Hildebrandt v. Veneman , 287 F.R.D. 88 ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
GEORGE HILDEBRANDT, JR. and )
PATRICIA HILDEBRANDT, )
)
Plaintiffs, )
)
v. ) Civil Action No. 04-1423 (PLF)
)
TOM VILSACK, Secretary, )
United States Department of Agriculture, )
)
and )
)
JOE LEONARD, JR., Assistant Secretary for )
Civil Rights, United States Department of )
Agriculture, )
)
1
Defendants. )
__________________________________________)
OPINION
This matter is before the Court on the defendants’ motion for sanctions against the
plaintiffs, along with the defendants’ motion to strike a “notice of filing” submitted by the
plaintiffs shortly after the filing of their memorandum opposing the motion for sanctions. The
defendants seek dismissal of this case (or, in the alternative, other severe sanctions) due to the
plaintiffs’ failure to obey a discovery order, along with other conduct by the plaintiffs that the
defendants contend has protracted this action and forced them to expend time and resources. The
defendants also maintain that the plaintiffs’ notice of filing violates the local rules of this Court.
1
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Tom Vilsack is
substituted for former Secretary of Agriculture Ann Veneman, and Joe Leonard, Jr., is substituted
for former USDA Assistant Secretary for Civil Rights Vernon Parker.
Upon consideration of the parties’ submissions, the relevant legal authorities, and the entire
record in this case, the Court will deny the defendants’ motion to strike, and it will grant in part
and deny in part the defendants’ motion for sanctions.2
I. BACKGROUND
Plaintiffs George and Patricia Hildebrandt brought this action against the
defendants under the Equal Credit Opportunity Act of 1972 (“ECOA”), 15 U.S.C. § 1691,
claiming that they have been discriminated against because of their race. See Second Amended
Complaint [Dkt. No. 33-2]. The plaintiffs originally were represented in this action by attorney
James W. Myart, Jr., who was counsel for the Hildebrandts until January 2008, after Mr. Myart’s
application to renew his membership in the bar of this Court was rejected.
The defendants served their first set of interrogatories and requests for production
on the plaintiffs in July 2006, in accordance with the Court’s Scheduling Order. Mem. at 2-3.
The plaintiffs did not respond within the thirty-day deadline established by the Scheduling Order,
and only after being reminded by the defendants of this missed deadline did they supply their
responses, eleven days late. Id. at 3. The defendants found the plaintiffs’ responses to the
discovery requests to be inadequate: the plaintiffs answered only one of the defendants’ nineteen
interrogatories and responded to only one of the twenty-nine requests for production; the
2
The papers filed in connection with this matter include: defendants’ motion for
dismissal or other sanctions (“Mot. Sanctions”) and supporting memorandum (“Mem.”) [Dkt.
No. 115]; plaintiffs’ opposition (“Opp.”) [Dkt. No. 119]; defendants’ reply (“Reply”) [Dkt. No.
122]; plaintiffs’ notice of filing (“Notice of Filing”) [Dkt. No. 120]; defendants’ motion to strike
plaintiffs’ notice of filing (“Mot. Strike”) [Dkt. No. 124]; plaintiffs’ opposition to defendants’
motion to strike (“Mot. Strike Opp.”) [Dkt. No. 125]; and defendants’ reply (“Mot. Strike
Reply”) [Dkt. No. 127].
2
plaintiffs’ lone interrogatory response, moreover, did not address the matters inquired about in
the interrogatory. Id. at 3. The defendants promptly sent a letter to plaintiffs’ counsel detailing
the deficiencies in the plaintiffs’ responses, and offering the plaintiffs additional time to
supplement them. That time came and went without the plaintiffs furnishing the requested
materials or responding to the defendants’ attempts to confer telephonically with their counsel
about the matter. Id. at 4-5; see id., Exhs. 1-8.
Having received nothing from the plaintiffs, and being unwilling to allow more
time for compliance in view of the plaintiffs’ non-responsiveness, the defendants filed an
expedited request for a teleconference to discuss the impasse. See Docket No. 58. This case
subsequently was referred to Magistrate Judge John Facciola for the management of discovery.
See Referral Order (Oct. 11, 2006). After receiving submissions from the parties and conducting
proceedings in early December of 2006, Magistrate Judge Facciola issued an Order on December
22, 2006, directing plaintiffs’ counsel, by January 5, 2007, to supplement the deficient
interrogatory responses and to correlate each document that had been provided in response to the
defendants’ production requests with the appropriate request. Order ¶¶ 3-4, 7 (Dec. 22, 2006).
