United States Court of Appeals,
Fifth Circuit.
No. 94-60008
Summary Calendar.
Beverly WOODSON, as Executrix of the Estate of Hayes Hudson,
Deceased, Plaintiff-Appellant,
v.
SURGITEK, INC., Medical Engineering Corp., and Bristol-Myers
Squibb Co., Defendants-Appellees.
July 19, 1995.
Appeals from the United States District Court for the Southern
District of Texas.
Before SMITH, EMILIO M. GARZA and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
Plaintiff appeals the district court's judgment dismissing the
plaintiff's complaint with prejudice. The district court ordered
the dismissal under its inherent power as a sanction for delays
caused by the plaintiff. Finding that the district court did not
abuse its discretion, we affirm.
I.
Unfortunately, to review the sanction of dismissal ultimately
imposed by the district court, we must recount the long and
tortured course this litigation has taken. On December 4, 1991,
the plaintiff, Hayes Hudson,1 through his attorney, Veronica Davis,
1
Mr. Hudson died shortly before this appeal was perfected,
and Beverly Woodson has been substituted in his place as
executrix of his estate. However, the relevant proceedings in
the district court occurred during Mr. Hudson's lifetime.
Therefore, although this appeal is now being pursued on behalf of
Mr. Hudson's estate, we refer to Mr. Hudson as the plaintiff.
1
filed suit in the 56th Judicial District Court of Galveston County,
Texas. Hudson alleged that the defendants, Surgitek, Inc., Medical
Engineering Corporation, and Bristol-Myers Squibb, were guilty of
negligence and gross negligence in the manufacturing and marketing
of penile prosthetic devices, two of which had been surgically
implanted into plaintiff's body and failed. The implantation of
these devices was done, apparently, to counteract impotence caused
by the advancement of plaintiff's severe diabetes.
On January 15, 1992, the defendants removed the case to
federal district court based on diversity of citizenship and it was
assigned to Judge Lake of the Southern District of Texas, Houston
Division. The case was ordered to proceed under the Cost and Delay
Reduction Plan of the Civil Justice Reform Act providing for
accelerated discovery. However, the record reflects a conspicuous
lack of activity until June 3, 1992, when a joint
discovery/management plan was filed. All parties admitted that the
accelerated discovery had not occurred. The defendants' counsel
claimed inadvertence while the plaintiff's counsel, Veronica Davis,
claimed that her personal illness was the reason for noncompliance.
At a scheduling conference held June 10, 1992, Judge Lake
granted the plaintiff's unopposed motion to transfer venue, and
transferred this case to the Galveston Division of the same
district. At the same time, Judge Lake entered a docket control
order which, among other things, set December 18, 1992, as the
deadline for the completion of discovery. In that status, the case
was transferred to the docket of Judge Samuel B. Kent.
2
After the transfer of venue, the district court entered an
order announcing that a scheduling conference would be held on
November 5, 1992. Again, the record reflects a complete lack of
activity prior to the scheduling conference. A new docket control
order was entered, which provided, among other things, that
plaintiff would designate his expert witnesses no later than
December 18, 1992, that defendants would designate their expert
witnesses no later than January 29, 1993, that discovery would be
completed by March 5, 1993, and that trial would begin March 22,
1993. Naturally, these events did not come to pass as scheduled.
On January 5, 1993, plaintiff filed a pleading entitled
"Request for a Jury Trial and Change of Trial Date," which alleged
that plaintiff had suffered medical complications "believed to be
the result of prosthetic fluid leaking into the body of the
plaintiff," which required additional medical confirmation. Since
the alleged leaking fluid was a new development, unknown at the
time of the filing of the original complaint, and was possibly
"critical to the instant case," plaintiff requested a continuance.
On the same day of the filing of the request for continuance, the
plaintiff filed a "Motion to Compel" challenging the defendants'
asserted objections to her interrogatories and requests for
production. This pleading, filed by Ms. Davis, also included
allegations of defense counsel's bad faith; it was at this point,
according to the district court, that the proceedings began to
disintegrate.
The plaintiff's motions were referred to a magistrate judge
3
and were heard on January 25, 1993. Because of the plaintiff's
apparently poor medical condition, the magistrate postponed ruling
on the request for continuance until February 11, 1993. The
parties were instructed to initiate a telephone conference on that
date to update the Court on the plaintiff's medical status. The
magistrate extended the defendants' expert witness designation
deadline until February 8, 1993.
The magistrate granted in part and denied in part plaintiff's
Motion to Compel and ordered answers to the interrogatories to be
made by February 8, 1993, conditioned upon plaintiff's execution of
a confidentiality agreement. Because of the nearing trial date,
the magistrate scheduled a March 2, 1993 hearing to address, as
necessary, any lingering discovery problems. Finally, because
plaintiff's jury request was not timely, and was opposed by the
defendants, the magistrate solicited a prompt motion from the
plaintiff pursuant to Federal Rule of Civil Procedure 39(b).
On January 26, 1993, the defendants filed an opposed motion
for leave to amend their original answer to respond more
specifically to the allegations of plaintiff's complaint and to
clarify and expand the affirmative defenses they wished to assert.
The magistrate granted defendants' motion, and the amended answer
was filed that same day.
