Sanctions Imposable for Violations of the Federal Rules of Civil Procedure

A Report to the Federal Judicial Center

THE FEDERAL JUDICIAL CENTER

Board

The Chief Justice of the United States

Chainnan

Judge John D. Butzner, Jr. United States Court of Appeals

for the Fourth Circuit

Chief Judge William S. Sessions United States District C our!

Western Dislriet of Texas

Judge Cornelia G. Kennedy Uniled Slaies Court of Appeals

jor Ihe Sixlh Circuit

Judge Donald S. Voorhees Uniled Stales Dislriel COUrt

Weslern Districi of Washington

Judge Aubrey E. Robinson. Jr. United Slaies DislriC! Court

Dis/riel of Columbia

Judge Lloyd D. George United S,ates Bankrupt(I' Court

District of Nevada

William E. Foley Director of the Administrative

Office of lhe United States COUrlS

Director

A Leo Levin

Deputy Director

Charles W Nihan

Division Directors Kenneth C. Crawford William B. Eldridge Continuing Educalion Research

and Training

Jack R Buchanan Alice L O'Donnell Innovalions Inler-Judicial AjJairs

and Systems Development and Injormalion Services

Assistant Director

Russell R. Wheeler

1520 H Street NW Washington. D. C. 20005

Telephone 202i633-6011

SANCTIONS IMPOSABLE FOR VIOLATIONS OF THE

FEDERAL RULES OF CIVIL PROCEDURE

by Professors Robert E. Rodes, Jr., Kenneth F. Ripple,

and Carol Mooney

A Report to the Federal Judicial Center from the

Thomas J. and Alberta White Center for Law, Government and

Human Rights, Notre Dame Law School

July, 1981

This publication is a product of a study undertaken in furtherance of the Federal JUdicial Center's statutory mission to conduct and stimulate research and development on matters of judicial administration. The analyses, conclusions, and points of view are those of the authors. This work has been subjected to staff review within the Center, and publication signifies that it is regarded as responsible and valuable. It should be emphasized, however, that on matters of policy the Center speaks only through its Board.

Cite as R. Rodes, K. Ripple, & C. Mooney, Sanctions Imposable for

Violations of the Federal Rules of Civil Procedure

(Federal Judicial Center 1981).

Research Personnel

The principal investigators on this project were Professor Robert E. Rodes, Jr., Kenneth F. Ripple, and Carol ~100ney. The principal student researchers were Gregory Murphy '79 and Mary Kay Rochford '79. Theresa Abendroth '81 also participated in the research and writing. The following students also participated in the reading and briefing of cases and in the checking of citations: Ruth B. Beyer '80; Michael Laak '80i Lorelie Mas~ers '81: Judith McMorrow '80: Harold Moore '80: Mollie Murphy '81: Mark Muzzillo '81i Paul Patricoski '80: Thomas Piskorski '81. Assisting in the proofreading were: Timothy Stoffers '81: Mary Walsh 180: Edward J. Wallison, Jr. '81: Susan Zwick '80.

FJC-R-81-6

I.

II.

II I.

TABLE OF CONTENTS

INTRODUCTION .

Purpose 1 Methodology . . . . . 1

Case Law . . . . . . 1 Local Rules 2 Secondary Literature. 2

Inherent Limitations .. '3

RULE 37

The Structure of Rule 37 S Sanctions for Inadequate Response . . . .. S Sanctions for Ignoring a Request. . 7 Sanctions Against Non-Party Witnesses . .. 7 Miscellaneous Sanctions .. . . . . 8

Current Operation of Rule 37 . . . . . 8 Inadequate or Inappropriate Responses

toth e Dis c 0 v e r y Re quest. . . . . . 8 Totally Ignor ing Di scover y Reque s t s 14 Failure to Admit a Rule 36 Request . . 19 Miscellaneous Misconduct. . 21

Observations on the Operation of Rule 37 23 Extent of Culpability . . . . . . . . 23 Extent of Harm Due to Misconduct. . 25 Effect of Sanctions . . . 25 Fault of Counsel. . .. ...... 27

The Deterrence Function of Rule 37 Sanctions ... 29

RULE 4l(b) 32

Rule 41(b) in General .. 32 Current Operation of Rule 4l(b) 33

Significant Delay Amounting to Failure to Prosecute . . . . . . . 34

Refusal to Proceed to Trial 38 Failure to Appear for Trial 39 Failure to Appear for Pretrial

Conference . . . . 40 Failure to Effect Timely Service of

Process 41 Failure to Amend Complaint or to File

Documents as Ordered by the Court . 41 Attorney vs. Client Responsibility. . . 43

iii

IV. RULE 55 4;

4 ".) 4 -,

The Provisions of Rule 55 .... Current Operation of Rule 55 .

