United States Court of Appeals,
Fifth Circuit.
No. 96-30980.
Jose GONZALEZ, Plaintiff-Appellant,
v.
TRINITY MARINE GROUP, INC., Defendant-Appellee.
July 28, 1997.
Appeal from the United States District Court for the Eastern
District of Louisiana.
Before POLITZ, Chief Judge, DeMOSS, Circuit Judge and DOHERTY,1
District Judge.
DOHERTY, District Judge:
Appellant, Jose Gonzalez ("Gonzalez"), appeals the district
court's judgment dismissing Gonzalez's suit at his cost and the
granting of reasonable attorney's fees and expenses in connection
with the district court's grant of Trinity Marine Group, Inc.'s
("Trinity") Motion to Strike Plaintiff's Pleadings for Dismissal
and Sanctions. Plaintiff also appeals the district court's use of
an evidentiary hearing in conjunction with Trinity's Motion to
Strike Pleadings for Dismissal and Sanctions and the denial by the
district court of Plaintiff's Motion for Partial Summary Judgment
on the issue of whether Plaintiff, as a matter of law, was an
"employee" within the meaning of La.Rev.Stat. § 23:1006 and
La.Rev.Stat. § 51:2231, the Louisiana race, sex, and age
discrimination in employment statutes. For the following reasons,
1
District Judge of the Western District of Louisiana, sitting
by designation.
1
we AFFIRM IN PART, REVERSE IN PART and REMAND IN PART.
Background
In August of 1994, Jose Gonzalez filed suit against Trinity
Marine Group, Inc. asserting several claims which included a claim
pursuant to the Louisiana employment discrimination statutes,
La.Rev.Stat. § 23:1006 and § 51:2231 et seq., claims pursuant to
La. Civ.Code art. 2315 for intentional and negligent infliction of
emotional distress, and a claim for breach of contract and
detrimental reliance also pursuant to Louisiana law.2
Gonzalez was hired on April 13, 1992, and employed as a
draftsman for over two years at Trinity's Gretna, Louisiana
shipyard. Trinity alleges Gonzalez was a "job shopper" or
independent contractor; Gonzalez alleges he was an employee.
Gonzalez's position was eliminated when the amount of drafting work
done at Trinity declined, and required a reduction in work force
and contract labor. Gonzalez was the last remaining job shopper
when his position was eliminated. Prior to his dismissal from
Trinity, in a letter dated August 17 1994, Gonzalez complained to
Trinity of discrimination based on his national origin, wherein he
stated his classification as an independent contractor was due to
his being of Hispanic national origin. The following week, on
2
However, the district court subsequently dismissed Gonzalez's
claims for intentional and negligent infliction of emotional
distress. Ruling on Motions, January 19, 1995. It is not
necessary for the purposes of this motion to reiterate the entire
procedural history of this matter, other than to state plaintiff's
claims are pursuant to La.Rev.Stat. § 51:2231 and La.Rev.Stat. §
23:1006. Plaintiff has not asserted a claim pursuant to 42 U.S.C.
§ 2000e, Title VII.
2
August 26, 1994, Trinity officials met with Gonzalez to discuss his
claim of discrimination. Unbeknownst to the Trinity officials,
Gonzalez secretly recorded the meeting. Gonzalez was terminated
from Trinity the following week and subsequently filed his
complaint on August 30, 1994 against Trinity alleging race
discrimination and retaliatory discharge.
Within discovery, Gonzalez did not disclose that a recording
of the meeting existed. A hearing was held on October 11, 1995, on
a Motion to Compel Certain Discovery, which would have included the
tape at issue, wherein the district court ordered Gonzalez to
produce a privilege log. Trinity's receipt of that log on October
24, 1995 granted Trinity its first notice of the existence of a
taped recording of the August 26, 1994 meeting.
Upon request to produce the tape, Gonzalez refused and Trinity
filed a second motion to compel. After the motion was filed by
Trinity, Gonzalez agreed to produce the tape and on November 7,
1995, Gonzalez's attorney, Gregory T. Juge, produced what is now
called the "original tape." The sound quality of the copied tape
was poor and Trinity engaged a local expert, Keith Falgout, to
amplify the sound quality. During this process concern arose that
the "original tape" had been altered.
Trinity subsequently hired an expert, Dr. George Papcun, of
Los Alamos National Laboratories, to perform certain tests on the
tape. To do so, he needed the actual "original" recording and the
tape recorder which Gonzalez had used to record the meeting with
Trinity officials. Trinity's attempts to obtain the actual
3
"original" recording and the tape recorder from plaintiff's counsel
were unsuccessful.
Trinity was forced to file a third motion to compel for the
production of the actual "original" recording and tape recorder.