The January 5 deadline passed, once again, with nothing forthcoming from the
plaintiffs. After an additional week went by with still no word from the plaintiffs, the defendants
filed a motion for sanctions. See Docket No. 63. Plaintiffs’ counsel obtained two extensions of
time in which to respond to this motion. See Minute Order (Jan. 23, 2007); Minute Order (Feb.
2, 2007). Counsel then sought a third extension, which — for the first time — also requested an
extension of time in which to supply the plaintiffs’ still-outstanding discovery responses. See
Docket No. 68. Magistrate Judge Facciola granted this motion and set February 23, 2007, as the
3
deadline for delivery of the plaintiffs’ supplemental discovery responses. See Minute Order
(Feb. 16, 2007).
Late in the day on February 22, 2007, plaintiffs’ attorney, Mr. Myart, attempted
but failed to ship the outstanding discovery materials to the defendants via overnight shipping.
Although Mr. Myart faxed the plaintiffs’ supplemental interrogatory responses to the defendants
on that date, the remainder of the discovery materials was not shipped until February 23.
Because these materials would not reach the defendants by the court-ordered deadline — that
same day — Mr. Myart filed an “emergency motion” to further enlarge the time in which to
deliver discovery to the defendants. See Docket No. 69. The materials ultimately arrived on
February 26, and on February 27 the Magistrate Judge issued a Minute Order granting the
plaintiffs’ emergency motion nunc pro tunc. A separate Minute Order issued that same day
observed that the plaintiffs now appeared to have complied with the Court’s discovery deadlines.
Minute Order (Feb. 27, 2007).
Briefing continued on the defendants’ motion for sanctions, however, and in a
September 2007 opinion Magistrate Judge Facciola vacated his extension of the January 5, 2007
deadline by which the plaintiffs were supposed to have supplied their supplemental discovery
materials. Judge Facciola explained that because the plaintiffs did not request an extension until
after the deadline had already passed, under the Federal Rules of Civil Procedure their request
“had to be accompanied by a motion establishing that the failure to act in accordance with the
deadlines was ‘the result of excusable neglect.’” Memorandum Opinion at 3 (Sept. 11, 2007)
(quoting Fed. R. Civ. P. 6(b)). The Magistrate Judge ruled that for the plaintiffs to be considered
in compliance with the December 2006 discovery order, they would need to submit a motion for
4
leave to file that established “excusable neglect” for the missed deadline. Id. at 4. The plaintiffs
were given a deadline of October 1, 2007, for any such motion. In the meantime, Judge Facciola
denied without prejudice the defendants’ motion for sanctions. Id.At this point in the case, a series of extensions and stays ensued, driven at first by
motions for continuances filed by Mr. Myart in which he claimed that medical incapacitation
temporarily prevented him from continuing with the case. See, e.g., Docket Nos. 78, 87.
Magistrate Judge Facciola ultimately extended the deadline for the plaintiffs’ motion for leave to
file until early December 2007. See Minute Order (Nov. 13, 2007). The plaintiffs through
counsel sought to extend this new deadline, again based on considerations relating solely to Mr.
Myart. See Docket No. 95. By the time of this request, however, Mr. Myart’s application to
renew his membership in the bar of this Court had been denied.3 The Magistrate Judge therefore
extended the deadline for the plaintiffs’ motion to February 22, 2008, “so as to provide plaintiffs
3
In October 2007, in another case against the Agriculture Department brought by
Mr. Myart on behalf of a client, Judge Kollar-Kotelly noted Mr. Myart’s misrepresentations to
the Court, the judicial inquiries concerning him in his home state of Texas, the denial of his
petition to proceed pro hac vice in Nevada, and his indictment for perjury in Texas. See
Williams v. Johanns, 518 F. Supp. 2d 205, 209 & n.3 (D.D.C. 2007). She noted that these
matters “raise a question as to whether he should be permitted to continue practicing as a
member of this Court.” See id. at n.3. On January 2, 2008, Judge Kollar-Kotelly held Mr. Myart
in civil contempt of this Court for violating Magistrate Judge Facciola’s confidentiality order in
the Williams case. See Williams v. Johanns, 529 F. Supp. 2d 22, 23-24 (D.D.C. 2008); Order,
Williams v. Johanns, Civil Action No. 03-2245 (Jan. 2, 2008) [Dkt. No. 197]. She entered a
separate order that same day prohibiting Mr. Myart from submitting any additional filings in the
Williams case because the Attorney Admissions Review Committee of this Court had rejected
Mr. Myart’s application to renew his membership in the bar of this Court and because Mr. Myart
had been provisionally removed from the list of members in good standing. See Order, Williams
v. Johanns, Civil Action No. 03-2245 (Jan. 2, 2008) [Dkt. No. 196]. Furthermore, even before
Judge Kollar-Kotelly’s decisions, the undersigned had found it necessary to order stricken from
the record filings submitted by Mr. Myart because they were scandalous and derogatory. See
Hildebrandt v. Veneman, 233 F.R.D. 183, 184 (D.D.C. 2005); Pigford v. Veneman, 225 F.R.D.