On February 5, 1993, the defendants filed a "Motion to Strike
Plaintiff's Late Designated Experts or, in the alternative, to
Compel Production of Experts' Reports." The motion also contained
a request for continuance. The motion alleged that plaintiff's
4
expert witnesses were designated several days too late and,
regardless, that no expert reports had been supplied. The docket
control order specifically required that the designation of expert
witnesses be accompanied by the contemporaneous tender of each
expert's preliminary written report. The magistrate judge
immediately attempted to schedule a hearing on the motion by
telephone. However, plaintiff's counsel Davis was unavailable at
that time and then failed to contact the Court, as ordered, by noon
of that day in order to coordinate the hearing. In fact, Davis
never contacted the magistrate by phone, electing instead to
forward a written response by facsimile to the clerk on February 8,
1993.
The plaintiff's written response stated that expert reports
had not been produced because none had been prepared, with the
exception of the implantation and explantation reports of Dr.
Michael Warren, the surgeon who performed those procedures.
Plaintiff's counsel argued that plaintiff should not be required to
produce a document that is not in existence. Ms. Davis apparently
offered no explanation for the failure to have such reports
prepared except that because the plaintiff was still undergoing
treatment preparation of such reports would be premature.
The magistrate excused the tardy designation, but required
written reports from plaintiff's identified experts, Drs. Warren
and Rogers, to be provided no later that February 16, 1993, with
the warning that failure to provide the reports would result in the
non-complying expert being stricken. The defendants' expert
5
witness designation deadline was extended to March 5, 1993, and
discovery was extended to March 17, 1993. The defendants' request
for a continuance was denied, but the due date for the joint
pretrial order and the date of the pretrial conference were
extended. Both parties' requests for sanctions were denied.
On February 9, 1993, the plaintiff filed a "Motion for
Protective Order/Motion to Quash Taking of Depositions,"
complaining that the depositions of Drs. Warren and Rogers and
others were scheduled without reasonable notice. The motion also
alleged that the plaintiff, health permitting, intended to have Dr.
Warren remove the penile device still in plaintiff's body prior to
trial and that the defendants had withheld from production the
first penile device thereby frustrating plaintiff's ability to
determine the cause of his medical problems. Plaintiff's counsel
contended that these two problems needed to be solved before the
doctors' depositions would be completely meaningful. The motion
also challenged the defendants' attempt to take Davis' deposition
on the issue of attorneys' fees.
The defendants filed a response to plaintiff's motions the
same day. The defendants did not object to the postponement of the
scheduled depositions, but alleged that Davis had rebuffed all
efforts by defense counsel to confer prior to the filing of the
motion regarding alternate mutually convenient depositions dates.
The defendants attached as an exhibit to their response a letter
from defense counsel to Ms. Davis dated February 8, confirming that
the depositions were cancelled and in the process of being
6
rescheduled.
The magistrate held a telephone conference on plaintiff's
motion to quash on February 10, 1993. The magistrate quashed the
doctors' depositions, subject to same being rescheduled prior to
March 5, 1993. The magistrate also quashed the deposition of Davis
in favor of submission of a detailed report of her attorney's fees
by March 12, 1993. In addition, the magistrate ordered the
defendants to produce the first prosthetic device.
On February 16, 1993, the plaintiff tendered an expert report
from Dr. Warren. The magistrate held a telephone conference the
same day on the defendants' claims that the tendered report was not
sufficient. The magistrate ordered that the report be supplemented
by the following day. The supplemental report was not provided,
however, until February 23, 1993. On February 23, the defendants'
moved to strike the plaintiff's designation of Dr. Warren as an
expert witness because of fatal deficiencies in his reports.2 The
plaintiff's designation of Dr. Rogers as an expert had already been
stricken because of plaintiff's failure to provide the required
expert witness report. Noting that an order striking Dr. Warren
would leave the plaintiff without any expert witness for trial, the
magistrate denied the defendants' motion.
2
The defendants contended that the reports, even as
supplemented, failed to contain any opinion of Dr. Warren
concerning the ultimate issues in the case: whether the devices
were defectively designed or manufactured, whether the defendants
were negligent, whether the defendants failed to warn plaintiff
of any matters relating to the devices, or why the devices had
failed. In its order dismissing the plaintiff's claims, the
district court noted that it had reviewed the reports and agreed
with the defendants' assessment.
7
On February 25, 1993, the magistrate again held a telephone
conference on the issue of depositions. The defendants had noticed
the depositions of the plaintiff and Dr. Warren on February 3,
1993, to be taken March 2 and March 3, respectively. The
magistrate ordered that the plaintiff appear for his deposition on
March 2. This order apparently not being satisfactory to the
plaintiff, plaintiff's counsel, Ms. Davis, filed a "Motion for
Protective Order/Motion to Quash Taking of Depositions/Objections
to Order of Magistrate" on March 1, 1993. The defendants filed a
response the same day.
Davis alleged that on February 23 (twenty days after the
depositions were noticed) she discussed possible dates for the
depositions and advised counsel of a personal doctor's appointment
that she might not be able to reschedule. She also stated that she
was not sure that plaintiff's health would permit the taking of his
deposition although he had recently been discharged from the
hospital. Additionally, Davis complained that during the telephone
conference of February 25, defense counsel had misrepresented facts
and failed to permit her sufficient time to present her argument.
The defendants challenged all of Davis' allegations.
Thus, the magistrate held another telephone conference on
March 1, 1993 on the matter of depositions. The magistrate ordered
plaintiff's deposition to commence on March 3, 1993 at 8:00 a.m.,
in Galveston, Texas, at a mutually acceptable site or at the
courthouse. The plaintiff's deposition was to recess to permit Dr.
