Waldschmidt v. Columbia Gulf Transmission Co. (In re Fulghum Construction Corp.)

20 B.R. 925, 1982 Bankr. LEXIS 3924
CourtUnited States Bankruptcy Court, M.D. Tennessee
DecidedJune 15, 1982
DocketBankruptcy No. 380-00235; Adv. No. 380-0431
StatusPublished
Cited by1 cases

This text of 20 B.R. 925 (Waldschmidt v. Columbia Gulf Transmission Co. (In re Fulghum Construction Corp.)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, M.D. Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Waldschmidt v. Columbia Gulf Transmission Co. (In re Fulghum Construction Corp.), 20 B.R. 925, 1982 Bankr. LEXIS 3924 (Tenn. 1982).

Opinion

MEMORANDUM

KEITH M. LUNDIN, Bankruptcy Judge.

This matter is before the Court on the motion of the plaintiff/trustee to impose sanctions on the defendant for failure to comply with discovery orders. This is the second motion for sanctions against this defendant under Rule 37 of the Federal Rules of Civil Procedure.1 The prior Rule 37 motion was granted by order dated September 30, 1981.2 15 B.R. 52. This second motion seeks further sanctions for the alleged failure of the defendant to comply with the order of September 30, 1981. For the reasons stated below, the trustee’s second request for sanctions is granted in part and denied in part.

The procedural history of this case prior to September 30, 1981 is accurately discussed in this Court’s order of September 30, 1981. In this second motion for sanctions, the trustee contends that the defendant has failed to comply with two3 specific [927]*927provisions of the order of September 30, 1981:

1. That portion of the order which required that “the defendant should4 furnish the trustee within 15 days of the date of this order with a list identifying all persons with significant information concerning this matter and the nature of that information.”
2. That portion of the order which stated “that the trustee should recover attorneys’ fees from the defendant’s attorney in the amount of $750.”

In support of this second motion, the trustee exhibits a letter to defendant’s counsel dated March 2, 1982 in which the trustee demanded compliance with the September 30, 1981 order. In addition, the trustee submits an affidavit stating that, as of April 26, 1982, the trustee had not received the list of names or the attorneys’ fees called for in the order.

At the hearing on June 3, 1982, the trustee, Robert H. Waldschmidt,5 and Harlan Dodson, III, counsel for the defendant, appeared and each gave testimony. Mr. Dodson testified that he appealed the order of September 30, 1981, but that no stay has been sought or granted of that order or of the District Court’s order affirming the decision of the Bankruptcy Court. Mr. Dodson introduced exhibits indicating communications with the trustee during October of 1981. Mr. Dodson stated his impression that the trustee did not wish to carry out the discovery provisions of the September 30th order because the trustee intended to proceed with a motion for summary judgment. The trustee filed his first motion for summary judgment on November 12, 1981. That motion for summary judgment was denied on December 17, 1981. On January 14,1982, the trustee filed his second request for admissions and his third set of interrogatories to the defendant. Answers to the trustee’s second request for admissions and to the third set of interrogatories were filed by the defendant on February 19,1982. By notice dated March 1, 1982, trial was reset for June 3, 1982.6 On April 2, 1982 the trustee filed a second motion for summary judgment. Mr. Dodson stated that at no time was he informed that his client was failing to provide anything required by the September 30th order.

Mr. Waldschmidt testified that he filed no formal discovery requests between the order of September 30, 1981 and the decision denying the first motion for summary judgment on December 17,1981. However, following the denial of the first motion for summary judgment, Mr. Waldschmidt sought discovery by filing the second request for admissions and the third set of interrogatories on January 14, 1982. Mr. Waldschmidt testified that he sent the March 2, 1982 letter to Harlan Dodson, III, demanding compliance with the September 30, 1981 order and asking Mr. Dodson for documentation concerning the further appeal of the September 30th order to the United States Court of Appeals for the Sixth Circuit. Mr. Dodson testified that he never received Mr. Waldschmidt’s letter. Mr. Waldschmidt recalled that some days after the letter of March 2,1982 he received the requested documentation. At no time has Mr. Waldschmidt received the $750 attorney’s fee. Except for the period between September 30,1981, and the denial of the first motion for summary judgment on December 17,1981, Mr. Waldschmidt stated he has never acquiesced in noncompliance [928]*928with the discovery provision of the September 30th order.

This second motion for sanctions was filed on April 27, 1982. On May 27, 1982 a pre-trial conference was held in chambers. By pre-trial order dated May 28, 1982, trial was rescheduled to begin June 16, 1982 and yet another schedule for discovery was established. On May 28, 1982, the defendant finally provided the trustee with a list of the names, etc., of persons having knowledge of this matter, as required by the order of September 30, 1981.

The trustee is correct that this is an appropriate case for the imposition of sanctions pursuant to Rule 37 of the Federal Rules of Civil Procedure. This Court’s order of September 30,1981 was an order “to provide or to permit discovery” within the provisions of Rule 37(b)(2) of the Federal Rules. Rule 37(b)(2) states explicitly that Rule 37 may be used to impose sanctions for the failure to comply with a prior Rule 37(a) order. The courts have broadly recognized the use of Rule 37 to impose sanctions for disobedience of valid discovery orders. See, e.g., Ohio v. Arthur Anderson & Co., 570 F.2d 1370 (10th Cir.), cert. denied, 439 U.S. 833, 99 S.Ct. 114, 58 L.Ed.2d 129 (1978); Von Brimer v. Whirlpool Corp., 536 F.2d 838 (9th Cir. 1976); Local 251, International Brotherhood of Teamsters v. Town Line Sand & Gravel, Inc., 511 F.2d 1198 (1st Cir. 1975). Mr. Dodson contends that the portion of the September 30th order which required him to pay $750 to the trustee is an order which can only be enforced by application for contempt. This argument is without merit. Rule 37(b)(2)(D) specifically contemplates the use of contempt powers in matters arising under Rule 37(b). The $750 awarded by this Court against Harlan Dodson, III, personally, was an order authorized by Rule 37(a)(4) of the Federal Rules of Civil Procedure. Such order was an order under Rule 37(a), violation of which may be sanctioned pursuant to Rule 37(b)(2).7

At least two portions of the order of September 30, 1981 are “self-executing” in the sense that no further action or request by the trustee was necessary to require some action or compliance by the defendant.8

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Bluebook (online)
20 B.R. 925, 1982 Bankr. LEXIS 3924, Counsel Stack Legal Research, https://law.counselstack.com/opinion/waldschmidt-v-columbia-gulf-transmission-co-in-re-fulghum-construction-tnmb-1982.