John E. Tuchschmidt v. Outdoor Writers

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 99-1791
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John E. Tuchschmidt, *
*
Appellant, *
*
v. *
*
Outdoor Writers Association of *
America, Incorporated, a Maryland not *
for profit corporation; Christopher *
Batin, individually; James A. Casada, *
(Jim), individually; Timothy Christie, *
individually; Judson Cooney, *
individually; Betty Lou Fegely, * Appeal from the United States
individually; Curtis Garfield, * District Court for the
individually; Stephen A. Griffin, * Eastern District of Missouri
individually; Robert Keck, (Rob), *
individually; Carol J. Kersavage, * [UNPUBLISHED]
individually; Mark Labarbera, *
individually; Michael Levy, *
individually, John Lorenz, (Jack), *
individually; Laury Marshall, *
individually; John J. McCoy, Jr., *
individually; Kristin Merriman-Clarke, *
individually; William Monroe, *
individually; Richard Patterson, *
individually; James W. Rainey, *
individually; Glen Sapir, individually; *
Clifford Shelby, (Cliff), *
individually; Daniel Small, (Dan), *
individually; Robert C. Smith, *
Esquire, individually; Vincent T. *
Sparano, (Vin), individually; Thomas *
Stienstra, individually; Kris W. *
Thoemke, individually; Spencer E. *
Turner, individually; Thomas Ulrich, *
individually; H. Theodore Upgren, Jr.; *
Thomas M. Wharton, (Tom), *
individually; Patrick Wray, (Pat), *
individually, *
*
Appellees.
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Submitted: September 28, 2000
Filed: October 12, 2000
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Before McMILLIAN, BOWMAN, and MORRIS SHEPPARD ARNOLD, Circuit
Judges.
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PER CURIAM.
John E. Tuchschmidt appeals from the final judgment entered in the District
Court1 for the Eastern District of Missouri, dismissing with prejudice his diversity
action for failure to comply with a case management order (CMO). For reversal,
Tuchschmidt argues that dismissal was inappropriate because he had presented genuine
issues of material fact relating to the claims he had raised in his complaint, particularly
a defamation claim, and that the district court erred in issuing various other orders
throughout the proceeding. For the reasons discussed below, we affirm the judgment
of the district court.
1
The Honorable Stephen N. Limbaugh, United States District Judge for the
Eastern District of Missouri.
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We review Fed. R. Civ. P. 41(b) sua sponte dismissals for abuse of discretion,
see Sterling v. United States, 985 F.2d 411, 412 (8th Cir. 1993) (per curiam), and the
district court’s underlying factual findings for clear error, see Avionic Co. v. General
Dynamics Corp., 957 F.2d 555, 558 (8th Cir. 1992). We find no abuse of discretion
because the record supports the district court’s implicit finding that Tuchschmidt
willfully disobeyed the CMO: he exhibited a pattern of delay throughout the
proceedings; he made no attempt to submit any pretrial materials; instead, the day after
his pretrial compliance was due, he filed a fifteen-page motion and three affidavits
challenging a prior ruling of the court and reasserting the substance of prior
unsuccessful motions; and, contrary to what he had done previously when he could not
meet a filing deadline, he did not request an extension. The district court, moreover,
had repeatedly granted him extensions and shown him leniency, and had twice warned
him that violating court-ordered deadlines could result in sanctions, including dismissal.
See Aziz v. Wright, 34 F.3d 587, 588-89 (8th Cir. 1994), cert. denied, 513 U.S. 1090(1995); First Gen. Resources Co. v. Elton Leather Corp., 958 F.2d 204, 206 (8th Cir.
1992) (per curiam); Lorin Corp. v. Goto & Co., 700 F.2d 1202, 1207-08 (8th Cir.
1983).
Tuchschmidt designated only the dismissal order in his notice of appeal. See
Fed. R. App. P. 3(c)(1)(B). However, because he raises--and defendants address--
arguments related to other orders the district court issued prior to dismissal, he may
have intended to appeal these orders as well. See Hawkins v. City of Farmington, 189
F.3d 695, 704 (8th Cir. 1999) (liberally construing notices of appeal when intent to
appeal is apparent and adverse party is not prejudiced). Assuming such intent on
Tuchschmidt’s part, we have reviewed the record and conclude the district court did
not abuse its discretion in issuing these orders. See Morris v. Dormire, 217 F.3d 556,
558-59 (8th Cir. 2000) (appointment of counsel); Trost v. Trek Bicycle Corp., 162 F.3d
1004, 1009 (8th Cir. 1998) (discovery sanctions); Teamsters Nat’l Freight Indus.
Negotiating Comm. ex rel. Teamster Local Union No. 116 v. MME, Inc., 116 F.3d
1241, 1242 (8th Cir. 1997) (per curiam) (sanctions); Harker v. Commissioner, 82 F.3d
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806, 808 (8th Cir. 1996) (disqualification of defense counsel); Pope v. Federal Express
Corp., 974 F.2d 982, 985 (8th Cir. 1992) (recusal); Williams v. Mensey, 785 F.2d 631,
636-37 (8th Cir. 1986) (production of documents). We also conclude the district court
properly granted summary judgment to defendants on Tuchschmidt’s defamation claim
(arising out of a notice Outdoor Writers Association of America, Inc., published in a
newsletter), because defendants’ unrebutted evidence showed that the published
statements were not false or materially false. See Love v. Commerce Bank, 37 F.3d
1295, 1296 (8th Cir. 1994) (truth is absolute defense to defamation action; applying
Missouri law).
Accordingly, we affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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