United States v. One 1987 BMW 325

February 18, 1993
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 92-1827

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

ONE 1987 BMW 325, ETC., ET AL.,

Defendants.

JOHN TENAGLIA,

Claimant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Norman H. Stahl, U.S. District Judge]

Before

Selya, Circuit Judge,

Coffin, Senior Circuit Judge,

and Cyr, Circuit Judge.

Thomas Kerner for appellant.

Michael J. Gunnison, Assistant United States Attorney, with

whom Jeffrey R. Howard, United States Attorney, was on brief, for

appellee.

February 18, 1993

SELYA, Circuit Judge. This appeal arrives at our
SELYA, Circuit Judge.

doorstep after meandering along the byways that link the

Supplemental Rules for Certain Admiralty and Maritime Claims to

the Federal Rules of Civil Procedure. We conclude that, given

the way in which the Admiralty Rules and the Civil Rules

intersect, the district court's order striking appellant's claim

for failure to answer interrogatories was premature.

Consequently, we reverse the order, vacate the judgment, and

remand for further proceedings.

I.

Historical Prolegomenon

On March 27, 1991, police officer Sean Billert arrived

at the scene of a two-car accident in North Conway, New

Hampshire. One of the vehicles involved was a 1987 BMW operated

by claimant-appellant John Tenaglia. In the course of a routine

interview, Officer Billert caught the scent of burnt marijuana on

Tenaglia's clothing. A search of the BMW revealed traces of

marijuana and assorted drug paraphernalia. Authorities removed

the car to a police compound and, during a further search,

discovered $14,667 in used bills plus the key to a safe-deposit

box. When opened, the box yielded an additional $16,000 in cash.

The State undertook to prosecute Tenaglia on a

narcotics charge. Meanwhile, the federal government notified him

that it planned to commandeer the cash and car. Toward that end,

the government filed a forfeiture complaint in federal district

court on July 3, 1991. See 21 U.S.C. 881(a)(4), (a)(6) (1988).

2

The complaint, festooned with ninety-nine interrogatories,1

alleged that the cash represented the avails of narcotics

trafficking; that the vehicle had been purchased with drug

proceeds; and, moreover, that it had been used in furtherance of

a drug-related crime.

Tenaglia received the forfeiture suit papers on August

9, 1991. He promptly filed a claim and an answer to the

complaint but boycotted the interrogatories. On September 18,

the government moved to strike the claim because the

interrogatories remained unanswered. Tenaglia responded by

requesting a stay of proceedings pending the outcome of the state

criminal prosecution, or in the alternative, an order sealing the

record in the forfeiture action so that any admissions could not

be used against him. Tenaglia subsequently answered two of the

interrogatories, contending that those answers, without more,

sufficed to clarify his standing.

On May 12, 1992, the district court granted the

government's longstanding motion to strike. The court ruled that

Tenaglia, by failing to answer the interrogatories, had not

perfected the right to prosecute his claim. The BMW and the cash

1The interrogatories were served with the complaint pursuant
to Adm. Rule C(6), which provides in pertinent part:

The claimant of property that is the subject
of an action in rem shall file a claim within
10 days after process has been executed . . .
. At the time of answering the claimant
shall also serve answers to any
interrogatories served with the complaint.
In actions in rem interrogatories may be so
served without leave of court.

3

were declared forfeit. This appeal ensued.

On appeal, Tenaglia argues that the lower court, for

all intents and purposes, dismissed his claim in contravention of

Fed. R. Civ. P. 37 (which, as Tenaglia reads it, does not permit

dismissal as an initial sanction for failure to answer

interrogatories).2 The government counterattacks on three

fronts. First, it asserts that, because Tenaglia did not

adequately direct the district court's attention to Civil Rule 37

during the course of the proceedings below, he is precluded from

relying on the rule at this juncture. Second, the government

asserts that Civil Rule 37 is inapposite in respect to

interrogatories propounded pursuant to Adm. R. C(6). Third, the

government asserts that, even considering Civil Rule 37, the

district court's order is supportable. We limn the appropriate

standard of review and thereafter address Tenaglia's appeal by

tracking the government's assertions.

II.

2The district court, technically speaking, struck Tenaglia's
claim, as opposed to dismissing it. We think, however, that this
is a distinction bereft of any meaningful difference. Although
in many cases the upshot of dismissal is more grievous than the
upshot of an order to strike, dismissal and the striking of a
claim are quintessentially synonymous in the forfeiture context.
This is so because either order results in the failure of the
entire claim. See United States v. Contents of Accounts Nos.