Warren's deposition to be taken beginning at 1:00 p.m. the same
8
day. The plaintiff's deposition was to continue thereafter until
completed. The magistrate cautioned that plaintiff's nonappearance
would be excused only if his treating physician would confirm by
affidavit that his travel to Galveston was life-threatening.
On the morning of March 3, three attorneys representing the
various defendants appeared at the federal courthouse in Galveston
for plaintiff's deposition, having traveled from Dallas, San
Antonio, and New York, only to find that neither plaintiff nor
plaintiff's counsel was going to appear. Davis had notified the
magistrate's office that the plaintiff was not going to appear, but
gave no such notice to defense counsel. Davis had not provided an
affidavit from plaintiff's doctor. The magistrate, in the presence
of defense counsel, promptly initiated another telephone conference
with Davis. The magistrate ordered Davis to submit an affidavit
from plaintiff's doctor to verify that the plaintiff was unable to
attend his deposition for medical reasons. The magistrate
cautioned that failure to provide such an affidavit by the
following day would result in a recommendation that the plaintiff's
complaint be stricken. The deposition of Dr. Warren was ordered to
proceed in Davis' absence.
Shortly after the telephone conference, however, word was
received that Ms. Davis had contacted Dr. Warren and advised him
that he might be joined as a defendant in this litigation. Given
that Dr. Warren, plaintiff's only remaining expert witness, might
be joined as a party-defendant, the magistrate canceled his
deposition pending resolution of the proposed joinder. The
9
magistrate informed the parties that if he received the doctor's
affidavit, he would postpone the trial date and enter a stay of the
litigation to monitor the plaintiff's medical condition and to
allow for the sixty-day notice period required by the Texas Medical
Liability and Insurance Improvement Act.3 The magistrate also gave
the defendants until March 15, 1993 to file a motion for sanctions
to recoup the costs and attorneys' fees attendant to their
fruitless trip to Galveston.4
Late in the day on March 3, the magistrate received an
affidavit from the plaintiff's doctor confirming plaintiff's
inability to appear for his deposition. The next day, the
magistrate entered an order staying the litigation until June 4,
1993, at which time a scheduling conference was to be conducted.
The order specifically advised that the sixty-day notice period
would not be considered tolled by the stay, and that the questions
of sanctions and settlement might be addressed during the stay.
At the time the stay was ordered, there remained pending
motions filed by the plaintiff regarding discovery and joinder, as
well as plaintiff's objections to the magistrate's order allowing
the defendants to amend their answer. On March 15, 1993,
defendants filed a motion for sanctions, seeking $2,617.40 as
costs, expenses, and fees attendant to the Galveston trip. On the
same day, although the magistrate had not imposed sanctions at that
3
Texas Revised Civil Statutes, Art. 4590i § 4.01.
4
The sanctions, if any, were to be imposed on Davis
personally, pursuant to 28 U.S.C. § 1927.
10
time, the plaintiff filed "Plaintiff's Objections to Magistrate's
Order for Sanctions and Staying Further Litigation," which rehashed
Davis' complaints about defense counsel and asked for the
imposition of sanctions.
On April 15, 1993, the magistrate sent a memorandum to the
district court coordinator suggesting that a settlement conference
might be in order because of the incredible level to which this
litigation had deteriorated.5 Thus, at the magistrate's urging,
5
The memo was not intended to be a part of the file, but it
was placed on the correspondence side of the clerk's file and all
parties became aware of its existence. Because of the nature of
its ultimate disposition, the district court made all relevant
correspondence a part of the record. The memo read as follows:
DATE: April 15, 1993
TO: Louise Johnson
FROM: John R. Froeschner
RE: Hudson v. Surgitek, C.A. No. G-92-284
In early March I entered an Order staying any
proceedings in this cause by virtue of the Plaintiff's
poor health; by doctor's affidavit submitted to me he
was found physically unable to appear for deposition or
to appear for trial. My observations, for what they
are worth, lead me to believe that Plaintiff's counsel
is not financially able to pursue this claim against
the Defendant and, as a result, the case, which appears
to have substantial merit, has deteriorated to the
point where a disservice might be suffered by the
Plaintiff when the stay is lifted. I also believe that
the Defendants would very much like to settle this
matter but have not been able to get Plaintiff's
counsel to engage in any reasonable settlement
discussions.
I believe that if the cause were set for a
settlement conference sometime in May or early June (I
have a scheduling conference set for June 4 at 10:00
a.m.) that Judge Kent could get the matter settled
which is probably in the best interest of everyone
11
the district court scheduled a settlement conference for June 3,
1993. The magistrate rescheduled the post-stay scheduling
conference for June 3, 1993, commencing immediately after the
settlement conference, if necessary.
On June 3, 1993, the attorneys attended the settlement
conference and through admittedly aggressive negotiations, with the
district judge participating, agreed to settle the case for
$85,000.00.6 The next day, the district court entered an order
administratively closing the case without prejudice to any party to
re-open the matter if the settlement could not be perfected.
Pending final settlement, both parties' requests for sanctions were
deferred. As it turned out, however, this matter was far from
over.
On July 2, 1993, the defendants filed a motion to enforce the
settlement agreement, alleging that the plaintiff, through his
involved in this litigation.
My stay order specifically notified the parties
that I will deal with possible sanctions against
Plaintiff's counsel for her failure to notify defense
counsel not to appear in Galveston for the
Court-ordered deposition of her client and further that
the District Court might schedule a settlement
conference during the period of the stay. The sanction
request is ripe for consideration, but if Judge Kent
elects to have a settlement conference, I would prefer
to leave that matter unresolved until the completion of
the settlement conference. I would be happy to do the
settlement conference but I don't think I would be able
to get the matter resolved; I think Judge Kent can.
