Commercial Litigation and Arbitration

Discovery Sanctions — Dismissal under Rule 37 — Factors — Breadth of Discretion

Moore v. Citgo Refining & Chem. Co., 2013 U.S. App. LEXIS 22835 (5th Cir. Nov. 12, 2013):

Console supervisors at a refinery alleged that their employer, CITGO Refining and Chemicals Company, L.P. ("CITGO"), misclassified them as exempt from the overtime pay requirements of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201-219. In two separate discovery sanctions, the district court dismissed twenty-one of twenty-four plaintiffs. After granting CITGO's motion to exclude testimony regarding damages by the three remaining plaintiffs, the court granted summary judgment for CITGO based on plaintiffs' inability to prove damages.... We affirm the summary judgment...

Rule 37(b)(A)(v) expressly contemplates dismissal, and the district court's discretion thereunder is broad. Bluitt v. Arco Chem., 777 F.2d 188, 191 (5th Cir. 1985). "The courts have consistently demonstrated their willingness to impose the ultimate sanction of dismissal or default." Gregory P. Joseph, Sanctions: The Federal Law of Litigation Abuse § 49(B)(4), at 729 (5th ed. 2013) (citation omitted). "[D]ismissal is a severe sanction that implicates due  process." FDIC v. Conner, 20 F.3d 1376, 1380 (5th Cir. 1994). Rule 37 dismissal, however "must be available to the district court in appropriate cases, 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." Nat'l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643 (1976) (per curiam).

"The question . . . is not . . . whether the Court of Appeals [ ] would as an original matter have dismissed the action; it is whether the District Court abused its discretion in so doing." Id. at 642. The Court's Rule 37 dismissal guidance is but a specific application of its general instructions regarding clear error review: "If the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently." Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573-74 (1985).

   [S]everal factors ["Conner factors"] must be present before a district court may dismiss a case with prejudice as a sanction for violating a discovery order:   (1) "the refusal to comply results from willfulness or bad faith and is accompanied by a clear record of delay or contumacious conduct;" (2) the violation of the discovery order must be attributable to the client instead of the attorney, (3) the violating party's misconduct "must substantially prejudice the opposing party;" and (4) a less drastic sanction would not substantially achieve the desired deterrent effect.

Doe v. Am. Airlines, 283 F. App'x 289, 291 (5th Cir. 2008) (per curiam) (quoting Conner, 20 F.3d at 1380-81); accord Gregory P. Joseph, supra, § 49(B)(4), at 740 (quoting Conner, 20 F.3d at 1380-81).

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