Summary
rejecting bad faith requirement for dismissal under Rule 104(c) and Fed.R.Civ.P. 37(b) applied in Fox v. Commissioner, 718 F.2d 251 (7th Cir.1983), affg. an Order of this Court
Summary of this case from Harper v. Comm'r of Internal RevenueOpinion
Docket No. 23713–82.
1984-04-9
EDWARD P. DUSHA, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
Edward P. Dusha, pro se. David W. Johnson, Willie E. Armstrong, Jr., and Richard Elliott, for the respondent.
Rule 104(c)(3), Tax Court Rules of Practice and Procedure.—The Court ordered P to answer R's interrogatories and to produce documents sought by R. P failed to comply with this order but instead reiterated frivolous claims the Court had already considered and rejected in ordering P to comply with R's discovery requests. R moved to dismiss the petition under Rule 104(c)(3) as a sanction for P's noncompliance with our order.
Held, R's motion to dismiss granted. P's failure to comply with the Court's discovery order was due to “willfulness, bad faith, or (other) fault.” Societe Internationale v. Rogers (357 U.S. 197 (l958)) standard under Fed. R. Civ. P. 37(b)(2) followed for dismissals under Rule 104(c). Edward P. Dusha, pro se. David W. Johnson, Willie E. Armstrong, Jr., and Richard Elliott, for the respondent.
OPINION
PARKER, Judge:
This case is before the Court on respondent's motion to dismiss as a sanction under Rule 104(c), Tax Court Rules of Practice and Procedure, for petitioner's failure to comply with this Court's discovery order, dated October 19, 1983. For the reasons stated below, respondent's motion to dismiss will be granted.
I
Background: Pleadings and Respondent's Discovery Efforts
In his statutory notice of deficiency, dated June 24, 1982, respondent determined the following deficiencies in and additions to petitioner's Federal income taxes:
+----------------------------------------------------------------+ ¦Year ¦Deficiency ¦Sec. 6651(a) ¦Sec. 6653(a) ¦Sec. 6654 ¦ +------+------------+-----------------+--------------+-----------¦ ¦ ¦ ¦ ¦ ¦ ¦ +------+------------+-----------------+--------------+-----------¦ ¦1979 ¦$10,482.48 ¦$2,600.98 ¦$524.12 ¦$434.94 ¦ +------+------------+-----------------+--------------+-----------¦ ¦1980 ¦13,840.10 ¦3,460.03 ¦692.01 ¦881.82 ¦ +----------------------------------------------------------------+ In the statutory notice, respondent determined that petitioner had unreported W-2 wage income and net income from rental apartments. In his petition to this Court, petitioner alleged (1) that he “is an active ordained member of the Clergy of the Universal Life Church Inc.;” (2) that he “is under an irrevocable Vow of Poverty to the Universal Life Church, Inc.;” and (3) that the income upon which respondent determined he was taxable in fact belonged to the Universal Life Church, Inc., and thus was not taxable to him. Respondent denied these allegations.
Petitioner resided in San Antonio, Texas, during the years 1979 and 1980 and at the time he filed his petition in this case.
This Court's rules require the parties to attempt to attain the objectives of discovery through informal discussion, consultation, or communication before resorting to the Court for formal discovery procedures. See Odend'hal v. Commissioner, 75 T.C. 400, 404 (1980); International Air Conditioning Corp. v. Commissioner, 67 T.C 89, 92–93 (1976); Branerton Corp. v. Commissioner, 61 T.C. 691, 692 (1974); Rules 70(a)(1) and 90(a), Tax Court Rules of Practice and Procedure. After his informal discovery efforts proved futile, respondent, on January 24, 1983, served upon petitioner a Request for Admissions, Interrogatories, and a Request for Production of Documents. These discovery requests sought various documents and information pertaining to petitioner's purported tax returns for the years in question, any bank accounts under petitioner's signatory authority (including accounts under the name of Universal Life Church), petitioner's employment and W-2 wage income during these years, and petitioner's ownership and operation of an apartment building. Except for his admission that he resided in San Antonio, Texas, during 1979 and 1980 and at the time his petition herein was filed, petitioner denied and objected to all other paragraphs of respondent's Request for Admissions. In response to respondent's Interrogatories and Request for Production of Documents, petitioner stated that the information and documents were “not in, and/or under, the plaintiffs [sic] individual possession, custody or control.” (Emphasis added.)