I you have any questions, please call, and please
keep me advised.
6
The settlement negotiations held June 3 were conducted off
the record.
12
counsel Davis, refused to settle any claim he might have relating
to silicone poisoning unless the defendants would pay $210,000.00.
The defendants sought specific performance of the settlement
agreement and attorneys' fees attendant to the motion. On the same
day, the district court entered an order granting the defendants'
motion to enforce the settlement.
On July 6, 1993, Davis filed the Plaintiff's "Motion to
Enforce Settlement Agreement as Verbalized or Motion to Re-Open
Case," alleging that she had expressly reserved the right to pursue
the silicone cause of action. She asked the district court to
force the defendants to pay the $85,000.00 while preserving the
plaintiff's right to pursue the silicone claim or, in the
alternative, to re-open the case. The district court entered
another order, this time on plaintiff's motion, to enforce the
settlement, and ordering execution of a "full and final release ...
releasing all claims Plaintiff has arising from his allegedly
failed penile implant."
On July 23, 1993, the defendants filed their "First Amended
Motion to Enforce Settlement Agreement" because, despite the
district court's orders of July 2 and July 6, Ms. Davis still
refused to execute any release that failed to preserve plaintiff's
right to pursue a future cause of action for silicone poisoning.
This motion prompted the July 26 filing of "Plaintiff's Second
Motion to Enforce Settlement Agreement as Verbalized or Motion to
Re-Open Case," which again argued that the silicone poisoning claim
had been specifically exempted from the settlement. The plaintiff
13
seized upon the language in the district court's July 2 order that
the settlement addressed only claims "raised in this law suit" and
its July 6 order that plaintiff was settling "all claims Plaintiff
has," which Davis argued did not include the long-ago disclosed but
not yet affirmatively pleaded cause of action for silicone
poisoning. Davis also sought sanctions from defense counsel in the
amount of $100,000.00 and attorneys' fees of $2,000.00 for the
defendants' recalcitrant behavior in refusing to honor the
settlement and the district court's orders enforcing same.
The district court set a hearing for August 21, 1993 to
resolve this dispute. Obviously, however, the hearing date
scheduled was not soon enough to satisfy Ms. Davis. On August 4,
1993, she filed "Plaintiff's Second Motion for Sanctions/Motion to
Enter Orders for Settlement and Release."7 The motion, insofar as
it dealt with sanctions, complained that the defendants'
"subterfuge, recalcitrance," and dishonesty in the discovery
ordered by the Magistrate Judge on January 25, 1993, had denied
plaintiff proper discovery and inflamed the district court, in some
7
This motion was accompanied by a letter to the district
court's coordinator dated August 2, 1993. Alleging, initially,
the defendant's underhanded tactics in procuring the setting of
the August 21, 1993 hearing date, the body of the letter
concluded
[t]he date of August 21, 1993, is wholly unacceptable.
My client is an extremely ill man. This is one of the
reasons he chose to enter into settlement negotiations.
His health is indeed to (sic) precarious to wait that
long. If Judge Kent can not (sic) entertain the
Motions before this Court, I am requesting that he
appoint a Visiting Judge or transfer this cause to
another area of venue, preferably Houston or Dallas so
that this matter might be ruled on immediately.
14
unexplained way, so as to "devalue Plaintiff's case" to a value of
$85,000.00. Davis sought an award of costs and attorneys' fees and
an order striking the defendants' pleadings.
On August 13, 1993, the defendants responded by reminding the
district court that the plaintiff had only one remaining expert,
Dr. Warren, who not only was unable to give an opinion as to the
defendants' liability on any ultimate issue in the case, but also,
if the case were re-opened, was going to be sued by the plaintiff,
presumably for some form of malpractice. The defendants argued
that despite the "summary judgment" posture of the case, they
settled the matter in its entirety for $85,000.00. Any
post-settlement attempt to "carve out" the silicone poisoning cause
of action, they argued, was unfounded and defied common sense. The
defendants took issue with Ms. Davis' harangue and asked the
district court to order plaintiff to execute a release of all
claims, including any cause of action for silicone poisoning.
On August 20, 1993, the district court heard the motions
relating to enforcement of the settlement.8 It became apparent at
the hearing, and the district court specifically found, that there
had not been a meeting of the minds regarding the scope of the
settlement negotiated June 3.9 In an effort to salvage the
8
This hearing was recorded and transcribed in its entirety,
and is part of the record on appeal.
9
However, in its opinion of January 5, 1994, the district
court said "There is no doubt in this Court's mind that the
prospect of a silicone poisoning cause of action surviving a
settlement agreement was never discussed at the settlement
conference on June 3, 1993." Dist.Ct.Op. at 25 (Civ. No. G-92-
284, January 5, 1994).
15
settlement, the district court, with the agreement of all parties,
ordered that the plaintiff undergo medical testing to determine the
presence, if any, of silicone in his body. The parties agreed, on
the record, that if the testing were negative the settlement would
be enforced and the silicone poisoning cause of action released.