3034504504 and 144-07143, Etc., 971 F.2d 974, 978 & n.3 (3d Cir.

1992), petition for cert. filed (Jan. 6, 1993). Thus, we treat

the district court's order to strike Tenaglia's entire claim as
the functional equivalent of a dismissal order. We note,
moreover, that under Fed. R. Civ. P. 37, neither dismissal nor
striking of a pleading is a permissible sanction for a delay in
making discovery unless the offending party first violates a
preexisting court order.

4

Standard of Review

It is within the trial court's fief to choose

appropriate sanctions when a party does not comply with

procedural rules. See Media Duplication Servs., Ltd. v. HDG

Software, Inc., 928 F.2d 1228, 1238 (1st Cir. 1991)

("Considerable discretion is vested in a district judge to decide

whether to impose sanctions and what form they should take.");

Jensen v. Frank, 912 F.2d 517, 524 (1st Cir. 1990) (similar);

Damiani v. Rhode Island Hosp., 704 F.2d 12, 15 (1st Cir. 1983)

(similar). An appellate court must step softly in such

precincts, taking pains not simply to substitute its judgment for

that of the district court and intervening only if it is

persuaded that the district court overspilled fairly wide

discretionary bounds. See National Hockey League v. Metropolitan

Hockey Club, Inc., 427 U.S. 639, 642 (1976); Velazquez-Rivera v.

Sea-Land Serv., Inc., 920 F.2d 1072, 1075 (1st Cir. 1990);

Fashion House, Inc. v. K Mart Corp., 892 F.2d 1076, 1081-82 (1st

Cir. 1989). All in all, a party protesting an order in respect

to sanctions bears a formidable burden in attempting to convince

the court of appeals that the lower court erred.

Deference, however, is not to be confused with

automatic acquiescence. We will not rubber stamp sanction

decisions entered in the district court. Media Duplication, 928

F.2d at 1238. Rather, in examining the imposition of sanctions

for possible abuses of discretion, we focus our review

particularly on whether a "material factor deserving significant

5

weight [was] ignored," whether "an improper factor [was] relied

upon," or whether "when all proper and no improper factors [were]

assessed . . . the court [made] a serious mistake in weighing

them." Independent Oil & Chem. Workers, Inc. v. Proctor & Gamble

Mfg. Co., 864 F.2d 927, 929 (1st Cir. 1988) (collecting cases).

III.

Analysis

A.

Procedural Default

As a threshold matter, the government asserts that

Tenaglia waived any reliance on Civil Rule 37 by failing to bring

the rule to the attention of the district court. After carefully

examining the record, we conclude that, on balance, Tenaglia

presented the issue in a manner barely sufficient to put the

theory in issue and thereby to avoid a procedural default.

To be sure, the question of waiver is borderline.

Tenaglia did not confront the district court with chapter and

verse anent the Rule 37 argument. Nonetheless, he did challenge

the court's use of its discretion to dismiss in the first

instance without prior adjudication of his generic objections to

the wave of interrogatories; and on several occasions, he asked

the court to consider the objections, meanwhile enlarging the

time for responding to the interrogatories, before dismissing the

claim. Tenaglia buttressed this point by citing cases in which

orders compelling discovery preceded dismissal. See, e.g.,

United States v. One 1971 Corvette Stingray, Etc., No. 89-5398,

6

1989 U.S. Dist. LEXIS 15079 (E.D. Pa. Dec. 14, 1989).

In fine, while Tenaglia's proffer was by no means a

paradigm of lucidity, neither did it require the district court

to sift an ocean of prose for a seashell's worth of reasoning.

In some cases, perhaps, these meager efforts would not serve.

But, in assessing the adequacy of Tenaglia's proffer, we are

keenly aware that "dismissal 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) (internal quotation marks and citation

omitted); accord Marx v. Kelly, Hart & Hallman, P.C., 929 F.2d 8,

10 (1st Cir. 1991); Velazquez-Rivera, 920 F.2d at 1075. We are

mindful, too, that forfeiture is a harsh medium and that the

disposition-on-the-merits policy is, therefore, particularly

potent here. See United States v. 384-390 West Broadway, 964

F.2d 1244, 1248 (1st Cir. 1992) (recognizing that "forfeitures

are strong medicine, disfavored in our jurisprudence"); United

States v. $38,000 in U.S. Currency, 816 F.2d 1538, 1547 (11th

Cir. 1987) (collecting cases); cf. United States v. 1 Street A-1,

885 F.2d 994, 1001 (1st Cir. 1989) (acknowledging, in a

forfeiture context, that "to the greatest extent possible

controversies are [to be] decided on the merits" and therefore

excusing potential procedural default). And, finally, given the

surge in attempted forfeitures, the importance of the issue for

future cases is itself a factor cutting sharply in favor of

resolving it here and now. Cf. United States v. La Guardia, 902

7

F.2d 1010, 1013 (1st Cir. 1990) (excusing procedural default and

considering purely legal issue not raised below where the issue

was significant and likely to recur, such that addressing it

would advance the administration of justice); United States v.