The district court granted defendant's third motion to compel on
December 21, 1995, ordering Gonzalez to produce the actual
"original" tape and the recorder. Thereafter, Gonzales produced
the actual "original" tape recording and the tape recorder used in
recording the conversation between Gonzalez and the Trinity
officers on August 26, 1994. The "original" recording was
digitally recorded by Trinity's experts onto another tape and onto
a computer for later analysis. Both the "original" tape and the
digital copies were tested and analyzed by Trinity's experts.
Plaintiff's counsel was in attendance at all times during the
copying and testing of the "original" tape, and upon completion of
the testing, said tape was returned to his possession. Exact
duplicate copies of all tapes created and/or analyzed by
defendant's experts were provided to the Plaintiff.
After receiving a report from Dr. Papcun, Trinity filed a
Motion to Strike Pleadings, for Dismissal and Sanctions. In
conjunction with said motion, Trinity requested an evidentiary
hearing which the district court held on August 8, 1996.
After testimony was presented during the evidentiary hearing,
which included Plaintiff's testimony, defendant's experts, and
Trinity employees who had been present at the August 26, 1994
meeting, the district court ruled:
4
The Court having heard that which was presented on the motion
of Defendant to strike Plaintiff's pleadings for dismissal and
for sanctions will grant the motion for sanctions and will
discuss what they should be. I will reserve ruling on the
motion to strike pleadings and will reserve ruling on the
motion for dismissal.
It would be appreciated if Counsel could suggest to the Court
either orally now or in a brief what sanctions should be,
bearing in mind, and this is not a ruling on the motion for
dismissal, that I consider a dismissal rather extreme,
especially when there are other aspects of the case. But I
don't rule out dismissal, and striking pleadings in effect is
the same thing as dismissal, so whatever you care to address
is fine.
Sanctions, which should they be? I could pronounce to the
jury at the time of the trial of this case that it is an
established fact that Mr. Gonzalez knew at the time he had
this conversation that work was slowing down. I could tell
the jury that when I had a hearing on a pre-trial motion, I
considered that Mr. Gonzalez's testimony was untruthful and I
could tell the jury that Mr. Gonzalez made a tape recording of
a conversation unknown to other participants in the
conversation and that while in his possession the tape
recording was altered in the manner in which it was altered.
These are merely suggestions, but I do think the preponderance
of the evidence I've heard, the expert testimony, every—the
tape was altered. The only material place that I think we're
talking about is the "I don't know," instead of, "yes, I know
the work was slowing down."
And it would be my intention to make sure the jury knows that
my appreciation of the fact was that Mr. Gonzalez was
untruthful and that the tape while in his possession was
altered in that respect....
With all this in mind, I don't see that it's necessary for me
at this time to report this to the Criminal Division of the
United States Attorney's Office, but it might be that it
should be done. I'm stating now that evidence in the case was
altered. I'm stating that I think perhaps Mr. Gonzalez
committed perjury. Maybe you should address whether I should
address this to the Criminal Division of the United States
Attorney's Office.
I throw the ball in your court, gentlemen and consider the
matter submitted.
Transcript of Evidentiary Hearing, August 8, 1996, at 131-33.
5
Counsel for Gonzalez and Trinity both submitted post-trial
memoranda as requested by the court.
The district court thereafter on August 29, 1996, issued
ruling on defendant's Motion to Strike Pleadings for Dismissal and
Sanctions. In said ruling, the district court found based on
"material filed in support of defendant's motion, from independent
expert laboratory analysis and from the testimony and evidence
addressed at the evidentiary hearing that the tape was deliberately
altered and fabricated in two ways: (1) certain admissions by
plaintiff were erased, and (2) certain admissions by plaintiff were
"over dubbed" with statements neutralizing the effect of these same
admissions."3
The Court further noted, "[t]he experts' opinions and findings
are that the "original' tape that was produced by plaintiff: (l )
is not a recording of the conversation it purports to represent,
(2) is not the recording made between plaintiff and defendant
officials, (3) is a false recording of those purported events, and
(4) has been edited and deliberately altered in an attempt to
fabricate a single, continuous recording between the parties. The
court agrees with these opinions and findings and also determines
that plaintiff gave untruthful testimony at the hearing to the
effect that he did not stop-start the recording device on his
person at the aforesaid conference with defendants, and to the
effect that the tape was not altered."4 The district court then
3
Memorandum Ruling of August 29, 1997 at 2.
4
Id. at 4.
6
granted Trinity's motion to dismiss Gonzalez's claim and awarded
attorney's fees and expenses in connection with its motions.
