APPEAL FROM THE UNITED STATES DISTRICT COURT DISTRICT OF DELAWARE (Civil No. 4618).
Aldisert, Gibbons and Rosenn, Circuit Judges. Gibbons, Circuit Judge, dissenting.
This appeal questions the appropriateness of a sanction dismissing an action for failure to comply with the discovery provisions of the Federal Rules of Civil Procedure and with a specific court order.
Plaintiff, Elsie A. DiGregorio, Pennsylvania administratrix of the estate of Daniel S. DiGregorio, deceased, appeals from dismissal of her action in the District Court of Delaware on December 11, 1973. She instituted this action on March 28, 1973 to recover damages under the Pennsylvania Survival and Wrongful Death Statutes. The complaint alleged that the defendant, a Delaware corporation, is the successor to Micro Switch, Inc., an Illinois corporation, and that on or about March 29, 1972, the plaintiff's decedent "suffered severe and painful injury and death as a result of an unreasonably dangerous and defective micro switch which had been manufactured by Micro Switch, Inc."*fn1
Defendant filed its answer on April 23, 1973, pleading ignorance to all the allegations in the complaint except those relating to the defendant, and on April 24, 1973, filed interrogatories. The following day, defendant served notice to take plaintiff's deposition on Monday, June 18, 1973. On May 3, 1973, defendant served a request for production within thirty days of decedent's federal income tax returns for the years 1968 to 1972, inclusive. On Friday, June 15, 1973, twenty-two days after the answers or objections to the interrogatories were due, defendant's counsel telephoned plaintiff's Philadelphia counsel to inquire about the answers to the interrogatories and was informed that a copy of unexecuted, unsworn answers would be mailed to him. He received the answers the next day (Saturday) and, on the following Monday, proceeded with the scheduled deposition.
Shortly thereafter, on June 20, 1973, defendant moved under rule 37 of the Federal Rules of Civil Procedure for an order compelling complete and responsive answers to the interrogatories.*fn2 Defendant filed a brief in support of its motion on June 29, 1973, but was unable to reach agreement on a briefing schedule with plaintiff's local Delaware counsel, who disclaimed authority to agree to the proposed schedule and referred defendant's counsel to plaintiff's Philadelphia counsel who actually was handling the matter. Defendant's counsel objected to dealing directly with out-of-state counsel and requested the district court to call a conference to set a briefing schedule. An associate of plaintiff's Philadelphia counsel, personally unfamiliar with the case, attended the conference on August 13, 1973, and advised the court that he was unable to understand why a brief had not been submitted since a prepared draft was in the file. The district court fixed a briefing schedule by order, and oral argument on the motion finally was heard on August 30, 1973.
In a memorandum and order of September 5, 1973, the district court found:
(1) Plaintiff's failure to answer interrogatories 1, 2, 6, 36 and 56 was unjustified.
(2) Plaintiff failed to object to interrogatories 13, 20, 21, 24, 25, 27, 42, 43, 46 and 65, and plaintiff's answers to these interrogatories were "inadequate or unresponsive to the questions asked."
(3) All plaintiff's answers failed to conform to the requirements of rule 19 of the Civil Rules of the United States District Court for the District of Delaware.*fn3
(4) Plaintiff's opposition to the motion to compel adequate answers was unjustified.
The district court therefore directed plaintiff on or before September 25, 1973, to file complete and responsive answers to defendant's interrogatories and to pay defendant's expenses of $400.00, including an attorney's fee, incurred in obtaining the order.
Having received neither the answers compelled by the district court nor payment for the expenses awarded on the motion, defendant moved on September 27, 1973, for dismissal of plaintiff's action under rule 37 or other appropriate sanctions. On October 29, 1973, two days before argument on the motion for sanctions, the district court received a check for defendant's expenses payable to the order of the clerk. Since the order of September 5, 1973 ...