Eastern District of Arkansas.
    This suit arose from a nighttime automobile accident in February 2011. After
    Allen Howard allegedly rear-ended a vehicle driven by William Gumby, Gumby sued
    Howard and his employer, UPS Ground Freight, Inc. (together, “UPS”). Contending
    that Gumby’s health might have contributed to the accident, UPS requested
    information such as Gumby’s medical records and the identity of anyone with
    knowledge concerning this defense. In response to UPS’s first set of interrogatories,
    Gumby provided UPS with the names of one physician and one hospital from which
    he had received pre-accident care.
    Gumby died about a year later. Dolores Comstock, Gumby’s daughter and the
    administrator of his estate, was substituted as plaintiff. Both Gumby and then
    Comstock were represented by Jessica Virden. In July 2012, nearly a year after
    discovery began, Comstock produced documents revealing many more of Gumby’s
    medical providers, but even then, Comstock still did not produce all the requested
    medical information. On August 20, 2012, the court ordered Comstock to complete
    this production by September 28. She failed to do so. In December 2012, Comstock
    provided UPS with over 3,000 pages of documents, many of which she had already
    produced. Among those 3,000 pages, however, were new documents showing that
    Gumby had a history of vision problems; suffered from dizziness, paranoia, and
    hallucinations while driving; had been instructed not to drive at night; and had been
    hospitalized hours before the accident. Indeed, Comstock herself had called law
    enforcement that night, worried because Gumby, without telling his family, had left
    Pennsylvania to drive home to Arkansas. This production came well after UPS had
    deposed Gumby and some of his family members.
    The district court noted further misconduct beyond Comstock’s failure to
    produce the medical information. For example, Comstock and Virden “strain[ed]
    credulity” in representing that they did not know of Gumby’s poor health before the
    accident. Moreover, Comstock had hired an expert accident reconstructionist, but
    Comstock did not, as required, produce all the expert’s test results to UPS. In
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    response to this misconduct, the court found that Comstock had caused “extreme
    prejudice” to UPS by intentionally violating the August 2012 order and Federal Rule
    of Civil Procedure 26. Granting UPS’s motion, the court sanctioned Comstock under
    Federal Rule of Civil Procedure 37(b)(2) by dismissing the suit. Comstock appeals.
    Although we have said that “‘we more closely scrutinize [the sanction of]
    dismissal,’” ultimately we review discovery sanctions for abuse of discretion.
    Bergstrom v. Frascone, 
    744 F.3d 571
    , 576 (8th Cir. 2014) (quoting Sentis Grp., Inc.v.
    Shell Oil Co., 
    559 F.3d 888
    , 899 (8th Cir. 2009)); see also Sentis Grp., Inc. v. Shell
    Oil Co., 
    763 F.3d 919
    , 924 (8th Cir. 2014). Under Rule 37, “[d]ismissal as a
    discovery sanction is available only if there is ‘(1) an order compelling discovery, (2)
    a willful violation of the order, and (3) prejudice.’” 
    Bergstrom, 744 F.3d at 576
    (quoting Schoffstall v. Henderson, 
    223 F.3d 818
    , 823 (8th Cir. 2000)). “‘[I]n this
    circuit, before dismissing a case under Rule 37(b)(2) the court must investigate
    whether a sanction less extreme than dismissal would suffice, unless the party’s failure
    was deliberate or in bad faith.’” 
    Id. (quoting Avionic
    Co. v. Gen. Dynamics Corp.,
    