Ignoring the Litigation ........ H Preliminary Steps, But No Answer 51 Late Answer ... . . . 53 Later Stages . . . . . . . . . . . . . 53

Problems of Representation . 55

V. THE INTERRELATION OF RULES 37, 4l(b), AND 55 57

VI. RULE 36 ADMISSION OF FACTS AND OF GENUINENESS OF DOCUMENTS . . . . ... . . . . 60

Totally Ignor ing Requests for Admission 61 Late Responses .......... 62 Inadequate or Inappropriate Responses 63

VII. MISCELLANEOUS RULES 64

Rule 11 64 Rule 16 65 Local Rules 67

VIII. IMPOSING SANCTIONS ON THE ATTORNEY RATHER THAN ON THE CLIENT . . . . 70

Introduction . . . 70 Agency Theor y . . . . .. 70 Sources of Authority for Sanctions Against

Attorneys . . . . . . . 73 Inherent Power . . . . . . 73 Con tempt . . . . . . . . 74 Local Court Rules . . . .. 74 A Federal Cost Statute:

28 U.S.C. 1927 . 75 Ru 1 e 37 .... . . 77 Miscellaneous . . 79

IX. CONSTITUTIONAL LIMITATIONS ON THE IMPOSITION OF SANCTIONS ........ .. 80

X. CONCLUSION . . . 85

APPENDIX' . 89

FOOTNOTES . 91

iv

I. INTRODUCTION

Purpose

This paper surveys the current state of the law with respect

to sanctions for violations of the Federal Rules of Civil Pro

cedure as reported in both the case law and the secondary litera

ture. After consultation with the Federal Judicial Center, we

decided to focus our analysis on litigation behavior that results

in the imposition of sanctions and the factors considered impor

tant by federal courts in determining which sanctions to apply.

We trust that this approach will be the most helpful in deter

mining the direction of future research or possible changes in

the rules.

Methodology

This report was completed prior to the 1980 amendments to

rules 26 and 37.

Case Law

First, we gathered citations for cases involving rules 11,

16,36,37, 4l(b), and 55 from the United States Code Annotated

(U.S.C.A.). We then read and briefed all court of appeals cases

under these rules which were reported in the Federal Reporter and

annotated as of February 1, 1979. We then returned to the dis

trict court cases and decided to review only the 1978 and 1979

1

2

cases annotated in the U.S.C.A. cumulative annual pocket. "Re

limited our reading to these years so that we would review only

current practice and so that we could make the best use of a

limited amount of time.

In order to review the most recent cases, we also checked

citations in the Federal Rules of Civil Procedure tables which

update the Wright and Miller treatise, Federal Practice and

Procedure, and those which appear in the front of the advance

sheets for the Supreme Court Reporter, Federal Reporter, Federal

Supplement, and Federal Rules Decisions. We read and briefed all

district court and court of appeals decisions that were listed

under the pertinent rules in the advance sheets, beginning with

the last volume and page included in the 1979 U.S.C.A. pocket

part and ending with the advance sheets published July 30, 1979.

Local Rules

We examined all local rules printed in the Federal Rules

Service looseleaf volumes as of June 1, 1979. We read and

briefed relevant citations from the U.S.C.A. Annotations to

Rule 83.

Secondary Literature

We surveyed all secondary literature catalogued in the Index'

to Legal Periodicals from the date of the original promulgation

of the rules in 1938 to July 31, 1979. We also examined the

major legal treatises and relevant annotations.

3

Inherent Limitations

The case analysis method limited our research in a number of

ways. For instance, because judicial opinions provided our main

source of data, we were limited to the judges' accounts of the

facts. No doubt federal judges accurately report facts in their

opinions, but they can and often do present these facts in a

fashion designed to support their decisions. The selective

presentation of facts became especially clear whenever we com

pared the statement of facts in a district court opinion with the

statement in a court of appeals opinion reversing the district

court. Therefore, by using the case analysis method, we limited

our ability to study the facts of each case from a purely objec

tive standpoint.

The case analysis method also does not produce accurate

statistical data concerning the frequency with which courts apply

sanctions or the prevalence of particular considerations. The

majority of court of appeals cases involve the "drastic sanc

tions" of dismissal with prejudice or default judgment for breach

of the rules of procedure. These two sanctions are considered

"final orders" and appealable. The "lesser sanctions" of desig

nating facts as established