54, 58 (D.D.C. 2005).
5
with an opportunity to obtain new counsel[.]” Memorandum Order at 2 (Jan. 11, 2008). The
plaintiffs were advised that their failure to comply with this deadline might result in the dismissal
of their case. Id. At the Court’s direction, a copy of this Memorandum Order was mailed
directly to the plaintiffs.
The plaintiffs then wrote to the Magistrate Judge and described the problems they
had experienced with Mr. Myart, including his inattention to their case and his lack of
communication with them. See Docket No. 102. In light of their difficulties securing
replacement counsel, the Magistrate Judge extended the deadline for their motion three times.
See Minute Order (Feb. 21, 2008); Minute Order (Mar. 28, 2008); Minute Order (May 12, 2008).
The plaintiffs subsequently found replacement counsel, who obtained an extension of the
deadline until June 30, 2008. See Docket Nos. 108, 109; Minute Order (May 28, 2008). What
the plaintiffs ultimately submitted on that day, however, through their new counsel, was not a
motion establishing excusable neglect under Rule 6(b) for the failure to timely comply with the
December 2006 discovery order. Rather, the document was an opposition to the defendants’
motion for dismissal or other sanctions, which the Magistrate Judge already had denied without
prejudice while awaiting the plaintiffs’ excusable neglect motion. See Plaintiffs’ Opposition to
Defendants’ Motion for Dismissal or Other Sanctions (Jun. 30, 2008) [Dkt. No. 111]. Although
this opposition memorandum argued as a general matter that the plaintiffs should not be held
accountable for the misdeeds of Mr. Myart, see id., the Magistrate Judge observed: “At no point
do the plaintiffs reference Rule 6(b), excusable neglect, or in any other way comply with the
Court’s specific instructions.” Memorandum Order at 2 (Sept. 24, 2008). The Magistrate Judge
therefore held that the plaintiffs had failed to comply with the December 2006 discovery order,
6
and granted the defendants leave to re-file their motion for sanctions. Id. at 3. The defendants
subsequently renewed their motion, and the plaintiffs filed an opposition through counsel, to
which the defendants replied.
II. DISCUSSION
A. Motion to Strike
The defendants have filed a motion to strike the plaintiffs’ notice of filing, to
which the plaintiffs attached a copy of their untimely delivered second interrogatory responses.
The plaintiffs filed this notice three days after their memorandum opposing the defendants’
motion for sanctions, stating that its purpose was to “inform” the Court of the attached
interrogatory responses “in view of certain of Defendants’ statements” in their motion for
sanctions, eleven of which statements the plaintiffs quoted in their notice. The plaintiffs
suggested that review of the second interrogatory responses “should give the Court some pause
before the Court credits” the eleven quoted statements made by the defendants in support of their
sanctions motion. Notice of Filing at 1, 3. The defendants argue that this notice should be
stricken from the record because it violates Local Civil Rule 5.2(a) of this Court and because no
rule authorizes its filing. Mot. Strike at 1.
Local Civil Rule 5.2(a) states that interrogatories and other discovery materials
“shall be served upon other counsel and parties but shall not be filed with the Clerk until they are
used in the proceeding or upon order of the Court[.]” The clear purpose of this rule is to prevent
discovery materials from being filed with the Court as a matter of course before parties wish to
use specific materials in the proceeding. The plaintiffs obviously are attempting to “use” the
7
second interrogatory responses “in the proceeding” — specifically in order to defeat the
defendants’ motion for sanctions by undercutting several of the claims made in that motion about
the plaintiffs’ compliance with discovery obligations. Whether or not these interrogatory
responses actually prove what the plaintiffs believe that they prove, filing them for this purpose
does not violate Rule 5.2(a).
