Poulis v. State Farm Fire And Casualty Company

747 F.2d 863 (1984)

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Nature of the Case

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Facts

Ps filed suit against D in November 1981 to recover under an insurance policy after fire damaged their home. D denied liability, asserting that Ps had intentionally caused the fire, had concealed and misrepresented information and had not filed their action in time. On March 12, 1982, the district court ordered that discovery would close June 14, 1982; that Ps' pre-trial statement would be due July 5; and that D's statement would be due July 26. A pre-trial conference was set for August 13. There was no action by Ps seeking discovery. On April 15, D filed notice of service of interrogatories on plaintiffs. No answers to these interrogatories were or have ever been filed, and Ps did not file their pre-trial statement by July 5 as required. A member of the district judge's staff advised Ps' counsel, George Retos, Jr., that the statement was overdue and Retos promised to submit a statement by the next day. He neither did so nor requested any extension. On August 5 the district court, sua sponte, dismissed the case with prejudice for Ps' failure to comply with the orders to file the pre-trial statement. Retos filed a pre-trial statement on August 9, together with a motion under Rule 60(b) to reconsider and set aside the dismissal, alleging that an illness prevented him from working between July 6 through July 17; that other attorneys could not have taken over because only Retos spoke Greek and could communicate with Ps; that Retos' pregnant wife went into false labor on July 29 and 30, and that he had 'inadvertently set aside the required work for the instant case on July 29, 1982, due to his concern for his wife' and was 'render[ed] unable to prepare the necessary Pre-Trial Statement;' that on his return to work other tasks had backlogged; and that although he had dictated a statement on August 4, it had been mailed on August 6 when it was typed and ready. On appeal, this court vacated the order of dismissal. It held that Ps were not in any way responsible for the failure to comply with the court's order. Dismissal is a drastic sanction and should be reserved for those cases where there is a clear record of delay or contumacious conduct by the plaintiff. The court remanded to permit the district court to consider alternatives to dismissal, stating, 'Alternatives are particularly appropriate when the plaintiff has not personally contributed to the delinquency.' On remand, Ps' brief was filed four days late. D urged the court to reopen discovery so that it could 'have the opportunity to examine Ps' Answers to Interrogatories, conduct further investigation if necessary, and depose Ps or other witnesses known to Ps. D requested an award of $750.00 in attorneys' fees which it incurred because of the dismissal and appeal, and sought a prospective limitation on interest due should it ultimately be held liable on Ps' claim. The district court reinstated its sua sponte sanction for dismissal, stating that there was no appropriate alternative. Ps appealed.