P H I Inc v. Office & Professional Employees International Union et al
REPORT AND RECOMMENDATIONS 272 Non-compliance of seventeen individual pilot complainants with this court's discovery orders Objections to R&R due by 6/19/2009. Signed by Magistrate Judge C Michael Hill on 6/2/09. (crt,Roaix, G)
UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF LOUISIANA P H I , INC., ET AL. V ER SU S OFFICE & PROFESSIONAL EMPLOYEES I N T E R N A T I O N A L UNION, ET AL. * C I V I L NO. 06-1469 c/w 06-2243 * J U D G E DOHERTY * M A G I S T R A T E JUDGE HILL
R E P O R T AND RECOMMENDATION The plaintiff, PHI, Inc. ("PHI"), has filed a Notice of Non-Compliance, advising this c o u rt of the non-compliance of seventeen individual pilot complainants with this court's d is c o v e ry orders. [rec. doc. 272]. For those reasons set out below, it is recommended that the c la im s of the following individual pilot complainants be DISMISSED WITHOUT P R E J U D I C E , pursuant to Fed. R. Civ. P. 37(d), 41(b) and 16(f), for failure to comply with th is court's discovery orders: Larry Burgoyne, Michael Butler, Thuong Tran Duc, Daniel G o o d s o n , Joseph Gubler, Frank Haynes, Adam Hite, James Pecnik, Richard Phelps, John R o h n e r, William Rosenbalm, Norman Sherman, Jr., Dennis Smith, David Squires, Michael S tr ic k l in , Jerold Swinderman and Stephen Torres. P R O C E D U R A L BACKGROUND B y the instant Motion, PHI seeks dismissal with prejudice of the claims of seventeen in d iv id u a l pilot claimants, pursuant to Rule 37(d) of the Federal Rules of Civil Procedure, for th e ir repeated failure to comply with this court's discovery orders, despite numerous e x ten sio n s and warnings by the court that failure to comply would result in dismissal of their
c la im s without prejudice. The non-complying pilots are as follows: Larry Burgoyne, Michael B u tle r, Thuong Tran Duc, Daniel Goodson, Joseph Gubler, Frank Haynes, Adam Hite, James P e c n ik , Richard Phelps, John Rohner, William Rosenbalm, Norman Sherman, Jr., Dennis S m ith , David Squires, Michael Stricklin, Jerold Swinderman and Stephen Torres. T h e procedural history of this matter is as follows. On December 4, 2007, the Union filed a Supplemental Verified Complaint adding the individual pilots as claimants in the return to work suit, seeking, among other forms of relief, economic damages. [rec. doc. 160]. Thereafter, PHI propounded its Second Interrogatories and its First Request for Production of D o c u m e n ts on each of the individual pilot claimants on April 30, 2008 and May 1, 2008, re sp e c tiv e ly. None of the responses were received prior to the expiration of the statutory thirty d a y delay for serving responses. On June 16, 2008, after the statutory delay had run, the Union sought and received an e x te n sio n of time to respond to the outstanding discovery requests. Accordingly, responses w e re then due July 2, 2008.1 [rec. docs. 186, 188 and 204]. In granting an extension of time to th e individual pilots, mindful that the discovery deadline of July 17, 2008 was rapidly a p p ro a c h in g , the undersigned expressly advised that no additional extensions of time would be g ra n te d . [rec. doc. 204]. Moreover, because several of the pilots depositions had been set for Ju n e 30, 2008, the undersigned advised that in the event that re-deposition of any pilot would
Prior to the filing of this motion, PHI had agreed to an informal extension of time through June 16, 2008 a n d June 17, 2008, respectively, and that any further informal extensions would be considered by PHI on a case by c a s e basis.