On the other hand, if the test results were positive, the
settlement would be set aside, the case would be reinstated, and
the plaintiff would be permitted to amend his complaint and proceed
to trial before a different district judge.10
Still hoping to facilitate settlement in reasonably prompt
fashion, the district court asked the parties to accomplish the
agreed upon medical testing "cooperatively and pleasantly." The
specimen retrieval was to take place within thirty days, and the
testing was to be completed within thirty days of the sample
retrieval. The parties were asked to agree, if possible, on a
pathologist to perform the testing or, absent such agreement, to
submit two names each to the district court from which the court
would choose. The record clearly indicates that the parties agreed
to these terms voluntarily.
The district court noted the "vituperative pleadings that
[had] been rifling back and forth," and asked the parties to
initiate a conference call regarding any problems that might arise,
rather than filing any pleadings and attacking one another therein.
10
Judge Kent indicated at the hearing that he would grant a
motion for recusal if this matter were to proceed to trial
because of the intimate role the court had played in the
settlement negotiations and evaluation of plaintiff's case.
16
Despite the district court's request, on August 31, 1993, Davis
sent a letter to the district court asking the court, once again,
to enforce the plaintiff's version of the settlement agreement
reserving to plaintiff and/or his heirs the right to pursue a
subsequent action for silicone poisoning and/or wrongful death in
connection therewith. The letter also claimed a fruitless attempt
to locate a pathologist to perform the necessary testing.
According to the letter, the court's proposal was unworkable
because the necessary tissue retrieval would require extensive
surgical procedures prohibited by plaintiff's current medical
condition.11 Davis' letter also made another attempt to convince
the district court that plaintiff had "been forced to be subjected
to this position due to the recalcitrance and/or refusal of the
Defendants in entering into the settlement as agreed on the date of
June 03, 1993."
Naturally, Davis' letter prompted a response from the
defendants. By letter dated September 3, 1993, the defendants
confirmed that the proper testing would require a tissue biopsy but
took issue with the claimed inability to locate a pathologist
willing to perform the procedure. The defendants asserted that a
Dr. Williams, the Chief of Pathology at St. Joseph's Hospital in
Houston, Texas, was willing to perform the testing and that they
had left several unanswered messages at Davis' office in an attempt
to confer with her in this regard.
11
The district court later learned that Dr. Carl Davis,
plaintiff's attending surgeon, was not informed of the court's
order for specimen retrieval until October 18, 1993.
17
A written order memorializing the contingent settlement
agreement reached at the August 20 hearing was signed September 10
and entered September 13, 1993. However, still undaunted by the
district court's order requiring negative results of the silicone
testing as a condition to enforcing the $85,000.00 settlement, and
the admonishment against filing further interim pleadings, Davis
filed a "Motion for Contempt and Brief in Support Thereof and
Motion for Sanctions" on September 23, 1993. Davis again argued
that she had expressly reserved the right to pursue the silicone
poisoning cause of action, and condemned the defendants' "wrongful"
refusal to honor the $85,000.00 "partial" settlement. Plaintiff's
counsel went so far as to claim that there were no disputed facts
regarding the settlement agreement," and asked the district court
to find the defendants and their counsel to be in contempt, to
assess damages against the defendants and their counsel in the
amount of $250,000.00, and to award plaintiff attorney's fees in
the amount of $14,553.00. Contemporaneously, Davis also filed a
"Motion to Lift Stay of Discovery and Motion to Compel Discovery,"
re-urging complaints previously made regarding discovery. This
motion, while briefly reiterating allegations of defense counsel's
dilatory tactics, also suggested that the "clear failure" of the
district court to correctly apply the law of discovery was an abuse
of discretion subject to mandamus.
On September 24, 1993, in response to the motions filed by
Davis the day before, the district court set a status conference
for October 5, 1993, and sent written notice of the conference to
18
all parties. The district court's attempts to set these
proceedings back on track obviously did not meet with plaintiff's
approval, as Davis immediately filed a petition for writ of
mandamus with this Court. After reciting a litany of "abuses" she
and the plaintiff had been subjected to by the district court and
magistrate judge, Davis asked this Court to enforce the $85,000.00
partial settlement and to vacate all orders relating to silicone
testing. In the alternative, Davis asked this Court to mandate
that the district court lift the stay of discovery and transfer the
matter to Houston because of the extreme prejudice shown by the
judges in the Galveston division. Davis also asked that the
litigation be stayed pending this Court's ruling on plaintiff's
petition.
On September 30, 1993, Davis sent the district court a copy of
the petition, advised the court that she was seeking a stay of the
litigation, and announced that she would thus not appear at the
status conference on October 5, 1993. Upon learning of plaintiff's
petition to this Court, and to allow time for proper consideration,
the district court canceled the conference scheduled for October 5.
On October 5, this Court denied plaintiff's petition for writ
of mandamus. Upon receipt of this Court's ruling, the district
court rescheduled the status conference for November 2, 1993, and
sent notice to counsel. It was clear to the district court that
"the case needed to be re-opened and a docket control order
established to provide for its disposition."12 Unfortunately, the
12
Dist.Ct.Op. at 24.
19
plaintiff seemed determined not to give the district court any such
opportunity.
Not being satisfied with this Court's initial determination
that an extraordinary writ was unwarranted, Davis sought a
rehearing en banc of plaintiff's petition. On November 1, 1993,
Davis again asked this Court for a stay of proceedings in the
district court pending a ruling on plaintiff's suggestion for
rehearing en banc. Davis notified the district court of her
filings by facsimile transmission on the same day.13
This Court denied plaintiff's motion to stay proceedings on
13
Ms. Davis' letter to the clerk of this Court dated
November 1, 1993, went, in relevant part, as follows:
On or about October 22, 1993, I filed a Suggestion for
Rehearing in the above referenced cause. In so doing,
I requested a stay of all matters pending in the United
States District Court pending a ruling on the
Suggestion for Rehearing. A Scheduling conference is
scheduled for tomorrow, November 02, 1993. Of course,
the scheduling of the hearing conference indicates that
the trial judge will not uphold the orders entered in
connection with the settlement which is the object of
the Writ of Mandamus and the Request for Rehearing.