The defendants are correct that no rule expressly authorizes the filing of the
interrogatory responses in a stand-alone notice, as the plaintiffs have done. The responses should
have been attached as an exhibit to the plaintiffs’ memorandum opposing the defendants’
sanctions motion. The responses were filed through the notice only three days later, however,
and the defendants have not shown that the error prejudiced them in any way. Rule 5.2(b)
provides: “Discovery materials may be used and filed as exhibits or evidence in support of any
motion or at a trial or evidentiary hearing in accordance with the Federal Rule of Evidence.” The
defendants maintain that the plaintiffs’ notice is not authorized by this rule because the notice
makes “no reference to any motion.” Mot. Strike Reply at 1. To the contrary, the notice clearly
references the defendants’ motion for sanctions and is intended to support plaintiffs’ opposition
to that motion. Under the defendants’ parsimonious reading of Rule 5.2(b), discovery materials
may be filed “in support of any motion” but not in opposition to any motion, even though such
materials can be used freely by either party “at a trial or evidentiary hearing”. One party
therefore could file discovery materials in support of a motion — as the defendants have done in
support of their sanctions motion, see Docket Nos. 122-1, 122-2 — but the other party could not
file different discovery materials in opposing the motion. That reading of the Rule is untenable.
The defendants’ motion to strike will be denied.
8
B. Motion for Sanctions
1. Dismissal
The defendants have moved for dismissal or, in the alternative, for lesser
sanctions, based on the plaintiffs’ failure to obey the December 22, 2006 discovery order. Mot.
Sanctions at 1. The Magistrate Judge has ruled that the plaintiffs failed to comply with that
Order. Memorandum Order at 2 (Sept. 24, 2008). Because sanctions may be imposed for failure
to obey a discovery order, Fed. R. Civ. P. 37(b)(2)(A), the issue is whether and what sanctions
should be applied.
Courts may impose a range of sanctions, including dismissal, where a party fails
to comply with a discovery order. See Fed. R. Civ. P. 37(b)(2)(A), 41(b). But “the central
requirement” of a Rule 37 sanction is that it be “just.” Arias v. Dyncorp Aero. Operations, LLC,
677 F. Supp. 2d 330, 332 (D.D.C. 2010) (citing Bonds v. District of Columbia, 93 F.3d 801, 808
(D.C. Cir. 1996)). Our circuit has provided guidance on determining when the extreme sanction
of dismissal is justified. See Webb v. Dist. of Columbia, 146 F.3d 964, 971 (D.C. Cir. 1998).
Under Webb, dismissal is warranted when (1) the other party has been “so prejudiced by the
misconduct that it would be unfair to require [the party] to proceed further in the case,” (2) the
party’s misconduct has put “an intolerable burden” on the court by requiring the court to modify
its own docket and operations in order to accommodate the delay, or (3) the court finds it
necessary “to sanction conduct that is disrespectful to the court and to deter similar misconduct in
the future.” Id. at 971; see Young v. Office of U.S. Senate Sergeant at Arms, 217 F.R.D. 61,
65-66 (D.D.C. 2003). These guidelines apply not only to dismissal but to any other “severe”
9
sanction, which means a sanction that is “litigation-ending” because it denies a party the right to
a trial on the merits. Bonds v. District of Columbia, 93 F.3d at 808-09; see Klayman v. Judicial
Watch, Inc., 802 F. Supp. 2d 137, 151 (D.D.C. 2011) (characterizing as a “severe sanction” a
proposed order that “will effectively prevent [the plaintiff] from carrying his burden of proof on
his claims, thereby almost certainly requiring dismissal”). Before imposing a severe sanction, “a
district court must ‘consider whether lesser sanctions would be more appropriate for the
particular violation’ because the judicial system favors disposition of cases on the merits.”
Moore v. Napolitano, 723 F. Supp. 2d 167, 179 (D.D.C. 2010) (quoting Bonds v. District of
Columbia, 93 F.3d at 808). “‘[D]ismissal is a sanction of last resort to be applied only after less
dire alternatives have been explored without success’ or would obviously prove futile.” Bonds v.
District of Columbia, 93 F.3d at 808 (quoting Shea v. Donohoe Constr. Co., 795 F.2d 1071, 1075
(D.C. Cir. 1986)).4
a. Prejudice to Defendants
In determining whether a party’s misconduct prejudices the other party so severely
as to make it unfair to require the other party to proceed with the case, courts look to whether the
aggrieved party has cited specific facts demonstrating actual prejudice, such as the loss of key
witnesses. Shea v. Donohoe Constr. Co., 795 F.2d at 1074; see id. at 1075 (noting that dismissal
has been upheld where “the errant behavior has caused the other party severe prejudice in his
4
The defendants argue that dismissal also is warranted under Rule 41(b) for failure
to prosecute, because the plaintiffs have not sought any discovery, without which they cannot
prevail on their claims. Mem. at 14-16. The same factors are relevant to determining whether
dismissal is appropriate for failure to prosecute and failure to obey a discovery order. Compare
Webb v. District of Columbia, 146 F.3d at 971, with Allen v. United States, 277 F.R.D. 221, 223
(D.D.C. 2011).
