Before WEIS, GARTH and SLOVITER, Circuit Judges.
Upon consideration of the matter of Mr. Martin's representation to the Clerk's Office in connection with his motion to file brief and appendix out of time, it is
Ordered that this matter is referred to the merits panel. The merits panel's attention is also directed to the case of Holloway v. Bolger, 760 F.2d 257.
GARTH, Circuit Judge, dissents and files a dissenting opinion.
GARTH, Circuit Judge, dissenting from reference to merits panel:
By referring this proceeding to a panel on the merits the majority members of this motion panel have ruled against the need for fact finding. By doing so, the majority has either implicitly resolved the sharp factual dispute which has surfaced between Mr. Martin and Mr. Mariani, or had deemed that it should be effectively ignored. I think it inappropriate and unsound for us to decide the dispute of fact presented by these conflicting affidavits, and I cannot bring myself to ignore a dispute in fact as fundamental and basic, as the charged misrepresentations presented here.
It is charged here that misrepresentations were made by an attorney to his adversary and to the Court. In my opinion, when an attorney such as Mr. Mariani is impelled to make a serious charge against his colleague and looks to the court for redress and for corrective action, the court should not sweep these charges under the rug. I believe an attorney making such a charge is entitled to the same fact finding procedures and attention that we give to even the most trivial case where the material facts are in dispute.
By the same token, attorneys such as Mr. Martin, against whom charges are made, are entitled to vindication and exoneration in the event that the claims made against them are found to be without merit. The process adopted by the majority in its ruling accommodates none of these concerns. I therefore register my disappointment and disagreement with the majority's ruling even though this ruling stems from a matter collateral to the appeal itself.
This entire controversy had its origins in a suit brought by plaintiff-appellant Walsh against Schering-Plough Corp. Mr. Martin represented and still represents the plaintiff Walsh, and Mr. Mariani represented and still represents the defendant Schering-Plough. Walsh's complaint, filed in March of 1983, alleged employment discrimination in violation of Title VII.
On January 30, 1984, the magistrate to whom this case was assigned recommended that Walsh's case be dismissed because of her failure to comply with various discovery orders and with various pre-trial deadlines. Indeed the very pre-trial conference which gave rise to the magistrate's dismissal recommendation was not attended by Walsh's attorney, Mr. Martin. He did not appear, according to the addendum footnoted to the magistrate's report and recommendation, until about an hour after the conference had concluded.
The district court, however, did not accept the magistrate's recommendation. After a hearing, the district court required that certain discovery documents be produced by Walsh by a date certain. The district court also required other actions to be taken by Walsh (Mr. Martin), failing which the action would be dismissed with prejudice on the defendant's application.
On March 22, 1984, the district court dismissed Walsh's action with prejudice. In handwritten findings at the foot of its order, the district court wrote:
In spite of the substantial reasons by the United States Magistrate in support of her recommendation that plaintiff's complaint be dismissed for failure to comply with court orders and discovery obligations, I did not follow such recommendation, hoping that plaintiff, if given another opportunity, would comply with her obligations.
Plaintiff has failed to meet the deadlines which I imposed for responding to document requests and producing documents. I conclude that both plaintiff and her attorney are responsible for this default, that the repeated failure to comply has prejudiced defendant in the defense of this case, as defendant is unable to proceed with its obligation and with preparation for trial, that as recited in the magistrate's report and recommendation this is part of a history of plaintiff proceeding in a dilatory manner and that in view of plaintiff's failure to take advantage of the final opportunity to comply with the court's requirements lesser sanctions than dismissal will not suffice. I considered and imposed lesser sanctions but they were unavailing. Dismissal is, therefore, warranted.
Subsequent thereto, a motion to vacate the dismissal was made by Walsh. A hearing was held on August 23, 1984 at which time Mr. Martin initially represented that the documents which the district court had ordered him to turn over to the defendant on a day certain could not be delivered because there were no such documents. Thereafter, during the course of the hearing, it was revealed that, in answers to interrogatories, the documents had been identified but that they had not been given to Schering (Mariani) as the court had ordered. The relevant colloquy between the court and counsel follows:
THE COURT: Mr. Martin, let's cut this short, you listed specific documents in -- in your answers to defendant Interrogatory 5, in your answer to defendant Interrogatory 20 and 21 and the final pretrial stipulation. They say they do not and never have had those documents.
Are you saying you gave them to them?
THE COURT: Are you saying that you ...