Pursuant to Rule 90(d) and (f), respondent moved the Court to review the sufficiency of petitioner's responses to his Request for Admissions. Respondent also moved, pursuant to Rule 104(b), for an order compelling petitioner to answer his interrogatories and to produce the documents sought or for an order imposing sanctions. Petitioner did not directly respond to respondent's motion to review the sufficiency of his answers to respondent's Request for Admissions. In his “response” to respondent's motion to compel responses to respondent's Interrogatories and Request for Production of Documents, petitioner (1) reiterated his claim that such documents and information were not in his “individual possession, control, or custody;” (2) argued that respondent had proven neither the existence nor petitioner's “control, custody or possession” of such documents and information; and (3) claimed the Fifth Amendment privilege against self-incrimination. The basis of petitioner's Fifth Amendment claim appears to have been newspaper reports of various criminal prosecutions elsewhere in Texas of “Vow of Poverty ministers” involved in other organizations (Basic Bible Church) similar to the Universal Life Church. Petitioner also stated that he was:
willing to ammend [sic] his response to defendant's [sic] interrogatories and request for documents if defendant [sic] will seek to have immunity granted to the plaintiff [sic] through administrative means which are clearly available to the defendant [sic], and grant such immunity to plaintiff [sic] so that any information or documents requested if existing would not be used in criminal matters against the plaintiff [sic] in any criminal proceeding.
Respondent's motions were heard by the Court on July 6, 1983, and taken under advisement. Thereafter, on August 11, 1983, the Court decided another suit involving this same petitioner for two prior years, ruling against petitioner on his Fifth Amendment claim in that case. Dusha v. Commissioner, T.C. Memo. 1983–468, on appeal (5th Cir. Jan. 3, 1984). In order to permit petitioner the opportunity to adduce whatever proof and argument he was able to make in support of his Fifth Amendment claim in this case, the Court on August 24, 1983, denied both of respondent's motions.
Subsequently, on September 16, 1983, respondent renewed his motion to review the sufficiency of petitioner's response to respondent's Request for Admissions and his motion to compel petitioner to answer his Interrogatories and produce the documents sought in his Request for Production. To both renewed motions, respondent attached an affidavit from Robert C. Sawyer, the chief of the Criminal Investigation Division for the Austin, Texas, District of the Internal Revenue Service, stating that he had caused a search of both the open and closed investigative files on criminal tax cases and that there was not, nor had there ever been, an open criminal case on petitioner. In his response to these renewed motions, petitioner reiterated his earlier positions and interposed various frivolous objections to the Sawyer affidavit.
On October 19, 1983, the Court granted both of respondent's motions. We entered an order deeming admitted certain paragraphs of respondent's Request for Admissions and directing petitioner to answer fully and completely respondent's Interrogatories and to produce to respondent's trial counsel the documents sought in respondent's Request for Production of Documents. Petitioner was ordered to comply with these discovery orders by November 21, 1983. In the Memorandum Sur Order attached to this order, we held petitioner's Fifth Amendment claim to be “entirely frivolous,” stating:
There is nothing in this record remotely indicating that petitioner is faced with substantial hazards of self-incrimination or that he had reasonable cause to apprehend such danger. Nowhere does he validly explain his fear of criminal prosecution. Indeed, he can't for respondent states that there is no prior or pending criminal investigation of petitioner for the years at bar.
With respect to respondent's interrogatory and document requests, we stated:
A review of those requests reveals that they seek documents and answers relevant and material to the issues at dispute in this case. The documents are or should be in the possession, custody or control of petitioner and should be produced. * * * With respect to the interrogatories, all of the information sought should be within the personal knowledge of petitioner, and the Court will direct that the interrogatories be properly and fully answered.
Finally, we held petitioner's responses to respondent's interrogatory and document requests to be “frivolous and deficient,” and petitioner's “objections” to respondent's motions to compel to be “wholly frivolous.”
Included among the matters deemed admitted was the fact that the petitioner herein was the same person as the petitioner in docket No. 14421–81. In that case (Dusha v. Commissioner, supra), we dismissed petitioner's petition under Rule 104(c) as a sanction for his failure to comply with this Court's discovery order. In that case, as in the instant case, petitioner raised Fifth Amendment claims in resisting respondent's Interrogatories and Request for Admissions, and reiterated those same claims in “response” to the Court's discovery order. In that case, we held that petitioner's Fifth Amendment claim was “frivolous and for purposes of delay.” Dusha v. Commissioner, supra.
On November 19, 1983, petitioner sent to respondent's trial attorney two documents, styled “Plaintiff's [sic] Reply to Respondent [sic] Attorney [sic] Interrogatory and Order of the Court” and “Plaintiff's [sic] Reply to Respondent's Attorney [sic] Request for Documents and Order of the Court.” In these documents, petitioner (1) restated his position that “the documents requested either do not exist or are not in the plaintiff's [sic] individual possession, custody or control * * *;” (2) adhered to the same frivolous Fifth Amendment claim already rejected by the Court; and (3) reiterated his offer “to amend this reply in exchange for immunity from criminal prosecution being obtained for plaintiff [sic] by respondent.” (Emphasis added.) Petitioner's so-called responses were completely unresponsive to this Court's order of October 19, 1983.