10
ability to present his case”). Even where a factual showing of actual prejudice has not been
made, prejudice may be presumed where there has been “unreasonable delay.” Id. (citing Lyell
Theatre Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir. 1982)).
The defendants maintain that they have experienced severe prejudice resulting
from the plaintiffs’ noncompliance with their discovery obligations because the defendants are
unable to proceed with discovery, formulate an effective defense, move for summary judgment
(if warranted), or prepare for trial. Mem. at 12. The defendants also aver that the plaintiffs’
conduct has forced them to waste time and money. Id. While these are legitimate grievances,
they do not demonstrate that the plaintiffs’ behavior has prejudiced the defendants’ ability to
present their case, Shea v. Donohoe Constr. Co., 795 F.2d at 1075, but merely that the defendants
have been unable to move forward toward dispositive briefing or trial because of the plaintiffs’
delay. This, however, will happen nearly every time that a plaintiff’s violation of a court order
delays proceedings during the discovery phase. Such contentions do not speak to actual
prejudice. In any event, the contentions made here are not the kind of specific, factually
supported allegations required to find such prejudice. Cf. Dubicz v. Commonwealth Edison Co.,
377 F.3d 787, 792-93 (7th Cir. 2004) (declining to find prejudice, in context of motion for leave
to amend complaint, where defendant’s “case for prejudice is stated . . . only in the most
conclusory of terms” and no “particular witnesses or documents are identified”). Moreover, “the
fact that the other party has incurred costs due to the malfeasance will not ordinarily be enough to
warrant dismissal[.]” Shea v. Donohoe Constr. Co., 795 F.2d at 1075. Actual prejudice to the
defendants’ case has not been demonstrated.
11
Dismissal is also justified where “unreasonable delay” by the plaintiffs warrants a
presumption of prejudice. Shea v. Donohoe Constr. Co., 795 F.2d at 1075. While the plaintiffs
in this case have caused a great deal of delay, some of it resulted from legitimately obtained
extensions of time in which to comply with deadlines. But the root cause of most of the delay
was the atrocious behavior of Mr. Myart, who no longer represents the plaintiffs and has been
barred from practicing in this Court. See supra at 5, n.3. It was Mr. Myart whose unprofessional
flouting of his obligations as counsel originally led the Court to establish the discovery deadline
set forth in the December 2006 Order. And it was Mr. Myart who then ignored that deadline,
obligating the plaintiffs to somehow establish “excusable neglect” under Rule 6(b) for his
conduct. Because Mr. Myart, the true transgressor, is no longer involved in this case, the Court is
not persuaded that “less dire alternatives” to dismissal would “obviously prove futile” as a
sanction for the plaintiffs’ noncompliance with the discovery order. Bonds v. District of
Columbia, 93 F.3d at 808.
b. Prejudice to the Judicial System
Severe sanctions, including dismissal, may be warranted where a party’s
misconduct places “an intolerable burden on a district court by requiring the court to modify its
own docket and operations in order to accommodate the delay.” Webb v. Dist. of Columbia, 146
F.3d at 971 (quoting Shea v. Donohoe Constr. Co., 795 F.2d at 1075). Dismissal may be an
appropriate exercise of discretion “[w]here the delay or misconduct would require the court to
expend considerable judicial resources in the future in addition to those it has already wasted,
thereby inconveniencing many other innocent litigants in the presentation of their cases.” Shea
12
v. Donohoe Const. Co., 795 F.2d at 1075-76 (emphasis in original). District courts have
substantial discretion in determining whether it would be overly burdensome to take remedial
action less drastic than outright dismissal. Id. at 1076.
While the fallout from the plaintiffs’ violation of the December 2006 discovery
order has necessitated a significant expenditure of judicial resources, the Court does not find
such grave prejudice to the judicial system as a result of the violation as to warrant dismissal.
And as noted above, the Court presently is not convinced that less dire sanctions would be futile.