Gonzalez appeals the court's order imposing sanctions and
dismissing his case complaining that the district court abused its
discretion by holding an evidentiary hearing in conjunction with
defendant's Motion to Strike Plaintiff's Pleadings for Dismissal
and Sanctions, thereby denying Plaintiff his right to a jury trial;
and failing to use the least severe sanction available by
dismissing Plaintiff's entire claim pursuant to its inherent powers
and Fed. R. Civ. Pro. 37(b)(2). Additionally, Gonzalez appeals the
district court's denial of his Motion for Partial Summary Judgment.
Discussion
We review the district court's imposition of sanctions and
dismissal of Plaintiff's case for abuse of discretion. Chambers v.
NASCO, Inc., 501 U.S. 32, 55, 111 S.Ct. 2123, 2138, 115 L.Ed.2d 27,
reh'g denied, 501 U.S. 1269, 112 S.Ct. 12, 115 L.Ed.2d 1097 (1991);
Natural Gas Pipeline Co. of America v. Energy Gathering, Inc., 2
F.3d 1397, 1410 (5th Cir.1993) cert. denied, Fox v. Natural Gas
Pipeline Co. of America, 510 U.S. 1073, 114 S.Ct. 882, 127 L.Ed.2d
77 (1994). In dismissing Plaintiff's claim, the district court
appears to have relied on Fed. R. Civ. Pro. 37(b)(2)(C) and the
Fifth Circuit opinion of Woodson v. Surgitek, Inc., 57 F.3d 1406,
1417 (5th Cir.1995), in which a plaintiff's claim was dismissed
pursuant to the district court's inherent powers under Article III.
Federal Rule of Civil Procedure 37(b) addresses the issue of
sanctions and provides in relevant part:
7
(2) Sanctions by a court in which action is pending. If a
party ... fails to obey an order to provide or permit
discovery, including an order made under subdivision (a) of
this rule ..., the court in which the action is pending may
make such orders in regard to the failure as are just, and
among others the following:
(C) An order striking out pleadings or parts thereof, or
staying further proceedings until the order is obeyed, or
dismissing the action or proceeding or any part thereof,
or rendering a judgment by default against the
disobedient party;
In Woodson, this court also upheld dismissal of a plaintiff's
claim based on the inherent power of a district court. In Woodson
we stated:
The federal courts are vested with the inherent power "to
manage their own affairs so as to achieve the orderly and
expeditious disposition of cases." [Link v. Wabash R. Co.,
370 U.S. 626, 630, 82 S.Ct. 1386, 1388, 1389, 8 L.Ed.2d 734
(1962).] This power is necessarily incident to the judicial
power granted under Article III of the Constitution. [Natural
Gas Pipeline, 2 F.3d at 1406.] This includes the power of the
court to control its docket by dismissing a case as a sanction
for a party's failure to obey court orders. [In re United
Markets Int'l, Inc., 24 F.3d 650, 654 (5th Cir.) cert.
denied,513 U.S. 946, 115 S.Ct. 356, 130 L.Ed.2d 310 (1994).]
However, when these inherent powers are invoked, they must be
exercised with "restraint and discretion." [Chambers, 501
U.S. at 44, 111 S.Ct. at 2132.] Dismissing a case with
prejudice is a harsh sanction, but we will uphold an
involuntary dismissal unless the district court has abused its
discretion. [Id. at 54-56, 111 S.Ct. at 2138.] This Court
has held that such sanctions should be confined to instances
of "bad faith or willful abuse of the judicial process."
[United Markets, 24 F.3d at 654 (quoting Pressey v. Patterson,
898 F.2d 1018, 1021 (5th Cir.1990)).]
Woodson, 57 F.3d at 1417 (some citations omitted).
Further, "a court must, of course, exercise caution in
invoking its inherent power, and it must comply with the mandates
of due process, both in determining that the requisite bad faith
8
exists and in assessing fees."5
This Court notes that dismissal with prejudice is an "extreme
sanction that deprives the litigant of the opportunity to pursue
his claim." Woodson, 57 F.3d at 1418 (quoting Callip v. Harris
County Child Welfare Dept., 757 F.2d 1513, 1519 (5th Cir.1985)).
Additionally, the district court is bound to impose the least
severe sanction available. Carroll v. Jaques Admiralty Law Firm,
110 F.3d 290 (5th Cir.1997).
First, this Court finds no abuse of discretion in the court's
actions as to its grant of expenses and attorney's fees and thus
AFFIRMS the district court's grant of reasonable expenses including
attorney's fees as sanctions for Plaintiff's conduct.
