F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 24 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
CETA DOCHTERMAN; CELECE
DOCHTERMAN, a minor, by and
through her Guardian Ad Litem Ceta
Dochterman,
Plaintiffs-Counter-
Defendants-Appellants,
v.
RESOURCE REALIZATIONS, a No. 01-4247
corporation, (D.C. No. 98-CV-825-K)
(D. Utah)
Defendant,
and
TEEN HELP; R&B BILLING, a
corporation, also known as R&D
Billing; DIXIE CONTRACT
SERVICES, a corporation; ROBERT
B. LICHFIELD; BRENT M. FACER,
Defendants-Counter-
Claimants-Appellees.
ORDER AND JUDGMENT *
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Before EBEL , BALDOCK , and LUCERO , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Plaintiffs Ceta Dochterman and her daughter Celece Dochterman appeal the
district court’s order dismissing their complaint as a sanction for their repeated
failures to provide discovery. We exercise jurisdiction under 28 U.S.C. § 1291
and affirm.
Background
Defendants 1
operated a residential facility for treatment of teenagers with
behavioral and other problems. Ceta Dochterman placed her daughter Celece in
the facility in 1995 and 1997. Plaintiffs claimed that Celece was physically and
mentally abused there, and that they had been deceived about the abusive
treatment techniques prior to Celece’s placement. They filed suit invoking
diversity jurisdiction and alleging various causes of action based on Celece’s
1
Defendant Resource Realizations is not a party to this appeal. Our
references to “defendants” are to the remaining defendants, who are appellees.
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treatment. Plaintiffs alleged that defendants directed and/or participated in the
abuse of Celece. Defendants filed a counterclaim, which they abandoned when
the district court dismissed plaintiffs’ case.
The district court assigned the case to a magistrate judge for pretrial
proceedings, pursuant to 28 U.S.C. § 636(b)(1). Discovery ensued. Defendants
attempted three times to depose both plaintiffs, but plaintiffs never appeared and
were never deposed. Consequently, the magistrate judge ruled that plaintiffs
would not be allowed to testify at trial. Appellants’ App. at 328.
Similar problems arose with plaintiffs’ designation of their expert
witnesses. Due to plaintiffs’ failure to provide their experts’ reports, defendants
filed a motion to exclude expert witnesses or compel discovery. By an order
dated December 4, 2000, the magistrate judge denied the request to exclude the
witnesses, but granted the motion to compel discovery and imposed a sanction of
$750 against plaintiffs and their attorney for defendants’ costs and attorney fees
in bringing the motion. Id. at 194-96. Plaintiffs produced the report of only one
of their expert witnesses, and as a consequence, they were precluded from calling
any experts except the one whose report was provided. Id. at 328.
In February 2000, defendants moved for sanctions. In an order dated
October 24, 2000, the district court denied the motion, but warned that “[t]his
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denial should not be interpreted as an indication that the court will continue to
allow dilatory behavior without consequence.” Id. at 279.
Plaintiffs also failed to produce medical records and other documents
defendants requested through discovery. Defendants filed a motion to compel
their production, which the magistrate judge granted following a hearing on
February 1, 2001. See Id. at 326-29. The order required that the documents be
produced or that plaintiffs “submit a signed authorization . . . providing for the
release of all such records to defendants.” Id. at 327. Plaintiffs were granted two
weeks to produce the discovery. Id. at 328. The order imposed another monetary
sanction, this time in the amount of $5,302.51, against plaintiffs and their
attorney to compensate defendants for their costs and attorney fees in attempting
to obtain discovery. Id. at 329. In addition, the magistrate judge issued the
following warning: “Any failure of plaintiffs to fully comply with the demands
and deadlines set forth above will be considered grounds for a recommendation of
dismissal of this action in its entirety . . . .” Id.
On the due date, plaintiffs produced releases for the medical records rather
than the records themselves. The releases were signed only by Ceta Dochterman
and were not notarized. By then, however, Celece had attained the age of
majority, so her signature was required to obtain her records. Celece did not
provide any releases. Her attorney candidly admitted that Celece had failed to
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maintain contact with him. Defense counsel informed plaintiffs’ attorney that the
releases were inadequate to obtain the records, but plaintiffs did not correct the
problem.
Plaintiffs then filed notices to depose several of defendants’ witnesses.
Defendants filed a motion to dismiss based on plaintiffs’ failure to comply with
the order to compel discovery. The motion also requested a protective order to
postpone their witnesses’ depositions until the motion to dismiss was resolved.
The protective order was granted.
The magistrate judge twice ordered plaintiffs to retain local Utah counsel
because their counsel of record was an attorney practicing in California. Id.
at 196, 329. Plaintiffs did not comply with those orders.
In considering the motion to dismiss, the magistrate judge reviewed the
history of discovery problems, including the two prior monetary sanctions and the
two warnings that failure to comply could result in dismissal. He determined that
plaintiffs had failed to comply with court orders for discovery and that their
conduct had “frustrated the litigation, precluded defendants from being able to
prepare in this case and precluded a resolution on the merits.” Id. at 392-93.
Accordingly, the magistrate recommended that the case be dismissed with
prejudice.
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The district court conducted a de novo review of the recommendation, the
objections thereto, the motions and briefs, and the record. It found that plaintiffs
had been warned that their case would be dismissed if they failed to comply with
the order to compel discovery, and that plaintiffs had not complied with the
discovery order or the orders to retain associate local counsel. The court adopted
the magistrate judge’s recommendation, and dismissed the case with prejudice on
October 24, 2001.