Since the Court of Appeals has not yet made a ruling on
the matters I have filed which are pending before it, I
am requesting the granting of the stay of litigation in
this matter until a ruling from the Court of Appeals
has been obtained.
I regret the lateness with which this is being
forwarded to you. Unfortunately, I spent the morning
at the doctor's office being examined, discussing test
results and being prepared for preoperative procedures.
Please be advised that I will be in Houston on Tuesday,
November 02, 1993, being subjected to preoperative
procedures and will be having surgery on November 03,
1993. You may reach me at (409) 345-2092. A recorder
will be on if I am not available to answer the
telephone.
20
the same day, November 1. Relying on her suggestion for rehearing
en banc, a personal medical appointment, and an unresolved
telephone request with the district clerk's office, plaintiff's
counsel failed to appear at the status conference on November 2,
1993. Ms. Davis had not, at that time, identified the nature of
her alleged medical appointment or explained why it could not be
rescheduled. Given the history of delays and scheduling problems
in this litigation,14 the district court quite understandably viewed
this excuse with skepticism. Under the circumstances, the district
court viewed Davis' failure to appear as "yet another obstruction
to the progress of this plagued and hostile litigation."15 Thus,
in the exercise of its inherent powers to control the conduct of
lawyers practicing before it, the district court promptly dismissed
the plaintiff's cause of action with prejudice.
On November 23, 1993, the plaintiff filed a "Motion for
Rehearing/Motion for New Trial/Motion to Recuse." Finally, with
this motion, Davis submitted proof of her medical treatment on
November 2. Davis contended, however, that she did not request a
continuance of the status conference because (1) there was no
action before the district court at the time because this Court had
not yet ruled on her suggestion for rehearing of plaintiff's
14
The district court noted that it was not "the first time
Davis' alleged personal medical problems had impeded the progress
of this case; it had kept her from engaging in the accelerated
discovery during the five months immediately following the
removal of this case to federal court and it had caused problems
scheduling depositions." Dist.Ct.Op. at 24.
15
Dist.Ct.Op. at 25.
21
petition for writ of mandamus, and (2) counsel was totally
prohibited from filing any further pleadings in this matter by
order of the district court. Davis also argued that the district
court had failed to respond to her telephone inquiries of the
clerk's office regarding whether she was expected to appear at the
status conference. In addition, Davis argued that the actions of
Judge Kent were the result of bias and prejudice, and thus that
Judge Kent should recuse himself.16
Also on November 24, the district court received a copy of a
letter Ms. Davis sent to one of the defendants' attorneys, which
complained of a "complete subversion of the judicial process."
Stating that she found defense counsel's actions to be "equally
culpable as the Court['s]," she accused her adversaries of serious
acts of misconduct, and enclosed a draft of a letter to the State
Bar of Texas Disciplinary Committee recommending their disbarment.
The letter leveled numerous allegations of misconduct, including an
allegation that some special relationship existed between defense
counsel and the district court. On the same day, the district
court received a letter from Dr. Carl Davis, plaintiff's attending
surgeon, which indicated that he had not been informed of the
court's order for specimen retrieval until October 18, 1993. By
tragic coincidence, November 24 was also the day that the
plaintiff, Hayes Hudson, died at Methodist Hospital in Houston,
16
We note that Judge Kent had already indicated on the
record his willingness, if this matter were reinstated, to recuse
himself because of his intimate role in settlement negotiations.
Ms. Davis' claims of bias and prejudice were thus certainly
gratuitous.
22
Texas.
On January 4, 1994, the district court denied plaintiff's
motions for rehearing and new trial, issued an opinion and order,
and entered final judgment dismissing plaintiff's cause of action
with prejudice. This appeal followed.
II.
The appellant, the personal representative of Hudson's Estate,
argues that the district court abused its discretion when it
dismissed Hudson's cause of action under its inherent authority.
The appellant also argues that the district court erred by
dismissing Hudson's claims while a Suggestion for Rehearing En Banc
on plaintiff's Petition for Writ of Mandamus was pending because if
the petition had been granted the claims before the district court
would have been settled. Appellant contends that the petition and
suggestion for rehearing divested the district court of
jurisdiction and thus it was without power to enter an order of
dismissal. Finally, appellant argues that the district court erred
in refusing to enforce the plaintiff's version of the purported
settlement.
The Defendants/Appellees contend that the dismissal with
prejudice was within the district court's inherent power and was
appropriate under the circumstances. The Defendants also argue
that the district court was not without jurisdiction to dismiss
plaintiff's claims, and that the district court's finding that
there was no meeting of the minds as a result of the June 3
settlement conference was not clearly erroneous. We agree.
23
III.
A. JURISDICTION
Appellant's contention that the district court was deprived
of jurisdiction by the petition for writ of mandamus and request
for stay is without merit. As a general rule, a perfected appeal
from a final judgment or reviewable order of a district court does
vest jurisdiction in the appellate court and terminates the
jurisdiction of the district court.17 This rule does not apply to
petitions for writ of mandamus.
