APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA (D.C. Civ. No. 99-CV-00164) Magistrate Judge: Honorable Raymond J. Durkin
Before: Scirica, Chief Judge,*fn1 Ambro and
Weis, Circuit Judges.
The opinion of the court was delivered by: Weis, Circuit Judge.
In this diversity case, we conclude that the plaintiff 's proper invocation of the Fifth Amendment privilege against self-incrimination did not warrant dismissal of the litigation. Because other less drastic measures were available to cope with the failure to comply with the defendant's discovery requests, we will reverse and remand for further proceedings.
Plaintiff filed a civil action on January 29, 1999 asserting claims for breach of contract and unjust enrichment based on painting services he had performed on military vessels at defendant's instance. With the consent of the parties, the matter was assigned to a magistrate judge for trial.
On August 15, 1999, while this civil suit was still pending, an Information was filed in the Middle District of Florida charging one of the defendant's employees with irregularities in carrying out a contract with the United States to service and maintain military vessels. Plaintiff was a named, but uncharged, co-conspirator in that Information.
One month later, on September 17, 1999, the defendant served on plaintiff interrogatories and request for production of documents. In a letter dated November 11, 1999, counsel for the plaintiff advised defendant that:
With respect to the Information handed down by the Federal Grand Jury, Mr. McMullen will obviously be asserting his Fifth Amendment privilege at the time of his deposition. Moreover, so that there can be no question as to Mr. McMullen's waiver of his Fifth Amendment privilege, he must also assert said privilege in response to the outstanding discovery requests.
In response, defendant filed a motion to compel answers to the interrogatories and a request for production. The parties filed briefs and discussed the issue as well as possible settlement with the magistrate judge at a pretrial conference in December 1999.
Upon receiving notification in the following month that settlement efforts had been unavailing, the Court ruled on defendant's motion to compel. The Court recognized that generally an order to compel compliance with discovery is a prerequisite to the imposition of sanctions. However, the magistrate judge concluded that in view of the plaintiff 's unequivocal assertion that he would invoke his Fifth Amendment privilege, the issuance of an order compelling discovery would be a futile act.
Relying on Serafino v. Hasbro, 82 F.3d 515 (1st Cir. 1996), the Court directed that the case be dismissed with prejudice, noting that an examination of the plaintiff 's records might be helpful, but would be a poor proxy for his testimony. Although both parties had suggested the alternative of staying the case, the Court did not indicate why that procedure would not be a satisfactory solution for the problem.
After the appeal was taken, the parties participated in an extended period of negotiations in accordance with this Court's Appellate Mediation Program. The criminal matter was concluded in June 2002, and on July 9, 2002, the plaintiff advised that he was now available for an oral deposition. Defendant declined the offer on the ground that too much time ...