    957 F.2d 555
    , 558 (8th Cir. 1992)); see also Denton v. Mr. Swiss of Mo., Inc.,
    
    564 F.2d 236
    , 240-41 (8th Cir. 1977).
    Dismissal of Comstock’s lawsuit was available as a discovery sanction because
    the August 2012 order compelled discovery, and the court found that Comstock
    intentionally failed to comply with the order, thereby causing prejudice to UPS.
    Though Comstock argues that the prejudice was curable, she does not contest any
    aspect of the court’s finding, including that UPS was prejudiced. We note just one
    example of this prejudice, that Comstock’s non-production hampered UPS’s ability
    to conduct several depositions, including that of Gumby, who cannot now be
    re-deposed. See Nat’l Liberty Corp. v. Wal-Mart Stores, Inc., 
    120 F.3d 913
    , 917
    (8th Cir. 1997) (finding no clear error in determination that need to retake depositions
    was prejudicial); see also ACLU of Minn. v. Tarek ibn Ziyad Acad., 
    643 F.3d 1088
    ,
    1094-95 (8th Cir. 2011) (noting various ways prejudice can accrue after discovery has
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    begun). Thus, dismissal of Comstock’s suit was available as a sanction under Rule
    37. See 
    Bergstrom, 744 F.3d at 576
    .
    With this sanction available, we find no abuse of discretion in the district
    court’s decision to dismiss Comstock’s lawsuit. Given the serious misconduct
    here—which included non-production of medical information critical to UPS’s
    defense, “unbelievable” representations by Comstock and Virden that they were
    unaware of Gumby’s pre-existing health problems, and violation of an order requiring
    production of the expert’s test results—the court was within its discretion to dismiss
    Comstock’s suit. See Martin v. DaimlerChrysler Corp., 
    251 F.3d 691
    , 694-95
    (8th Cir. 2001) (affirming dismissal in response to perjurious nondisclosure in
    discovery); Chrysler Corp. v. Carey, 
    186 F.3d 1016
    , 1019-22 (8th Cir. 1999)
    (upholding a default judgment in response to non-production and false denials).
    Comstock does not argue that dismissal was wrongfully disproportionate to her
    misconduct. Rather, she offers two arguments as to why dismissal was improper, the
    first regarding lesser sanctions and the second regarding non-parties.
    First, Comstock argues that the prejudice to UPS could have been ameliorated
    by sanctions less than dismissal or that the court at least should have considered lesser
    sanctions. A court dismissing under Rule 37, however, need not investigate lesser
    sanctions when a party’s violation is deliberate.2 
    Bergstrom, 744 F.3d at 576
    .
    Comstock does not dispute the district court’s explicit finding that the violation was
    intentional. As such, the court was not required to consider lesser sanctions. It
    follows that the court also did not abuse its discretion just because it did not impose
    lesser sanctions. See 
    Carey, 186 F.3d at 1022
    (noting, while upholding dismissal
    2
    Of course, we still review the dismissal itself for abuse of discretion, as we
    have done here. “[N]ot every instance of failure to comply with an order of court,
    however inexcusable, justifies total extinction of a . . . cause of action.” Givens v.
    A.H. Robins Co., Inc., 
    751 F.2d 261
    , 263 (8th Cir. 1984).
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    under Rule 37, that “[t]he district court is not constrained to impose the least onerous
    sanction available, but may exercise its discretion to choose the most appropriate
    sanction under the circumstances”).
    For this lesser-sanction argument, Comstock relies primarily on Shepherd v.
    American Broadcasting Companies, Inc., 
    62 F.3d 1469
    (D.C. Cir. 1995), which she
    claims we adopted in Martin v. DaimlerChrysler Corp., 
    251 F.3d 691
    (8th Cir. 2001).
    Comstock is correct that Shepherd requires a district court to “articulate a reasoned
    rejection of lesser sanctions” before dismissing under its inherent 
    authority. 62 F.3d at 1480
    . But Shepherd concerned only inherent authority, and the court
    distinguished a prior decision that involved a sanction imposed under Rule 37, “which
    expressly authorizes dismissal or default for noncompliance with a discovery order.”
    
    Id. (citing Weisberg
    v. Webster, 
    749 F.2d 864
    (D.C. Cir. 1984)). Likewise, in this
    circuit, Shepherd’s rule for the exercise of inherent authority is not the law for Rule
    37 dismissals. See 
    Bergstrom, 744 F.3d at 576
    . The better reading of Martin is
    simply that, under the facts of that case, Shepherd’s conditions for dismissal under
    inherent authority were satisfied even assuming that Shepherd applied in this circuit
    to Rule 37 dismissals. 
    Martin, 251 F.3d at 694-95
    . Martin did not alter our case law
    holding that, in cases of intentional misconduct, a court dismissing under Rule 37 does
    not abuse its discretion simply by not investigating lesser sanctions. Under that rule,
    Comstock’s first argument fails.
    Comstock also argues that with her suit dismissed, creditors and beneficiaries
    of Gumby’s estate will lose recovery through no fault of their own. But Comstock
    cites no cases holding that a court must consider a sanction’s secondary effects on
    non-parties, and we are unaware of any such rule. Accordingly, we find no abuse of
    discretion on this basis.
    The judgment of the district court is affirmed.
    ______________________________
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