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Hewlett v. Davis

filed: April 6, 1988.

HEWLETT, WILLIE, APPELLANT IN NO. 87-1384,
v.
DAVIS, OFFICER MAX, BADGE # 1186 AND CITY OF PHILADELPHIA AND HOLMES, MARLENE DAVIS, EXECUTRIX OF THE ESTATE OF DAVIS, MAX, AND IN HER CAPACITY AS PERSONAL REPRESENTATIVE OF THE ESTATE OF DAVIS, MAX AND DAVIS, FANNIE, PERSONAL REPRESENTATIVE OF DAVIS, MAX, DECEASED AND DOE, JOHN AND/OR DOE, MARY, ADMINISTRATOR/ADMINISTRATRIX, EXECUTOR, EXECUTRIX OF THE ESTATE OF DAVIS, MAX, AND IN THEIR CAPACITY AS PERSONAL REPRESENTATIVE OF THE ESTATE OF DAVIS, MAX. HEWLETT, WILLIE, V. DAVIS, OFFICER MAX, BADGE # 1186 AND CITY OF PHILADELPHIA AND HOLMES, MARLENE DAVIS, EXECUTRIX OF THE ESTATE OF DAVIS, MAX, AND IN HER CAPACITY AS PERSONAL REPRESENTATIVE OF THE ESTATE OF DAVIS, MAX AND DAVIS, FANNIE, PERSONAL REPRESENTATIVE OF DAVIS, MAX, DECEASED AND DOE, JOHN AND/OR DOE, MARY, ADMINISTRATOR/ADMINISTRATRIX, EXECUTOR, EXECUTRIX OF THE ESTATE OF DAVIS, MAX, AND IN THEIR CAPACITY AS PERSONAL REPRESENTATIVE OF THE ESTATE OF DAVIS, MAX.; OFFICER MAX DAVIS AND THE CITY OF PHILADELPHIA, APPELLANTS IN NO. 87-1398



Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civil No. 86-3708.

Sloviter, Stapleton and Mansmann, Circuit Judges.

Author: Mansmann

Opinion OF THE COURT

MANSMANN, Circuit Judge.

Plaintiff Willie Hewlett and defendant City of Philadelphia have filed cross-appeals from a final judgment entered as the result of a jury verdict for the defendant City of Philadelphia in this civil action by Hewlett against the City of Philadelphia and a former Philadelphia police officer. Hewlett alleged violations of his civil rights under 42 U.S.C. § 1983 and pendent state claims for intentional torts allegedly committed during his arrest.

We find no abuse of discretion, as asserted by the appellant, in the district court's choice of monetary sanctions instead of default judgment for the City's failure to comply with a discovery order. Nor do we find an abuse of discretion in the district court's dismissal, for failure to prosecute, of certain of the plaintiff's post-trial motions. As to the City's cross-appeal, we find no error in the district court's permitting additional discovery in connection with the resolution of post-trial motions. We will affirm the order of the district court as to these matters.

We will, however, employ mandamus to require the district court to entertain a motion, which was improperly remanded to state court. The motion asserted the inadequacy of the district court's instructions to the jury on a pendent state law claim.

I.

This action was filed on May 23, 1986 in the Philadelphia Court of Common Pleas and was removed to federal court by the City on June 20, 1986. Discovery commenced and in February of 1987, several discovery disputes arose.

On February 17, 1987 the plaintiff filed "Plaintiff's Motion for Sanctions for Failure of Defendant, City of Philadelphia, to Answer Plaintiff's Interrogatories, Supplemental Interrogatories and Request for Production of Documents and to Produce Witnesses for Duly Scheduled Depositions" ("Motion for Order Compelling Discovery") citing the City's failure to respond to numerous discovery matters.*fn1 On February 20, 1987, the district court ordered the City to respond to the outstanding requests by February 24, 1987 or have judgment entered against it.

On February 27, 1987 the plaintiff filed "Plaintiff's Motion to Have Judgment Entered in Favor of Plaintiff on the Issue of Liability" ("Motion for Judgment") to sanction the City's assertedly untimely answer to the plaintiff's Amended Complaint as well as the City's alleged failure to comply fully with the discovery order of February 20, 1987.

Trial commenced on March 2, 1987 on the issue of liability only and on March 6, 1987, the district court entered judgment on a jury verdict of liability against Officer Davis but in favor of the City of Philadelphia.

On March 10, 1987 the plaintiff filed deposition subpoenas against the City. On March 16, 1987, the City moved for a protective order for three of the five subpoenaed witnesses and "any other City employee." The district court did not rule on the City's motion but ordered that two of the witnesses whose affidavits had been filed previously, Sergeant Jack Kelley and Officer Dennis Gibson, be deposed.

On March 13, 1987, the plaintiff filed a Motion for Judgment N.O.V., a Motion for a New Trial, and a "Motion to Mold the Verdict," alleging inter alia that the jury was presented only with the § 1983 claim and not the pendent state law agency claim.

On March 18, 1987 the plaintiff filed "Plaintiff's Supplemental Motion Requesting This Honorable Court Enter Judgment In Favor of Plaintiff and Against the City of Philadelphia" ("Supplemental Motion for Judgment"). This motion incorporated many of the claims of the first Motion for Judgment. It also asserted that Officer Gibson's affidavit, filed by the City on March 5, 1987, was misleading regarding the availability of certain requested statistics concerning assaults or injuries by police officers during arrests. In addition, the motion asserted that the City's failure to comply fully and timely with the discovery order of February 20th substantially prejudiced the plaintiff in establishing his claim against the City under § 1983 as well as under the state law agency theory. The motion reiterated the claim that the district court had neglected to instruct the jury on the plaintiff's pendent theory of state law agency. It asserted that the jury verdict, therefore, exonerated the City only as to the plaintiff's claim pursuant to 42 U.S.C. § 1983. The plaintiff requested that the court enter judgment against the City on the pendent state claim in order to sanction its alleged dereliction with regard to the discovery order.

On March 20, 1987, the plaintiff filed "Plaintiff's Motion for Sanctions" ("Motion for Sanctions") which substantially reiterated the claims in the Motion to Compel Discovery and, in addition, cited the City's original refusal to comply with the March 9th deposition subpoenas and claimed that the City's motion for a protective order was untimely. The motion further asserted that the City had failed to file a timely answer to the plaintiff's amended complaint and had filed a nonresponsive answer to the Complaint. The motion requested that the court enter judgment against the City and award attorney's fees and costs.

By opinion and order of April 2, 1987, the district court scheduled oral argument on the plaintiff's Motion for Sanctions and on the City's Motion for a Protective Order. In addition, the court denied the plaintiff's Motion to Mold the Verdict, finding that the plaintiff had not made a timely objection to the asserted failure to charge on the pendent state law agency claim.

On April 7, 1987, the district court entered judgment on the jury verdict of damages against Officer Davis. On the same date, new deposition subpoenas returnable on April 13, 1987 were issued to Officers Kelly and Gibson, the two formerly subpoenaed witnesses who ...


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