Krynicki, 689 F.2d 289, 292 (1st Cir. 1982) (similar).

Considering the nature and circumstances of this case, we

conclude that the argument regarding the necessity of an

intervening court order before dismissal for failure to make

discovery was sufficiently raised below.

B.

The Interplay Between the Two Sets of Rules

In 1966, Congress abolished the former Rules of

Practice in Admiralty and Maritime Cases and replaced them with

the Supplemental Rules for Certain Admiralty and Maritime Claims.

The scope of the new rules belied their title because they

extended beyond maritime actions to actions in rem, see Adm. R.

A(2), C, and, in particular, to forfeiture actions. See, e.g.,

21 U.S.C. 881(b). In minting the Admiralty Rules, however,

Congress did not completely remove in rem proceedings from the

purview of the Civil Rules.3 Rather, Congress decreed that:

The general Rules of Civil Procedure for
the United States District Courts are also
applicable to [in rem] proceedings except to
the extent that they are inconsistent with

3The Court made it very clear that the former admiralty
rules were not meant to be comprehensive codes regulating every
aspect and detail of federal court practice in cases to which
they applied. See Miner v. Atlass, 363 U.S. 641, 648 (1960). We

are confident that the new admiralty rules share this
characteristic.

8

these Supplemental Rules.

Adm. R. A.

Pursuant to this direction, we have consistently looked

to the Civil Rules to fill gaps in the Admiralty Rules. See,

e.g., 384-390 West Broadway, 964 F.2d at 1247 n.4 (explaining

that "[r]esort . . . may be had to the Federal Rules of Civil

Procedure for interstitial matters or where the Admiralty Rules

are silent . . ."); United States v. 116 Emerson St., 942 F.2d

74, 77 (1st Cir. 1991) (similar); In re Northern Transatlantic

Carriers Corp., 423 F.2d 139, 140 (1st Cir. 1970) (holding that

"[a]ll civil rules, except where impertinent," apply in admiralty

cases); see also 1 Street A-1, 885 F.2d at 998 & n.13 (applying

Fed. R. Civ. P. 4 in forfeiture suit); United States v. $149,345

U.S. Currency, 747 F.2d 1278, 1280, 1281 (9th Cir. 1984)

(applying Fed. R. Civ. P. 37 and 60 in forfeiture suit); cf.

$38,000 in U.S. Currency, 816 F.2d at 1547 n.20 (noting general

applicability of Civil Rules to forfeiture actions but rejecting

specific application of Fed. R. Civ. P. 12(f) as inconsistent

with Adm. R. E(2)); United States v. $39,000 in Canadian

Currency, 801 F.2d 1210, 1216 (10th Cir. 1986) (similar).

Admiralty Rule C provides an abecedarian roadmap for

the travel of forfeiture proceedings. An action is initiated by

the filing of a sworn complaint. Adm. R. C(2). Persons claiming

an interest in the targeted property have ten days within which

to file a claim and twenty days thereafter within which to file a

sworn answer, together with "answers to any interrogatories

9

served with the complaint." Adm. R. C(6). However, the

Admiralty Rules are completely bereft of guidance concerning what

measures may be appropriate when parties fail to serve answers to

interrogatories in a full and timely fashion. This deficiency is

part of a larger pattern; read in their entirety, the Admiralty

Rules make no provision whatever for discovery sanctions.

In light of the Admiralty Rules' opacity on this

subject, Adm. R. A directs our attention to the Civil Rules and,

in particular, to Fed. R. Civ. P. 37.4 The government seemingly

concedes that Civil Rule 37 requires that a court order

specifically compelling answers to interrogatories be entered,

and then transgressed, before dismissal can ensue. The rule

does, indeed, operate in that manner.5 See R.W. Int'l Corp. v.

4Fed. R. Civ. P. 37 is entitled "Failure to Make or
Cooperate in Discovery: Sanctions." It is the rule to which
federal courts must resort in addressing a litigant's
noncompliance with Fed. R. Civ. P. 33 (entitled "Interrogatories
to Parties").

5Of particular pertinence here is the rule's admonition
that:

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 . . . .

10

Welch Foods, Inc., 937 F.2d 11, 15 (1st Cir. 1991) (collecting

cases).