Mandamus petitions request an extraordinary remedy that is
only appropriate in exceptional circumstances. Moreover, because
such requests are only granted in exceptional circumstances, the
Federal Rules of Civil Procedure do not provide for an automatic
stay of district court proceedings while a petition for writ of
mandamus is pending. If the district court or the court of appeals
finds it appropriate to stay proceedings while a petition for
mandamus relief is pending, such a stay may be granted in the
court's discretion. However, absent such a stay, the jurisdiction
of the district court is not interrupted. In the present case, no
stay was granted. Thus, the district court had jurisdiction and
retained the authority to enter the order of dismissal.
B. REFUSAL TO ENFORCE SETTLEMENT
The appellant's contention that the district court erred in
refusing to enforce the plaintiff's version of the settlement
17
Griggs v. Provident Consumer Discount Co., 459 U.S. 56,
58, 103 S.Ct. 400, 401-02, 74 L.Ed.2d 225 (1982).
24
pursuant to its July 2 and July 6, 1993 orders is also without
merit. It is apparent from the record that following the June 3,
1993 settlement conference, the district court believed that
agreement had been reached to settle all claims arising from the
allegedly defective penile implants. Despite the appellant's
creative attempts to construe the court's orders to the contrary,
it is clear that it was with this intention that the district
court's orders of July 2 and July 6 were entered. In its opinion,
the district court stated unequivocally that it did not recall the
express reservation of the silicone poisoning claim plaintiff's
counsel claims to have made on June 3. It is clear, however, that
the court accepted plaintiff's counsel's statements regarding her
understanding of the June 3 settlement and found that there had not
been a meeting of the minds on that date. Under the circumstances,
we cannot say that this finding is clearly erroneous.
In any event, the July 2 and July 6 orders were superseded by
the district court's order following the August 20, 1993 hearing.
This order reflected the agreement of all parties, through counsel,
that settlement of all of plaintiff's claims would be enforced only
if testing for silicone poisoning returned negative results. The
only alternative provided in the order was re-opening the case with
an opportunity for plaintiff to amend his complaint. There was no
provision for enforcement of a partial settlement like that desired
by the appellant. Thus, appellant's contention that a partial
settlement should now be enforced by this court is without basis.
C. DISMISSAL UNDER THE COURT'S INHERENT POWER
25
Following plaintiff's counsel's failure to appear at the
status conference on November 2, 1993, the district court dismissed
the plaintiff's claims under its inherent power to control the
conduct of attorneys practicing before it. Based primarily on
plaintiff's continued and extraordinary efforts to enforce the
purported settlement of June 3, and plaintiff's apparent refusal to
comply with the contingent settlement agreed to on August 20, the
district court found that the clear record of delay and
contumacious conduct justified the dismissal of the complaint.
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."18 This power is necessarily
incident to the judicial power granted under Article III of the
Constitution.19 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.20 However, when these inherent powers are
invoked, they must be exercised with "restraint and discretion."21
Dismissing a case with prejudice is a harsh sanction, but we will
18
Link v. Wabash R. Co., 370 U.S. 626, 630, 82 S.Ct. 1386,
1389, 8 L.Ed.2d 734 (1962).
19
Natural Gas Pipeline Co. of America v. Energy Gathering,
Inc., 2 F.3d 1397, 1406 (5th Cir.1993), cert. denied, --- U.S. --
--, 114 S.Ct. 882, 127 L.Ed.2d 77 (1994).
20
In re United Markets International, Inc., 24 F.3d 650, 654
(5th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 356, 130
L.Ed.2d 310 (1994).
21
Chambers v. NASCO, Inc., 501 U.S. 32, 44, 111 S.Ct. 2123,
2132, 115 L.Ed.2d 27 (1991); Natural Gas Pipeline, 2 F.3d at
1406 (quoting Roadway Express, Inc. v. Piper, 447 U.S. 752, 764,
100 S.Ct. 2455, 2463, 65 L.Ed.2d 488 (1980)).
26
uphold an involuntary dismissal unless the district court has
abused its discretion.22 This Court has held that such sanctions
should be confined to instances of "bad faith or willful abuse of
the judicial process." We hold that plaintiff's actions meet this
standard.23
22
Chambers, 501 U.S. at 54-56, 111 S.Ct. at 2138; United
Markets, 24 F.3d at 654.
23
United Markets, 24 F.3d at 654 (quoting Pressey v.
Patterson, 898 F.2d 1018, 1021 (5th Cir.1990)). The district
court implicitly found "a clear record of delay or contumacious
conduct" that justified dismissal. In a long line of cases, this
Court has held that the sanction of dismissal should only be
imposed in the face of a "clear record of delay or contumacious
conduct" if "the court first finds that a lesser sanction would
not have served the interests of justice." Securities and
Exchange Comm'n v. First Houston Capital Resources Fund, Inc.,
979 F.2d 380, 382 (5th Cir.1992); Berry v. CIGNA/RSI-CIGNA, 975
F.2d 1188, 1191 (5th Cir.1992); McNeal v. Papasan, 842 F.2d 787,
790 (5th Cir.1988); Price v. McGlathery, 792 F.2d 472, 474 (5th
Cir.1986); Callip v. Harris County Child Welfare Dept., 757 F.2d
1513, 1519 (5th Cir.1985); Rogers v. Kroger Co., 669 F.2d 317,
320 (5th Cir.1982); Veazey v. Young's Yacht Sale and Service,
Inc., 644 F.2d 475, 477 (5th Cir. Unit A 1981). However, each of
these cases involved a review of sanctions imposed under the
Federal Rules of Civil Procedure.
