Taub v. Gulf Oil Corp.

94 F.R.D. 198, 1982 U.S. Dist. LEXIS 12545
CourtDistrict Court, E.D. Pennsylvania
DecidedMay 21, 1982
DocketCiv. A. No. 77-863
StatusPublished

This text of 94 F.R.D. 198 (Taub v. Gulf Oil Corp.) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Taub v. Gulf Oil Corp., 94 F.R.D. 198, 1982 U.S. Dist. LEXIS 12545 (E.D. Pa. 1982).

Opinion

MEMORANDUM and ORDER

SHAPIRO, District Judge.

Defendants Gulf Oil Corporation and Gulf Oil Trading Company (“Gulf”) have moved to dismiss this case pursuant to Fed. R.Civ.P. 37 for failure of plaintiff William Taub (“Taub”) to comply with the Orders of this court regarding his deposition. Taub has wilfully and persistently obstructed the pretrial discovery process and has failed to appear for his deposition or offer a date for doing so over the course of three years notwithstanding the court’s explicit directives. Taub’s flagrant violation of the Orders of this court and his disregard for the Federal Rules of Civil Procedure justify dismissal with prejudice.

The court’s power to impose the sanction of dismissal cannot be doubted. The Federal Rules allow dismissal for failure of a party to permit discovery. Fed.R. Civ.P. 37(b), (d). Dismissal with prejudice as a Rule 37 sanction must be accompanied by an articulation on the record of the factual, legal and discretionary issues presented. Quality Prefabrication, Inc. v. Daniel J. Keating Co., 675 F.2d 77 (3d Cir., 1982).

A finding of wilfulness, bad faith or fault is necessary before this extreme sanction should be imposed. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 640, 96 S.Ct. 2778, 2779, 49 L.Ed.2d 747 (1976) (per curiam) [199]*199(citing Societe Internationale v. Rogers, 357 U.S. 197, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958)); Quality Prefabrication, supra. Initial noncompliance with a discovery order may not be sufficient to invoke this sanction, see Coastal States Gas Corp. v. Department of Energy, 644 F.2d 969, 975 (3d Cir. 1981), but a trial court does not abuse its discretion to dismiss when a discovery order is negligently or deliberately flouted for over six months. Compagnie Des Bauxites De Guinea v. Insurance Co. of North America, 651 F.2d 877 (3d Cir.) cert. granted, 454 U.S. 963, 102 S.Ct. 502, 70 L.Ed.2d 377 (1981). Moreover, “Rule 37 sanctions must be applied diligently” both to penalize and to deter such conduct. Roadway Express, Inc. v. Piper, 447 U.S. 752, 763-764, 100 S.Ct. 2455, 2462-2463, 65 L.Ed.2d 488 (1980).

A chronology of events in this case demonstrates Taub’s utter disregard for the court, it’s Orders and the litigation process. Taub was noticed for deposition on April 24, 1978. The deposition, scheduled for May 3, 1978, was adjourned at Taub’s request to a date which he was to specify. On August 7, 1978 Taub was ordered by Judge Van Artsdalen to appear for deposition during the week of September 11,1978. In the memorandum which accompanied the latter Order, Judge Van Artsdalen stated:

The contention that to require Mr. Taub to attend would be forcing him to give up his living can only be considered, if plaintiff is bringing this action in good faith, to be plainly frivolous. The complaint alleges that plaintiff negotiated on behalf of the defendant to obtain a huge supply of oil from a foreign government or foreign sources during the oil crisis of several years ago. Plaintiff claims that defendant owes a commission to plaintiff of 521/2 million dollars. It is inconceivable to any rational mind that one would be giving up one’s living to attend a one or two day deposition if, in fact, he has a colorably valid claim of such a size.

On September 7,1978, Judge Van Artsdalen rescheduled the deposition for October 25, 1978.

This case was reassigned to us on October 12, 1978. Thereafter Taub sought to avoid the deposition ordered by Judge Van Artsdalen by filing three motions for a protective order.

The first motion for protective order, filed October 19,1978, sought to change the site of the deposition to the office of Taub’s counsel on the ground that Taub, an international oil broker, would be intimidated by being deposed in the federal courthouse. This motion was denied. Ón October 23, 1978, Taub sought to postpone his deposition for sixty (60) days on the ground that his brother was then undergoing radiation treatment for a brain tumor at a hospital in Philadelphia. The next day, October 24, 1978, Taub moved to postpone his deposition until 2:30 p. m. on October 25, 1978 because he himself had to undergo “medical examinations and testing” outside of- Philadelphia. In an effort to accommodate Taub’s concern for his brother, this court Ordered that he appear for deposition for no more than four hours per day and subsequently, to allow for his medical examination, the deposition was continued by the court until October 25, 1978 at 2:30 p. m.

Mr. Taub did not appear for the deposition on October 25, 1978. Instead, he filed two affidavits in which he alleged that: (1) he feared for his life because of

... various attempts of murder on my life, at a time when I was kidnapped in Geneva, Switzerland, and the three people responsible were apprehended by INTERPOL in France, all of whom have been given prison sentences ....

and that (2) “to the best of his recollection” (and contrary to the representation made in his third motion for a protective order) a doctor’s appointment conflicted with the deposition date and time. When Taub failed to appear, counsel for both parties made statements for the record. From that transcript two points are clear: (1) Taub was in Philadelphia at or about the time the deposition was to begin but he refused to appear, and (2) that very morning Taub’s counsel had informed counsel for Gulf that [200]*200Taub was available for deposition.1 (N.T. 11-12).

On November 9, 1978, Gulfs first motion to dismiss pursuant to Fed.R.Civ.P. 37(b) was denied. Disposition of that motion was influenced by the fact that the case had then been recently reassigned. (N.T. 30). However, Taub’s deposition was ordered to take place on or before December 20,1978;2 a “lack of candor” with the court on the part of Taub and a “wilful violation of my order to appear at deposition,” unexcused by any evidence presented to the court, was found (N.T. 31):

.. . the plaintiff has been given every consideration to which he is entitled and some to which he is not entitled and there will be no ifs, ands or buts. (N.T. 35) ... failure to have the plaintiff appear for that deposition on or before December 20 will result in dismissal of the case. (N.T. 32).

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Bluebook (online)
94 F.R.D. 198, 1982 U.S. Dist. LEXIS 12545, Counsel Stack Legal Research, https://law.counselstack.com/opinion/taub-v-gulf-oil-corp-paed-1982.