b e c o m e necessary because of the lack of a discovery response prior to deposition, the costs of th e re-deposition plus attorneys fees would be imposed against the Union. [rec. doc. 213, pg. 57 ]. On August 19, 2008, PHI filed a Motion to Compel and for Sanctions because thirty s e v e n individual pilot claimants had failed to respond to the outstanding discovery requests as o rd e re d by this court. Accordingly, PHI sought dismissal with prejudice of the claims asserted b y those claimants.2 During the Rule 37.1W required conference between counsel, the Union's c o u n se l advised counsel for PHI that despite repeated requests and urging, responses had not b e e n received from the individual pilots. The Union's counsel further advised that one last a ttem p t to get the pilots' individual discovery responses would be attempted. [rec. doc. 247]. A hearing on PHI's Motion to Compel and for Sanctions was held on August 26, 2008. The court granted the Motion to Compel and again ordered the non-compliant individual pilot c la im a n ts to fully respond to the outstanding discovery requests within seven days. The in d iv id u a l pilot claimants were expressly warned that their failure to fully respond would result in a recommendation by the undersigned to dismiss their claims without prejudice. [rec. doc. 2 5 5 ]. During this conference, counsel for the Union acknowledged that the outstanding discovery responses had not been submitted to PHI because the individual pilots had not re sp o n d e d to counsel's repeated requests for the information necessary to formulate an a d e q u ate response.
Prior to the filing of the Motion, counsel for PHI had attempted resolve this dispute informally, granting an i n f o r m a l extension of time initially through July 28, 2008 and thereafter, through August 15, 2008.
T h is court's deadline for discovery responses expired, without any discovery responses f ro m seventeen of the non-compliant individual pilot claimants having been submitted. Accordingly, on September 15, 2008, PHI filed the instant Notice of Non-Compliance, seeking is s u a n c e of a Report and Recommendation, recommending dismissal of the claims of these s e v e n te e n individual pilot claimants. Counsel for PHI has certified in his Motion that counsel f o r the Union concurs that the seventeen pilots named in PHI's Motion, all of whom remain as c o m p la in a n ts , did not respond to PHI's discovery on or before this court's deadline to do so.3 [ re c . doc. 272]. The discovery deadline has long since passed and this matter is set for trial beginning on J u n e 29, 2009. L A W AND ANALYSIS In light of the above, it is clear that the seventeen individual pilot claimants have rep ea tedly failed to comply with Orders of this court by failing to submit responses to PHI's d isc o v e ry, despite two extensions granted by this court, as originally ordered on or before July 2 , 2008, and as thereafter mandated, on or before September 5, 2008. [rec. docs. 204 and 255]. A court may sanction a party who refuses to obey a discovery order under Rule 3 7 (d )(1 )(A )(ii).4 Those sanctions include dismissal of an action. Rule 37(d)(3), FRCP citing
Several of the other non-compliant pilot claimants have sought, and obtained, dismissal of their claims. A c c o r d i n g l y , only seventeen remain before this court.
R u l e 37(d)(1)(A)(ii) provides in pertinent part as follows: ( d ) Party's Failure to Attend Its Own Deposition, Serve Answers to I n te r r o g a t o r ie s , or Respond to a Request for Inspection.
R u le 37(b)(2)(A)(i)-(vi), FRCP. Dismissal is authorized when the failure to comply with the c o u rt's order results from wilfulness or bad faith, accompanied by a clear record of delay or c o n tu m a c io u s conduct, and not from the inability to comply. Batson v. Neal Spence Associates, In c ., 765 F.2d 511, 514 (5 th Cir. 1985) citing National Hockey League v. Metro Hockey Club, In c ., 427 U.S. 639, 640, 96 S.Ct. 2778, 2779 (1976) and Marshall v. Segona, 621 F.2d 763, 767 n . 8 (5th Cir.1980); Coane v. Ferrara Pan Candy Co., 898 F.2d 1030, 1032 (5 th Cir. 1990). S tate d differently, dismissal is appropriate where a party's "failure to comply with d is c o v e ry has involved either repeated refusals or an indication of full understanding of d is c o v e ry obligations coupled with a bad faith refusal to comply." Griffin v. ALCOA, 564 F.2d 1 1 7 1 , 1172 (55h Cir. 1977). Moreover, dismissal is proper in situations where the deterrent v a lu e of Rule 37 cannot be substantially achieved by the use of less drastic sanctions. Batson, 765 F.2d at 514 citing Marshall, 621 F.2d at 768. Additionally, the misconduct must su b sta n tially prejudice the other party's preparation for trial. Id,; Coane, 898 F.2d at 1032. Finally, dismissal is inappropriate when neglect is plainly attributable to the attorney rather th an the client, or when a party's simple negligence is grounded in confusion or sincere
(1) In General. (A) M o t i o n ; Grounds for Sanctions. The court where the action is pending may, o n motion, order sanctions if: ... (ii) a party, after being properly served with interrogatories under Rule 33 or a r e q u e st for inspection under Rule 34, fails to serve its answers, objections, or w r i t t e n response.