The next question is whether, as the government

asserts, the quoted portion of Civil Rule 37 is antagonistic to

some provision of the Admiralty Rules. The government

hypothesizes such a clash between Civil Rule 37 and Adm. R. C(6)

by reading the latter rule as allowing dismissal in the first

instance if interrogatories are served thereunder and then

ignored. But, the government offers no case law supportive of

this curious interpretation. It relies entirely on forfeiture

cases in which courts have from time to time struck untimely

claims to targeted property. See, e.g., United States v. One

Dairy Farm, 918 F.2d 310, 311 (1st Cir. 1990). Such cases are

inapposite. For one thing, the Civil Rules, like the Admiralty

Rules, have uniformly been interpreted as empowering courts to

strike late-filed pleadings. See, e.g., Fantasy, Inc. v.

Fogerty, 664 F. Supp. 1345, 1347-48 (N.D. Cal. 1987). The same

does not hold true for delayed discovery. The Admiralty Rules,

as we have said, are silent on this topic, and the Civil Rules

contain specific provisions for a progression of remedies if a

court encounters footdragging in the answering of

interrogatories. For another thing, the reason for strictly

enforcing timeliness requirements anent the filing of claims is

"to force claimants to come forward as soon as possible after

forfeiture proceedings have begun." 116 Emerson St., 942 F.2d at

Fed. R. Civ. P. 37(b)(2).

11

77 (quoting 1 Street A-1, 885 F.2d at 1001). Once all the

parties are before the court, different considerations obtain.

At that juncture, the measured procedure crafted by Fed. R. Civ.

P. 37, which balances the interest in full and prompt discovery

against the presumption that disputes should be resolved on the

merits, seems a far more suitable instrument.

To sum up, the Admiralty Rules provide for discovery

via interrogatories but they provide no internalized mechanism

for handling a party's failure to answer interrogatories fully

and/or punctually. Given the imperative of Adm. R. A and the

great similarity in language between Adm. R. C(6) and Fed. R.

Civ. P. 33,6 it seems natural to look to Civil Rule 37 to fill

the hole in the Admiralty Rules' interrogatory provisions. Civil

Rule 37 provides what the Admiralty Rules do not: a mechanism

for addressing failures to cooperate in discovery. Discerning no

hint of inconsistency, we hold that the use of discovery

sanctions in forfeiture actions is properly governed by the

pertinent provisions of the Federal Rules of Civil Procedure.

Accordingly, the imposition of sanctions for a claimant's failure

or refusal to answer interrogatories in a forfeiture case must be

judged under the jurisprudence of Civil Rule 37.

C.

The Propriety of the District Court's Order

We turn last to the question of whether the district

6Except for the fact that Adm. R. C(6) allows the government
first crack at propounding interrogatories, it tracks the
prescriptive language of Fed. R. Civ. P. 33.

12

court's order in this case was within the bounds of its

discretion. In this regard, the government hangs the case for

affirmance on two hooks. First, the government tells us that the

order met the requirements of Fed. R. Civ. P. 37. Next, the

government argues in the alternative that the district court had

inherent power to order a dismissal here. We address these

points in order.

1. The Rule 37 Framework. Civil Rule 37 erects a two-
1. The Rule 37 Framework.

tiered framework for addressing a litigant's failure to cooperate

in discovery. First, the party propounding interrogatories must

seek a court order compelling discovery. It is only if the

offending party refuses to comply with such an order that the

court may choose a sanction as stern as dismissing the action or

striking the offender's pleadings. See Fed. R. Civ. P. 37(b)(2),

(d). Thus, Civil Rule 37 does not permit the district court to

jump directly to the most dire sanctions without essaying an

intermediate first step. To the contrary, Rule 37's "language

clearly requires two things as conditions precedent to engaging

the gears of the rule's sanction machinery: a court order must

be in effect, and then must be violated, before the enumerated

sanctions can be imposed." R.W. Int'l, 937 F.2d at 15

(collecting cases).7 This case aptly illustrates the value of

the two-stage process: a motion to compel would have given the

7We think this holding is altogether consistent with the
Ninth Circuit's position in $149,345 U.S. Currency, 747 F.2d at

1280 although there, a fresh order to compel was unnecessary
because of the res judicata effect of an order to compel entered
in an earlier case. See id.

13

court an opportunity to address Tenaglia's Fifth Amendment and

relevancy concerns, to enter an order fixing a firm date for

compliance, and, if necessary, to punish Tenaglia's dilatory

conduct by awarding counsel fees and costs. See Fed. R. Civ. P.