On December 12, 1983, respondent filed a motion for sanctions under Rule 104(c) for petitioner's failure to comply with this Court's discovery order of October 19, 1983. A hearing on respondent's motion was held on January 23, 1984, and respondent's counsel appeared and was heard on the motion. Although the hearing was held in San Antonio, Texas, petitioner's city of residence, petitioner did not appear when his case was called from the calendar. At the Court's direction, respondent's counsel attempted to contact petitioner to urge him to appear when respondent's motion was argued. In addition, in a telephone conversation with petitioner, the presiding judge urged petitioner to attend the hearing and offered to reschedule the hearing for his convenience. The presiding judge also warned petitioner that his case would be dismissed if he did not appear and indicate an intention to comply with the Court's order. Nonetheless, petitioner did not appear or seek to have the hearing rescheduled. The Court did, however, receive a document entitled “Plaintiff's [sic] Motion to Deny,” filed with the Court in Washington, D.C. In that document, filed as petitioner's response, petitioner reasserted his arguments previously made and rejected, including his frivolous Fifth Amendment claim.
Petitioner has not complied with this Court's order of October 19, 1983.
II
Dismissal under Rule 104(c)
Rule 104(c), Tax Court Rules of Practice and Procedure, provides as follows:
(c) Sanctions: If a party or an officer, director, or managing agent of a party or a person designated in accordance with Rule 74(b), 75(c), or 81(c) fails to obey an order made by the Court with respect to the provisions of Rule 71, 72, 73, 74, 75, 81, 82, 83, 84, or 90, the Court may make such orders as to the failure as are just, and among others the following:
(1) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the case in accordance with the claim of the party obtaining the order.
(2) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence.
(3) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the case or any part thereof, or rendering a judgment by default against the disobedient party.
(4) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of the Court the failure to obey any such order. Our Rule 104(c) is based upon Rule 37(b)(2) of the Federal Rules of Civil Procedure (“FRCP”). See note to Rule 104(c), 60 T.C. 1057, 1124 (1973). Rule 104(c) and FRCP 37(b)(2) provide various sanctions for a party‘s failure to comply with a court‘s discovery orders. In interpreting and applying our discovery rules, we normally look for guidance to court decisions interpreting their counterparts in the Federal Rules of Civil Procedure. See Rosenfeld v. Commissioner, 82 T.C. 105, 116-117, 120 (1984) ; Owens-Illinois, Inc. v. Commissioner, 76 T.C. 493, 495-496 (1981) ; Zaentz v. Commissioner, 73 T.C. 469, 473-474 (1979).
Once it has been shown that a party has not complied with a court's discovery order, sanctions under FRCP 37(b)(2) are appropriate. Societe Internationale v. Rogers, 357 U.S. 197, 206–208 (1958). See 8 Wright & Miller, Federal Practice and Procedure, §§2281–2283 (1970); 4A Moore's Federal Practice, 2d ed., §37.03[2], pp. 37–57 to 37–58 (1983). Dismissal is one of the most severe sanctions available under FRCP 37(b)(2) or under our Rule 104(c).
In Societe Internationale v. Rogers, supra, the Supreme Court construed FRCP 37(b)(2). Because of the due process concerns, the Court held that dismissal was improper where the party's failure to comply was “due to inability, and not to willfulness, bad faith, or any fault of [the party].” Societe Internationale v. Rogers, supra, 357 U.S. at 212. The Supreme Court discussed two cases involving the due process limitations upon a court's power to dismiss or default a party. In Hovey v. Elliott, 167 U.S. 409 (1897), the Supreme Court held that a defendant had been denied due process where the lower court had stricken his answer, thereby leading to a decree pro confesso without a hearing on the merits, for his refusal to obey a court order pertinent to his suit. In Hammond Packing Co. v. Arkansas, 212 U.S. 322 (1909), the Supreme Court ruled that due process had not been violated where the trial court had stricken a defendant's answer and entered a default judgment against him for his refusal to produce documents in accordance with a pretrial order. The Supreme Court stated that the trial court's actions simply reflected
In Societe Internationale v. Rogers, supra, the Supreme Court construed FRCP 37(b)(2). Because of the due process concerns, the Court held that dismissal was improper where the party's failure to comply was “due to inability, and not to willfulness, bad faith, or any fault of [the party].” Societe Internationale v. Rogers, supra, 357 U.S. at 212. The Supreme Court discussed two cases involving the due process limitations upon a court's power to dismiss or default a party. In Hovey v. Elliott, 167 U.S. 409 (1897), the Supreme Court held that a defendant had been denied due process where the lower court had stricken his answer, thereby leading to a decree pro confesso without a hearing on the merits, for his refusal to obey a court order pertinent to his suit. In Hammond Packing Co. v. Arkansas, 212 U.S. 322 (1909), the Supreme Court ruled that due process had not been violated where the trial court had stricken a defendant's answer and entered a default judgment against him for his refusal to produce documents in accordance with a pretrial order. The Supreme Court stated that the trial court's actions simply reflected . . . the undoubted right of the lawmaking power to create a presumption of fact as to the bad faith and untruth of an answer begotten from the suppression or failure to produce the proof ordered . . . . [T]he preservation of due process was secured by the presumption that the refusal to produce evidence material to the administration of due process was but an admission of the want of merit in the asserted defense. Hammond Packing Co. v. Arkansas, supra, 212 U.S. at 350–351. The Supreme Court distinguished Hovey v. Elliott, supra, on the grounds that the defendant there had been denied his right to defend “as a mere punishment.” Hammond Packing Co. v. Arkansas, supra, 212 U.S. at 350.