m is u n d e rs ta n d in g of the court's orders. Batson, 765 F.2d at 514 citing Marshall, 621 F.2d at 7 6 8 and Silas v. Sears, Roebuck & Co., 586 F.2d 382, 385 (5th Cir.1978). A court may also sanction a party who fails to comply with a court order under Rule 4 1 (b ) and 16(f), FRCP. All parties have the responsibility to comply with orders of the court. Failure to do so shall be considered cause for sanctions. These sanctions are both necessary a n d warranted to control this court's docket and maintain the orderly administration of justice a n d may include including dismissal of the action. See F.R.C.P. 16(f)5 ; See also F.R.C.P. 4 1 (b )6 ; Link v. Wabash Railroad Company, 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962) (re c o g n iz in g the inherent authority of a federal trial court to dismiss a plaintiff's action for f a ilu re to prosecute in order to prevent undue delays in the disposition of pending cases and c a le n d a r congestion even though the language of Rule 41(b) appears to require a motion from a p a rty); Chambers v. Nasco, Inc., 501 U.S. 32, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991); John v. S ta te of Louisiana, 899 F.2d 1441 (5 th Cir. 1990) (upholding sanctions under Rule 16(f));
Rule 16(f) provides in pertinent part as follows: ( 1 ) In General. On motion or on its own, the court may issue any just orders, i n c l u d i n g those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party or its attorney: ... (C) fails to obey a scheduling or other pretrial order.
Rule 41(b) provides in pertinent part as follows: ( b ) Involuntary Dismissal; Effect. If the plaintiff fails to prosecute or to comply w ith these rules or a court order, a defendant may move to dismiss the action or a n y claim against it. Unless the dismissal order states otherwise, a dismissal u n d e r this subdivision (b) and any dismissal not under this rule--except one for l a c k of jurisdiction, improper venue, or failure to join a party under Rule 1 9 --o p e r a te s as an adjudication on the merits.
R u s h in g v. Kansas City Southern Railway Co., 185 F.3d 496, 508 and fn. 12 (5th Cir. 1999) s u p e rc e d ed by Rule as stated in Mathis v. Exxon Corp., 302 F.3d 448 (5 th Cir. 2002); Price v. M c G la th e ry , 792 F.2d 472, 474 (5th Cir. 1986) (noting the standard for dismissal under Rule 4 1 (b ) is applicable to dismissals under Rule 16(f) and accordingly upholding dismissal under th es e standards); Woodson v. Surgitek, Inc., 57 F.3d 1406, 1417-1418 (5th Cir. 1995); Natural G a s Pipeline Co. v. Energy Gathering, Inc., 2 F.3d 1397, 1407 (5th Cir. 1993). T h e purpose of rule 16(f) is to "encourage forceful judicial management" of litigation, a s well as to improve the quality of the trial through more thorough preparation. Therefore, p re ju d ic e resulting from a party's noncompliance with the rules need not be shown. John, 899 F .2 d at 1448 citing Advisory Committee on Rules, Notes to 1983 Amendment; Rules 16(a)(2) a n d 16(a)(4). Rule 16(f) gives the court wide authority to impose effective sanctions, if it is d e te rm in e d that sanctions are appropriate. Id. As is the case under Rule 37, a dismissal under Rule 41(b) or Rule 16(f) is a harsh sa n c tio n appropriate if a "clear record of delay or contumacious conduct by the plaintiff exists a n d lesser sanctions would not serve the best interests of justice." Price, 792 F.2d at 474 citing R o g e r s, 669 F.2d at 320. Additionally, at least one of three aggravating circumstances should b e present: (1) delay caused by plaintiff himself and not his attorney; (2) actual prejudice to the d e f e n d a n t; or (3) delay caused by intentional conduct. Id. In the instant case, the seventeen pilot claimants' conduct meets the above standard. The record discloses a clear pattern of delay caused by their conduct, as well as a history of
