In re Selected Somersworth Bank Cases

148 F.R.D. 1, 1993 U.S. Dist. LEXIS 4488, 1993 WL 104909
CourtDistrict Court, D. Maine
DecidedMarch 16, 1993
DocketCiv. Nos. 92-149 through 92-151, 92-267, 92-269 through 92-277
StatusPublished
Cited by3 cases

This text of 148 F.R.D. 1 (In re Selected Somersworth Bank Cases) is published on Counsel Stack Legal Research, covering District Court, D. Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Selected Somersworth Bank Cases, 148 F.R.D. 1, 1993 U.S. Dist. LEXIS 4488, 1993 WL 104909 (D. Me. 1993).

Opinion

MEMORANDUM AND PROCEDURAL ORDER

GENE CARTER, Chief Judge.

The Court now has before it for action Motions for Sanctions, including dismissal, by one or more Defendants based upon alleged discovery violations of Plaintiff FDIC in nine of the above-cited cases. The Court has completed a painstaking study of the record made on these motions and a careful review of the legal memoranda of counsel thereon.

These cases are part of a group of some fourteen cases brought to this Court on removal by the FDIC from various Maine state courts. These, and other cases in which the FDIC is a party, have been the-cause of much trouble and frustration due to the FDIC’s unwillingness or'inability (because of an apparent combination'of its own bureau^ cratic inefficiency, institutional inertia,-.persistent recalcitrance, and its failure to cooperate with its retained counsel) to follow the procedural (and, principally, discovery) rules that govern its conduct as a civil litigant in this Court. It has repeatedly refused this Court’s most earnest entreaties to conduct its affairs in such a manner as to comply with the rules of this Court. It has consistently displayed a cavalier disinterest in doing so, generally refusing to honor the Court’s entreaties with any substantive response whatever. The Court has repeatedly asked the FDIC, through various counsel, to initiate a system for authorized conduct on its behalf of negotiations for settlement of these and other cases and for prompt approval processes and confirmation of settlements, when finally agreed upon, without the need to repeatedly seek enlargements of time for those purposes. Plaintiff, in the view of this Court, is embarked upon a course of deliberate stonewalling of this Court’s efforts to require that it conform with those rules and procedures that apply routinely to all civil litigants in this Court.1

These fourteen pieces of litigation are an extreme demonstration of the FDIC’s confused, obstructionist, inept, and uncooperative litigating style. The cases were generally removed to this Court in July-August 1992. The docket in each case reflects this Court’s constant diligence in following each case, virtually on a daily basis, and acting with expedition on every motion as it matures. The Court, usually after extensive pretrial handling of these cases, entered in each case its Scheduling Order2 governing the pretrial development of the case (Docket No. 30).3 Substitute counsel filed on January [3]*315, 1993, two months later, a Motion to Extend the Scheduling Order for a period of ninety days and seeking a thirty-day delay of all discovery procedures then pending. The ostensible basis for the motion was the practical work of changing counsel for the FDIC. The Court found no persuasive reason set forth by the FDIC for these extensions and denied the motion on July 19, 1992, in all cases. The Court has continuously hectored, lectured, and harassed all counsel in these cases, but particularly the FDIC’s, with the certainty that the provisions of the Scheduling Orders will be abided by and that, as they provide, these cases will be ready for and, absent other resolution, will go to trial in May 1993.

The Court, because of this history of unjustified procrastination on the part of the FDIC, reacted with a keen sense of danger to the motion of FDIC’s original counsel to withdraw from the case, filed on December 28, 1992 (Docket No. 33), seeing therein the prospect of one more Machiavellian ploy aimed at delaying the preparation of these cases for disposition. Events validated the Court’s perception of the need for caution. Very shortly followed the FDIC’s Motion to Amend the Scheduling Order, discussed above, and three days after its denial, FDIC’s Motion to Dismiss or Stay the proceedings in all cases on what proved to be the blatantly false assertion that the Court was without jurisdiction because of the pen-dency of claims in the administrative hearing process under 12 U.S.C. § 1821(d)(13)(D). In fact, the claims in question previously had been denied by the FDIC and were not pending at all. When the Court finally forced the FDIC’s substitute counsel to disclose when the denials occurred, it was established that the claims were denied on December 28, 1992,4 nearly a month prior to the filing of the Motion to Dismiss or Stay. The Court has already dealt at length with this Falstaffian bit of trial tactics in its Memorandum of Decision and Order Granting the FDIC’s Counsel’s Motion to Withdraw, filed on February 12, 1993 (Docket No. 50). Therein, the Court once more made explicit its mounting level of frustration and impatience with the FDIC’s dilatory tactics and stressed that these cases would be disposed of in May 1993.

Defendants in these cases have now filed extensive motions for discovery sanctions arising out of the FDIC’s conduct which seek the dismissal of the cases by reason of the FDIC’s failure to attend and answer questions at noticed depositions of the FDIC and failure to produce documents in discovery. They have been responded to by voluminous filings of the FDIC, which has also filed two rounds of motions for summary judgment.5

[4]*4It appears to the Court from its review of the filings on the Motions for Sanctions that the Court may ultimately, perhaps after an evidentiary hearing, conclude that there is reason for discovery sanctions to he imposed on the FDIC. It also appears, however, that the ultimate sanction of dismissal of the cases may not be found to be appropriate.

Federal Rule of Civil Procedure 37 provides that whatever sanctions are “just,” including dismissal, may be applied against a party who fails to appear at his own deposition after being served with proper notice. The decision to sanction and the choice of the sanction lie with the discretion of the district judge. See National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642, 96 S.Ct. 2778, 2780, 49 L.Ed.2d 747 (1976).

Defendants have asked this Court to dismiss all of Plaintiffs claims against them. The Court of Appeals has stated that “[d]is-missal with prejudice ‘is a harsh sanction’ which runs counter to our ‘strong policy favoring the disposition of cases on the merits.’ ” Figueroa Ruiz v. Alegria, 896 F.2d 645, 647 (1st Cir.1990) (quoting Rickman v. General Motors Corp., 437 F.2d 196, 199 (1st Cir.1971), and Zavala Santiago v. Gonzalez Rivera, 553 F.2d 710, 712 (1st Cir.1977)). The policy disfavoring dismissal is based upon the proposition that eases should be disposed of on the merits except in the most unusual circumstances. While the most severe sanction of dismissal must be available not merely to penalize egregious conduct but also to deter such conduct, National Hockey League, 427 U.S. at 643, 96 S.Ct. at 2781, fairness requires that some limits be placed on its use.

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Bluebook (online)
148 F.R.D. 1, 1993 U.S. Dist. LEXIS 4488, 1993 WL 104909, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-selected-somersworth-bank-cases-med-1993.