By contrast, some of this Court's opinions involving
review of sanctions imposed under the court's inherent power
have held the sanction of dismissal should be limited to
instances of "bad faith or willful abuse of the judicial
process." In re United Markets International, Inc., 24 F.3d
650, 654 (5th Cir.1994); Pressey v. Patterson, 898 F.2d
1018, 1021 (5th Cir.1990). Although this Court has never
expressly addressed the distinction between these two
standards, it has at least stated that "[t]he trial court's
discretion to impose sanctions under its inherent power is
even more limited." Pressey, 898 F.2d at 1021.
Since the appellant does not argue that the district
court applied the wrong standard, we will not address the
substantive difference between these distinct lines of
authority. Instead, we find that any error in this regard
would be harmless in the present case since the more
stringent standard has been met.
27
Although the district court recounted the entire history of
this hostile litigation in its order of dismissal, we read the
district court's opinion as relying primarily on plaintiff's
counsel's conduct following the hearing held August 20, 1993. As
discussed above, all parties agreed at this hearing that absent
negative results of tests for silicone poisoning the settlement
agreement would not be enforced. Yet, despite Ms. Davis' express
agreement to the testing conditions, she filed another request to
enforce a partial settlement.
Davis' letter to the court of August 31 claimed an inability
to find a pathologist to perform the necessary tests and that the
tests were prohibited by the plaintiff's medical condition. The
record reflects, however, that defense counsel located qualified
pathologists and that plaintiff's counsel was unavailable to
discuss an agreeable selection. Furthermore, the record reflects
that Davis did not inform plaintiff's attending surgeon of the
court's order for testing until October 18, 1993.
The district court reaffirmed the contingent settlement
agreement by order entered September 13, 1993. Yet, plaintiff's
counsel filed a motion for contempt and sanctions on September 23,
1993, claiming, without any basis, that the defendants had
wrongfully refused to enter a partial settlement pursuant to the
"agreement" reached at the June 3 settlement conference. Moreover,
when the district court attempted to put this litigation back on
track by scheduling a status conference, plaintiff's counsel made
the same frivolous arguments regarding a partial settlement to this
28
Court by Petition for Writ of Mandamus. Absent any legal basis for
such extraordinary relief in this case, the mandamus petition seems
to have been intended merely to create additional procedural delay.
These facts fully support a finding that the plaintiff was
willfully and in bad faith refusing to comply with the court's
August 20 and September 13, 1993 orders.
The appellant attempts to characterize the district court's
dismissal as a sanction under Federal Rule of Civil Procedure 16
for failure of plaintiff's counsel to appear for the status
conference on November 2, 1993. The district court's opinion is
not so limited, however, and we need not decide whether that
failure to appear alone would support the dismissal. The district
court relied on the entire history of the litigation, including the
previous delays occasioned by the plaintiff.24
We recognize that "[w]hen parties or their attorneys engage in
bad faith conduct, a court should ordinarily rely on the Federal
Rules as the basis for sanctions." Natural Gas Pipeline, 2 F.3d at
1410 (citing Chambers, 501 U.S. at 50-52, 111 S.Ct. at 2136).
Indeed, it appears in this case that some of the conduct of
plaintiff's counsel arguably provided the basis for sanctions under
Rules 11, 16, and 37. However, given the entirety of the
circumstances and the wide range of willful conduct observed by the
district court, it was not error for the court to resort solely to
24
The Supreme Court has held in a similar case that "failure
to appear at a pretrial conference may, in the context of other
evidence of delay, be considered by a District Court as
justifying a dismissal with prejudice." Link, 370 U.S. at 635,
82 S.Ct. at 1391.
29
its inherent power. In cases like this, "requiring a court first
to apply rules and statutes containing sanctioning provisions to
discrete occurrences before invoking inherent power to address
remaining instances of sanctionable conduct would serve only to
foster extensive and needless satellite litigation, which is
contrary to the aim of the rules themselves."25
In addition, we recognize that dismissal with prejudice "is an
extreme sanction that deprives a litigant of the opportunity to
pursue his claim."26 Thus, we do not easily affirm a sanction of
dismissal in a case, such as this one, where the sanctionable
conduct was attributable to counsel rather than to the plaintiff
directly. There is no question, however, that a party is bound by
the acts of his attorney.27 "[I]f an attorney's conduct falls
substantially below what is reasonable under the circumstances, the
client's remedy is against the attorney in a suit for malpractice.
But keeping this suit alive merely because plaintiff should not be
penalized for the omissions of his own attorney would be visiting
the sins of plaintiff's lawyer upon the defendant[s]."28
Considering the numerous obstacles and delays encountered in
this case, we commend the district court for its patience. Under
25
Chambers, 501 U.S. at 51, 111 S.Ct. at 2136.
26
Callip, 757 F.2d at 1519.
27
Link, 370 U.S. at 632-34, 82 S.Ct. at 1390 ("Petitioner
voluntarily chose this attorney as his representative in the
action, and he cannot now avoid the consequences of the acts or
omissions of this freely selected agent."); Callip, 757 F.2d at
1522.
28
Link, 370 S.Ct. at 634 n. 10, 82 S.Ct. at 1390 n. 10.
30
the circumstances, we cannot say that the district court abused its
discretion in dismissing plaintiff's claims with prejudice.
IV.
For the foregoing reasons, the judgment of the district court
dismissing plaintiff's claims with prejudice is AFFIRMED.
* * * * * *
* * * * * *
31