The Court therefore will not dismiss the plaintiffs’ case based on prejudice to the judicial system.
c. Deterrence
The Court’s legitimate interest in imposing a sanction is “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.” DL v. Dist. of Columbia, 274
F.R.D. 320, 325 (D.D.C. 2011) (quoting Bonds v. District of Columbia, 93 F.3d at 808).
Sanctions based on principles of deterrence, however, “call for careful evaluation to ensure that
the proper individuals are being sanctioned (or deterred) and that the sanctions or deterrent
measures are not overly harsh.” Bonds v. Dist. of Columbia, 93 F.3d at 808 (quoting Shea v.
Donohoe Constr. Co., 795 F.2d at 1077). A discovery sanction imposed for its deterrent effect
“must be calibrated to the gravity of the misconduct,” and courts should avoid “‘pointless
exaction[s] of retribution[.]’” Id. (quoting Jackson v. Washington Monthly Co., 569 F.2d 119,
123 (D.C. Cir. 1977)). “The choice of sanction should be guided by the concept of
13
proportionality between offense and sanction.” DL v. Dist. of Columbia, 274 F.R.D. at 325
(quoting Bonds v. District of Columbia, 93 F.3d at 808).
Where attorney misconduct is involved, as it is here, our circuit “has been notably
reluctant to affirm dismissal under the punishment or deterrence rationale unless the client
himself is shown to deserve the sanction.” Shea v. Donohoe Const. Co., 795 F.2d at 1077.
“When the client’s only fault is his poor choice of counsel, dismissal of the action has been
deemed a disproportionate sanction,” and the district court “should first attempt to sanction the
attorney at fault.” Id. (citing Jackson v. Washington Monthly Co., 569 F.2d at 123 & n.24, and
Butler v. Pearson, 636 F.2d 526, 531 (D.C. Cir. 1980)). “Public confidence in the legal system is
not enhanced when one component punishes blameless litigants for the misdoings of another
component of the system.” Jackson v. Washington Monthly Co., 569 F.2d at 123.
Furthermore, dismissal is appropriate as a deterrent measure only when the client
is aware of the attorney’s misconduct. B.R. ex rel. Rempson v. Dist. of Columbia, 262 F.R.D.
11, 15 (D.D.C. 2009) (citing Shea v. Donohoe Const. Co., 795 F.2d at 1077-78). “Concerned
that a client might be unaware of the attorney’s misconduct, this circuit requires a district court to
notify the client before dismissing a case pursuant to the deterrence rationale.” Id.; accord
Capital Yacht Club v. Vessel Aviva, 646 F. Supp. 2d 156, 157 (D.D.C. 2009); see Shea v.
Donohoe Const. Co., 795 F.2d at 1078 (“We look disfavorably upon dismissals as sanctions for
attorney misconduct or delay unless the client himself has been made aware of the problem,
usually through notice from the trial court. We advise strongly the district courts themselves
directly notify the client when attorney misconduct has occurred to a degree that the court is
contemplating dismissal if a recurrence occurs.”) (emphasis in original). Only if a client, after
14
receiving such notification, does not seek new counsel and the errant conduct of the attorney
continues are severe sanctions warranted. Shea v. Donohoe Constr. Co., 795 F.2d at 1077-78.5
Here, the plaintiffs were not individually warned that Mr. Myart’s failure to meet
the January 5, 2007 discovery deadline might lead to dismissal. It is not clear that the plaintiffs
had any knowledge of Mr. Myart’s misconduct until they received a copy of the Magistrate
Judge’s January 2008 Order, which stated that Mr. Myart was no longer a member in good
standing of the Court. To the contrary, the plaintiffs informed the Magistrate Judge in February
2008 that they “did not know that Mr. Myart was not doing the things that he was suppose[d] to
be doing for our case. After receiving the letter from the court we were really upset because he
assured [us] that our case was doing fine, when really it was not.” Plaintiffs’ Pro Se Notice at 2
(Feb. 14, 2008) [Dkt. No. 102]. In this same notice, the plaintiffs also state:
Ever since Mr. Myart has been our attorney we have had trouble
trying to contact him to find out how our case was going. We have
called him repeatedly, and have even left messages on his phone. He
would only return our calls every once in a while. We asked Mr.
Myart to send us the paperwork that he filed on our behalf and we
never received any of the paperwork that he said he filed. When he
did call, sometimes it would be six months in between phone calls,
telling us not to worry about our case because it was going great.
Once after leaving many messages he called and left a message on our
answering machine stating that “we did not have to call him and
check up on our case, you do your farm work and he will do his
attorney work.”