37(a)(4). If Tenaglia then persisted in giving a cold shoulder

to the compliance date, the court would be in a position to

exercise its discretion in choosing an appropriate sanction from

those provided in Rule 37(b), including dismissal.

Here, neither of the precedent conditions was met.

Instead, the government tried a shortcut, moving to strike

Tenaglia's claim for failure to comply with Adm. R. C(6) without

first seeking to compel responses to the interrogatories and

without making the slightest effort to observe Fed. R. Civ. P.

37's procedural strictures. Seven months after the government

filed its motion, the district court adopted the government's

reasoning in large part, concluding that Tenaglia "lack[ed] the

standing to contest the forfeiture at issue" because he had

failed to answer the interrogatories. Based on that conclusion,

the court struck the claim without first entering a discovery

order and subsequently witnessing its breach, as Rule 37

requires. In failing to account for this factor, the district

court overstepped its discretion when it struck Tenaglia's claim

in the first instance.8 See Aggarwal v. Ponce Sch. of Medicine,

8In point of fact, because the government never moved to
compel Tenaglia's compliance, the court had no discretion under

Rule 37 to strike Tenaglia's claim for failure to make due
discovery.

14

745 F.2d 723, 727 (1st Cir. 1984) ("The cask which encases a

judge's discretion, though commodious, can be shattered when . .

. the trial court misconceived or misapplied the law . . . .").

2. Inherent Powers. In an effort to dodge the
2. Inherent Powers.

operation of Civil Rule 37, the government argues that, in any

event, no reference to the Civil Rules is exigible because the

courts can use inherent powers to deal appropriately with

procedural problems on a case-by-case basis. Although it is true

that a district court possesses the inherent power to dismiss an

action where there has been an egregious abuse of process, see,

e.g., Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118-19 (1st Cir.

1989) (holding that the district court possessed inherent power

to dismiss the complaint after discovery of plaintiff's ongoing

fraud on the court); cf. Chambers v. NASCO, Inc., 111 S. Ct.

2123, 2133 (1991) ("outright dismissal of a lawsuit . . . is a

particularly severe sanction, yet is within the court's

discretion") (citation omitted), we see no evidence here of such

straitened circumstances.

Furthermore, there are limits to a court's inherent

powers, particularly in instances where the Civil Rules are on

all fours. When, as in this case, the Civil Rules limit the

nature of the sanction that can be imposed, a court may not use

its inherent powers to circumvent the Rules' specific provisions.

See Bank of Nova Scotia v. United States, 487 U.S. 250, 254

(1988) (holding that a court cannot rely on supervisory power to

avoid the clear mandate of a procedural rule); cf. Chambers, 111

15

S. Ct. at 2136 (allowing use of inherent powers where Civil Rules

did not limit the nature of the sanction which could be imposed).

Consequently, even where district courts have invoked their

inherent powers to dismiss an action, the dismissal has typically

followed the violation of a preexisting court order. See, e.g.,

Figueroa Ruiz, 896 F.2d at 648.

We note, moreover, that the court below expressly

relied on Adm. R. C(6) and did not purport to invoke or even

mention its inherent powers. Under these circumstances, we are

disinclined to rummage through the record searching for a likely

unusable needle in a haystack never explored by the trial court.

Doing so would be injudicious and, to our way of thinking, would

needlessly threaten the delicate balance struck by Civil Rule 37.

See Bank of Nova Scotia, 487 U.S. at 255 ("The balance struck by

the Rule . . . may not casually be overlooked 'because a court

has elected to analyze the question under the supervisory

power.'") (quoting United States v. Payner, 447 U.S. 727, 736

(1980)); see also R.W. Int'l, 937 F.2d at 20 (refusing "to debate

the entirely hypothetical question of whether the action might

lawfully have been dismissed in the exercise of the court's

inherent powers").

IV.

Conclusion

We need go no further.9 Because the Admiralty Rules

9Tenaglia requests that we direct the district court to
issue a protective order enabling him simultaneously to answer
the interrogatories and protect his Fifth Amendment rights. We

16

contain no inconsistent provisions, Civil Rule 37 provides the

appropriate mechanism to which parties who find their discovery

stalled in forfeiture cases must resort. And, because the

district court failed to abide by the analytic strictures of Fed.

R. Civ. P. 37 when exercising its discretion here, its order and

judgment cannot stand.

The order striking appellant's claim is reversed, the

judgment below is vacated, the claim is reinstated, and the case

is remanded to the district court for further proceedings. No

costs.

believe that this is a matter to be considered ab initio in the

trial court and Tenaglia is, of course, free to raise it on
remand.

17