Plaintiffs appeal, claiming that they complied with the order to compel
discovery by providing the medical releases signed by Ceta Dochterman. They
also assert that (1) dismissal was not warranted under the circumstances, (2) the
court was without jurisdiction to dismiss the case because defense counsel had not
complied with the rule to meet and confer about discovery disputes, (3) the court
abused its discretion and acted in excess of its jurisdiction in granting the
protective order, and (4) the monetary sanction of $5,302.51 was not supported by
any evidence and was awarded in violation of court rules.
Discussion
“A district court undoubtedly has discretion to sanction a party for failing
to prosecute or defend a case, or for failing to comply with local or federal
procedural rules.” Reed v. Bennett , 312 F.3d 1190, 1195 (10th Cir. 2002). This
discretion includes dismissal for discovery violations. Archibeque v. Atchison,
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Topeka & Santa Fe Ry. Co. , 70 F.3d 1172, 1174 (10th Cir. 1995). Because
dismissal is a severe sanction, it should be imposed only if a “lesser sanction
would not serve the ends of justice.” Reed , 312 F.3d at 1195 (quotation omitted).
In evaluating whether dismissal is an appropriate sanction, the district court
should consider the following factors: (1) the degree of actual prejudice to the
opposing party, (2) the degree of interference with the judicial process, (3) the
litigant’s culpability, (4) whether the litigant was warned in advance that
dismissal was a likely sanction, and (5) whether a lesser sanction would be
effective. Gripe v. City of Enid , 312 F.3d 1184, 1188 (10th Cir. 2002) (citing
Ehrenhaus v. Reynolds , 965 F.2d 916, 921 (10th Cir. 1992)).
Plaintiffs maintain that the dismissal order must be reversed because it was
based on the magistrate judge’s erroneous conclusion that they had failed to
comply with the order compelling discovery. An abuse of discretion can occur
when the district court relies on clearly erroneous findings of fact. Kiowa Indian
Tribe of Okla. v. Hoover , 150 F.3d 1163, 1165 (10th Cir. 1998). Plaintiffs
maintain that they complied with the order by submitting releases signed by Ceta
Dochterman. They do not claim, however, that these releases were sufficient to
permit defendants to obtain the records. Their argument ignores both the spirit
and the letter of the magistrate judge’s order compelling discovery, which stated
that any authorization must “provid[e] for the release of all such records to
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defendants.” Appellant’s App. at 327. We conclude that the district court’s
determination that plaintiffs failed to comply with discovery orders was not
clearly erroneous.
As for plaintiffs’ argument that the sanction of dismissal was not
warranted, the record demonstrates that the district court’s decision to dismiss the
case was based on the appropriate considerations. The court noted that plaintiffs’
failure to provide discovery had inconvenienced and prejudiced defendants and
the court. The magistrate judge found that plaintiffs’ conduct had “frustrated the
litigation, precluded defendants from being able to prepare in this case and
precluded a resolution on the merits.” Id. at 393. Furthermore, plaintiffs’ failure
to retain local associate counsel made the litigation more cumbersome and
expensive.
Plaintiffs failed three times to appear for their own depositions, Celece
refused to cooperate with her attorney, and the medical records were never made
available to defendants. The court twice clearly warned plaintiffs that failure to
comply with orders of court, particularly discovery orders, could result in
dismissal of their case. Lesser sanctions of monetary payments were imposed
twice, but plaintiffs continued to disobey court orders. Accordingly, the district
court acted within its discretion in dismissing the case.
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Plaintiffs next assert that the district court was without jurisdiction to
dismiss the case because defense counsel had not complied with Fed. R. Civ. P.
37(a)(2)(B) by meeting and conferring with plaintiff’s attorney. Rule 37(a)(2)(B)
requires a good-faith conference or attempt to confer “in an effort to secure the
information or material without court action.” In fact, the attorneys met in person
for this purpose following a hearing. An impediment to conferring was the fact
that plaintiffs’ counsel resided in California. Defense counsel sent numerous
written explanations of discovery disputes, requesting resolution. Under these
circumstances, we hold that defendants complied with Rule 37(a)(2)(B).
Plaintiffs also claim that the magistrate judge abused his discretion and
acted in excess of his jurisdiction in granting the protective order postponing
depositions of defendants’ witnesses until the motion to dismiss was resolved.
We review a discovery protective order for an abuse of discretion. Harris Mkt.
Research v. Marshall Mktg. & Communications, Inc. , 948 F.2d 1518, 1526 (10th
Cir. 1991). Plaintiffs assert that the court gave no reason for the protective order
and that they were prejudiced because they were not allowed to develop evidence.
This argument is disingenuous. The magistrate judge stated that discovery would
be stayed pending resolution of the motion to dismiss. Appellant’s App. at
439-40. Moreover, plaintiffs do not argue that discovery would have assisted
them to resist the motion to dismiss. We conclude that the magistrate judge did
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not abuse his discretion in staying discovery pending a ruling on the dismissal
motion.
Finally, we reject plaintiffs’ claim that the monetary sanction of $5,302.51
was not supported by any evidence and was awarded in violation of court rules.
Defense counsel’s affidavit stated that defendants incurred that amount in
attempting to depose plaintiffs and filing pleadings necessitated by plaintiffs’
discovery violations. See Appellees’ Supp. App. at 97-99. To the extent
plaintiffs argue that Rule 37(a)(2)(B), requiring attorneys to confer on discovery
matters, should invalidate this award, we have held above that the requirements of
Rule 37(a)(2)(B) were met.
The judgment of the United States District Court for the District of Utah is
AFFIRMED.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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