Id. at 1-2.
5
The defendants’ reliance on Link v. Wabash R.R., 370 U.S. 626, 633-34 (1962),
and Pigford v. Veneman, 292 F.3d 918, 925-27 (D.C. Cir. 2002), for the proposition that
dismissal can be an appropriate sanction for the misconduct of an attorney, is misplaced in light
of the more specific guidance that our circuit has provided about when dismissal, as opposed to a
lesser sanction, should be imposed for failure to obey a court order.
15
While the defendants maintain that the plaintiffs share culpability because they
“signed interrogatory responses which stated ‘not applicable’ to fifty-six of fifty-eight discovery
requests,” Mem. at 14, their signing of such responses does not warrant dismissing the plaintiffs’
case. The defendants here are referring to the plaintiffs’ first set of discovery responses, and it is
the failure by Mr. Myart to supplement those responses that is the basis for the defendants’
motion. The Court cannot justify dismissing the case based on misconduct by Mr. Myart about
which the plaintiffs did not know and were not individually warned by the Court, as required
under Shea v. Donohoe Const. Co..6
Neither Nat’l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639 (1976),
nor Capitol Chem. Indus., Inc. v. Cmty. Mgmt. Corp., 887 F.2d 332 (D.C. Cir. 1989) (per
curiam) (unpublished) — both cited by the defendants — persuade the Court otherwise. In Nat’l
Hockey League, the plaintiffs failed to comply with an order after seventeen months of delay and
“several admonitions by the Court,” including warnings to the plaintiffs “that their failure to
provide certain information could result in the imposition of sanctions.” Nat’l Hockey League v.
Metro. Hockey Club, Inc., 427 U.S. at 640-41. In Capitol Chem. Indus., Inc., the plaintiffs
completely failed to respond to interrogatories or seek any extensions, “totally disregard[ing]
successive court orders instructing responses to [the defendant’s] discovery requests.” Capitol
Chem. Indus., Inc. v. Cmty. Mgmt. Corp., 887 F.2d at *2. And in these opinions, the Supreme
6
The plaintiffs were individually warned, after Mr. Myart’s exit from the case, that
they needed to file a motion establishing excusable neglect for missing the discovery deadline,
and that failure to do so might result in dismissal of their case. Memorandum Order at 2 (Jan.
11, 2008). As explained above, the plaintiffs did not ignore this order, but the document
submitted by their new counsel failed to adequately address the issues or make the necessary
showing of excusable neglect.
16
Court and the D.C. Circuit merely concluded that the district court did not abuse its discretion by
dismissing the case under the circumstances presented — not that dismissal is mandatory in
similar circumstances. Id.; Nat’l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. at 642.
While deterrence of conduct such as that engaged in by Mr. Myart is important, the Court does
not find dismissal an equitable means of achieving that deterrence, without significant culpability
by the plaintiffs themselves.
2. Other Sanctions
Having concluded that the severe sanction of dismissal is not warranted, the Court
now considers whether any of the lesser sanctions suggested by the defendants are appropriate.
The defendants have requested that, as an alternative to dismissal, the Court
(1) compel responses to certain outstanding interrogatories; (2) preclude the plaintiffs from
seeking from defendants or otherwise offering any evidence regarding similarly situated white
farmers who applied for loans from the USDA; (3) “deem as an established fact that Plaintiffs
never sought to administratively appeal or otherwise challenge Defendants’ alleged failures to
given them loan applications and Defendants’ 2005 letter allegedly informing Plaintiffs that they
were no longer eligible to seek loans because they were Pigford complainants”; (4) preclude the
plaintiffs from “offering any evidence of monetary injuries resulting from their ECOA claims,”
from “asserting any injuries other than what they have included in response to Interrogatory
No. 14,” and compelling them to “provide a full and complete response to Interrogatory No. 14
with respect to the injuries that they have listed”; (5) preclude the plaintiffs from “offering any
evidence of consultation with a health care provider other than the doctor identified in response
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to Request for Production No. 13”; (6) preclude the plaintiffs from “calling any fact witnesses,
other than themselves, or any expert witnesses other than Dr. Waymon Hinson”; (7) preclude the
plaintiffs from offering in evidence any documents other than those they have produced thus far
in response to the defendants’ requests for production; (8) compel the plaintiffs to correlate their
interrogatory responses with the interrogatories to which they are responsive; (9) preclude any
discovery requests by the plaintiffs; and (10) compel plaintiffs’ counsel to sign the discovery
responses in accordance with Rule 26(g)(2) of the Federal Rules of Civil Procedure. Mem. at
17-18.