d isob ed ienc e by these claimants to this court's discovery orders. As a direct result of their actions, the pilots have halted the normal progression of discovery necessary for a just and final re so lu tio n of their claims; indeed, timely and adequate discovery of their claims has not been c o n d u c te d , and, at this late stage of the litigation, can never be conducted. Moreover, two aggravating circumstance are present. First, the delay caused herein is a d ire c t result of the pilot claimants' own actions. Counsel for the Union have indicated to the c o u rt that they have repeatedly attempted to contact these pilots to obtain the information n e c e ss a ry to form a proper response, but that there has been no response by the Pilots to their e f f o rts. This has also been implicitly acknowledged by counsel for the Union by their c o n c u rre n c e in the Notice of Non-Compliance filed by PHI and their lack of formal opposition to that Notice. Second, in light of this court's prior warning that failure to comply with this court's final o rd e r extending the discovery response deadline would result in a recommendation for d ism issal of this action, the pilot claimants' flagrant disobedience of this court's orders appears to be intentional rather than mere oversight or neglect. Moreover, given the level of training a n d education necessarily possessed by the pilot claimants, they obviously possesses the r e q u is ite knowledge and skill to understand the importance of meeting court ordered deadlines. T h is is particularly true in this case, given that the undersigned expressly warned the pilots that th e ir continuing failure to comply with their discovery obligations would result in a re c o m m e n d a tio n for dismissal of their claims.
F in a lly, given that the discovery deadline has long since passed and this case is to be trie d in less than one month, it is beyond dispute that PHI's trial preparation has been s u b s ta n tia lly prejudiced; PHI has been denied the opportunity to fully explore the specifics of th e individual pilots' claims. Accordingly, the undersigned concludes that a lesser sanction would not serve the best in te re s ts of justice. Batson, and Price, supra. Dismissal of the claims of individual pilot c laim an ts Larry Burgoyne, Michael Butler, Thuong Tran Duc, Daniel Goodson, Joseph Gubler, F ra n k Haynes, Adam Hite, James Pecnik, Richard Phelps, John Rohner, William Rosenbalm, N o rm a n Sherman, Jr., Dennis Smith, David Squires, Michael Stricklin, Jerold Swinderman and S te p h e n Torres without prejudice under Rule 37(d), FRCP is therefore recommended. These same reasons justify dismissal of the pilot's claims under Rule 41(b) and 16(f), F R C P . Accordingly, dismissal without prejudice under these Rules is likewise recommended. C O N C L U SIO N F o r the above reasons, IT IS RECOMMENDED that the claims of individual pilot c o m p la in a n ts Larry Burgoyne, Michael Butler, Thuong Tran Duc, Daniel Goodson, Joseph G u b le r, Frank Haynes, Adam Hite, James Pecnik, Richard Phelps, John Rohner, William R o se n b a lm , Norman Sherman, Jr., Dennis Smith, David Squires, Michael Stricklin, Jerold S w in d e rm a n and Stephen Torres be DISMISSED WITHOUT PREJUDICE pursuant to R u les 37(d), 41(b) and 16(f) of the Federal Rules of Civil Procedure, for failure to comply with th is court's discovery orders.
F a ilu r e to file written objections to the proposed factual findings and/or the p r o p o s e d legal conclusions reflected in this report and recommendation within ten (10) d a y s following the date of its service, or within the time frame authorized by Fed.R.Civ.P 6 (b ) , shall bar an aggrieved party from attacking either the factual findings or the legal c o n c lu s io n s accepted by the district court, except upon grounds of plain error. Douglass v . United Services Automobile Association, 79 F.3d. 1415 (5th Cir. 1996). C o u n s e l are directed to furnish a courtesy copy of any objections or responses to the D is tric t Judge at the time of filing. S ig n e d this 2 n d day of June, 2009, at Lafayette, Louisiana.
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