Second, this Court AFFIRMS the district court's use of an
evidentiary hearing in conjunction with defendant's Motion to
Strike Plaintiff's Pleadings for Dismissal and Sanctions. An
evidentiary hearing in order to determine the validity of a claim
of willful and bad faith fabrication of evidence and an abuse of
the judicial process, is wholly within the discretion of the
district court and does not deprive Plaintiff of his right to a
jury trial on his claims. Said evidentiary hearing would be in the
nature of a hearing required pursuant to Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d
469 (1993), which requires the district court to exercise a "gate
keeping" role prior to trial to determine whether the testimony
5
Chambers, 501 U.S. at 50, 111 S.Ct. at 2136. There is no
issue of due process that need be addressed, nor that was raised by
Gonzalez.
9
offered by an expert is sufficiently reliable to be presented to
the jury. Such is the case with the "altered" tape recording at
issue. Allegations made by defendant require the exercise of the
district court's inherent power to "manage their own affairs so as
to achieve an orderly and expeditious disposition of cases." Link,
370 U.S. at 630-31, 82 S.Ct. at 1389.
Third, this Court must now address the most difficult issue
presented, the dismissal of Plaintiff's entire case with prejudice
as a sanction. As noted, Rule 37(b) specifically provides for
dismissal of an action for direct failure of a party to obey an
order of the court. Also, as previously noted, this Court has
affirmed dismissal as a sanction under the inherent powers of the
court. Woodson, supra. However, in recognizing those powers this
Court also has required the least onerous sanction which will
address the offensive conduct be used. In this matter, as the
district court itself noted it had available a wide selection of
sanctions. Many of the available possible sanctions would have had
same or similar practical effect as to plaintiff's egregious
actions and result as the dismissal. As this is the case, this
court REVERSES the district court, only in its selection of
dismissal of the entire case, and REMANDS this case to the district
court for selection of an appropriate sanction which fully
addresses Plaintiff's egregious behavior, but falls short of the
ultimate sanction of dismissal of Plaintiff's entire claim with
prejudice.
Denial of Partial Summary Judgment
10
As previously stated, the crux of Plaintiff's discrimination
claim against Trinity is plaintiff's nationality, Hispanic, and his
allegations that he was not receiving the same benefits as other
employees at Trinity while he was working at the Trinity Gretna
shipyard. Trinity alleges that Plaintiff was hired as an
independent contractor and a "job shopper" and therefore, Plaintiff
must establish he was in fact an employee and Trinity was his
employer, in order for Gonzalez to maintain his claims under the
Louisiana discrimination statutes.6
Accordingly, Gonzalez, on June 4, 1996, filed a Motion for
Partial Summary Judgment seeking a ruling from the district court
that Plaintiff was an "employee" within the meaning of Title VII
and that Trinity was liable for discriminating against Plaintiff in
the terms and conditions of his employment, prior to his discharge.
The Motion for Summary Judgment was heard on briefs and
subsequently denied by the district court in an order and reasons
dated July 17, 1996. The district court essentially ruled, that in
applying the "hybrid test" for a determination of employee status,
cited in Deal v. State Farm Mutual Ins. Co. of Texas, 5 F.3d 117,
118-19 (5th Cir.1993), that the determination of whether Gonzalez
was an "employee" or "independent contractor" "requires a factual
analysis of often conflicting allegations" and as such, the
district court found that the "issue is not amenable to summary
6
Both parties agree that the analysis of plaintiff's claims
under La.Rev.Stat. § 51:2231 and La.Rev.Stat. § 23:1006 utilize the
same analysis as a claim for discrimination brought under Title
VII.
11
judgment at this time."7
The district court's denial of Plaintiff's Motion for Partial
Summary Judgment is not a final decision as to which this Court has
appellate jurisdiction. See Enplanar, Inc. v. Marsh, 11 F.3d 1284,
1291 n. 7 (5th Cir.1994) (citing 10 Wright & Miller, FEDERAL
PRACTICE AND PROCEDURE § 2715 p. 636). Consequently, Plaintiff's
appeal as to this action by the district court is DISMISSED.
Conclusion
This Court finds Gonzalez's behavior as reprehensible as did
the district court and recognizes with approval the district
court's exercise of its right to protect the integrity of the
judicial process. However, as recognized by the district court in
its reasons, dismissal of the entire claim is extreme and the
district court had available several other options which would have
addressed the offensive behavior with equally deterrent effect.
Accordingly, the dismissal of Plaintiff's claim with prejudice is
REVERSED. This Court, however, AFFIRMS the awarding of reasonable
costs and attorney's fees in connection with the motions and
holding of an evidentiary hearing by the district court in order to
determine the validity of the "original" tape in question.
Although Gonzalez also raises on appeal the district court's denial
of his Motion for Partial Summary Judgment, Plaintiff's appeal of
the denial of the Motion for Partial Summary Judgment is DISMISSED
for lack of appellate jurisdiction.
7
Order and Reasons of July 17, 1996.
12