Because the Court has concluded that dismissal is not justified, any alternative
sanctions ordered in lieu of dismissal must not effectively amount to a default judgment. See
Bonds v. District of Columbia, 93 F.3d at 808-09; Klayman v. Judicial Watch, Inc., 802 F. Supp.
2d at 151; Moore v. Napolitano, 723 F. Supp. 2d at 179. The defendants’ second, third, sixth,
and ninth requests would have precisely that impact. As the defendants themselves recognize,
imposing these sanctions would effectively prevent the plaintiffs from prevailing on their ECOA
claims or proving damages. See Mem. at 15 (“Instrumental to prevailing on their claims of racial
discrimination in violation of ECOA is a showing that Plaintiffs were treated less favorably than
similarly situated white farmers seeking loans from defendants.”). The Court therefore will not
grant the defendants’ request for these sanctions.
The Court also does not deem it appropriate to grant the defendants’ fourth, fifth,
or seventh requests, which collectively seek to preclude the plaintiffs from offering in evidence
any documents other than those they have produced thus far in discovery. The discovery
responses to which the defendants here seek to limit the plaintiffs were made while the plaintiffs
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were still being represented by Mr. Myart. Just as the Court does not find dismissal of the
plaintiffs’ case a proportionate sanction for Mr. Myart’s misconduct, it does not find it equitable
to inexorably bind the plaintiffs to responses supplied in their first set of discovery responses,
which were prepared under the auspices of Mr. Myart.
This leaves the defendants’ first, eighth, and tenth requests, all of which seek to
compel the plaintiffs to adequately and properly respond to the defendants’ interrogatories and
production requests. The Court agrees that if the plaintiffs wish to proceed with this case they
must forthwith comply with all outstanding discovery obligations. But the Court will leave it to
Magistrate Judge Facciola, to whom pretrial matters have been referred and who has examined
the plaintiffs’ discovery responses, to determine which of the plaintiffs’ discovery obligations are
still outstanding and to issue appropriate orders.
Finally, apart from the proposed sanctions described above, the defendants request
an award of attorneys’ fees and expenses associated with the filing of their motion for sanctions.
Where a party has failed to comply with an order, regardless of whether other sanctions have
been imposed, “the court must order the disobedient party, the attorney advising that party, or
both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the
failure was substantially justified or other circumstances make an award of expenses unjust.”
Fed. R. Civ. P. 37(b)(2)(C). In the circumstances of this case, imposing a monetary penalty on
these plaintiffs for the misdeeds of their attorney would be unjust. Monetary sanctions against
Mr. Myart, on the other hand, are firmly justified by the cost, inconvenience, and difficulty that
his professional misconduct has imposed on the defendants, the Court, and his own former
clients. See Shea v. Donohoe Constr. Co., 795 F.2d at 1075 (noting that “the court may order the
guilty counsel to pay a designated amount to the other party to cover his costs and
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inconvenience” and that the costs incurred by the defendant “can be adequately compensated by
requiring Shea’s attorneys to pay those fees, or any other amount that the District Court
determines to be just compensation”). Whether the defendants wish to pursue Mr. Myart for
attorneys’ fees and expenses is a matter the defendants will have to determine. If they decide to
do so, they may file a separate fees petition with supporting documentation and affidavits.
III. CONCLUSION
For the reasons explained above, the Court has concluded that an order that the
plaintiffs comply with all outstanding discovery obligations is the appropriate sanction for the
plaintiffs’ violation of the Court’s discovery order. The defendants may also pursue monetary
sanctions against Mr. Myart if they wish to undertake that effort.
That having been said, the Court needs to be assured that the plaintiffs are still
able and willing to prosecute the action. After Mr. Myart’s departure from the case, the plaintiffs
initially had difficulty securing replacement counsel and proved unable, even with new counsel,
to submit the type of motion they were directed by the Magistrate Judge to file, establishing
excusable neglect for their discovery noncompliance. In view of these considerations, the Court
will direct the plaintiffs to notify the Court in writing of their willingness and ability to prosecute
this action, including their ability to comply with discovery obligations and other requirements of
the litigation process. The plaintiffs also are cautioned that in view of the considerable time and
expense already incurred by the defendants, all future litigation deadlines will be strictly
enforced.
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An Order consistent with this Opinion shall issue this same day.
SO ORDERED.
/s/
PAUL L. FRIEDMAN
DATE: November 6, 2012 United States District Judge
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