This rule, FRCP 37(b)(2), itself was promulgated with Hammond Packing Co. v. Arkansas, supra, and Hovey v. Elliott, supra, in mind. See Notes of Advisory Committee, Rule 37 (1937), quoted in 4A Moore's Federal Practice, supra, §37.01[3], p. 37–7. The due process standard articulated in these cases was the basis for the Supreme Court's construction of FRCP 37(b)(2) in Societe Internationale v. Rogers, supra. The Supreme Court has recently reaffirmed both the due process standard of Hammond Packing Co. v. Arkansas, supra, and its construction of FRCP 37(b)(2) in Societe Internationale v. Rogers, supra, stating “Due process is violated only if the behavior of the [party] will not support the Hammond Packing presumption. A proper application of FRCP 37(b)(2) will, as a matter of law, support such a presumption.” Insurance Corp. v. Compagnie des Bauxites, 456 U.S. 694, 706 (1982), citing Societe Internationale v. Rogers, supra.
The Supreme Court's Sociate Internationale standard has generally “been interpreted to require some element of willfulness or conscious disregard of the order” before a case may be dismissed, or default judgment rendered, under FRCP 37(b)(2). 4A Moore's Federal Practice, supra, §37.03[2], pp. 37–78 to 37–80. The Fifth Circuit (to which, barring stipulation to the contrary, any appeal would lie in this case) has had many occasions to apply the Societe Internationale standard. That court has described this standard in many ways—“flagrant bad faith,” “callous disregard” of discovery responsibilities, see Emerick v. Fenick Industries, Inc., 539 F.2d 1379, 1381 (5th Cir. 1976); “evident lack of good faith,” “willful nature of [party's] disobedience,” see Romari Corp. v. United States, 531 F.2d 296, 299 (5th Cir. l976); “deliberately obstructive conduct,” see Jones v. Louisiana State Bar Ass'n., 602 F.2d 94, 97 (5th Cir. 1979); “willful effort to both evade and frustrate discovery,” see Morton v. Harris, 628 F.2d 438, 440 (5th Cir. 1980), cert. denied sub nom. Morton v. Schweiker, 450 U.S. 1044 (1981).
Other Circuit Courts have also generally striven to give effect to Societe Internationale's “willfulness, bad faith or [other] fault” standard. See Damiani v. Rhode Island Hosp., 704 F.2d 12, 15–17 (1st Cir. 1983) and cases cited therein; Lorin Corp. v. Goto & Co., Ltd., 700 F.2d 1202, 1207–1208 (8th Cir. 1983); Aztec Steel Co. v. Florida Steel Corp., 691 F.2d 480, 481–482 (11th Cir. 1982) cert. denied 460 U.S. 1040, 103 S. Ct. 1433 (1983); Baker v. Limber, 647 F.2d 912, 918 (9th Cir. 1981).
With one exception, neither this Court nor the Circuit Courts have attempted to articulate the standard to be applied by this Court in dismissing cases under Rule 104(c)(3) for violation of our discovery orders. In Fox v. Commissioner, 718 F.2d 251 (7th Cir. 1983), the Seventh Circuit affirmed our dismissal of the taxpayers' petition for their failure to comply with our discovery orders. In Fox, the court held that the considerations limiting a district court's discretion in dismissing a case as a discovery sanction under FRCP Rule 37 should equally limit our discretion in dismissing a taxpayer's petition under Rule 104. Fox v. Commissioner, supra, 718 F.2d at 255. Applying the “standards” it discerned from the case law involving FRCP 37, the Fox court stated, 718 F.2d at 255, that:
* * * [T]he Tax Court may not dismiss a case as a discovery sanction pursuant to T.C.R. [Tax Court Rule] 104 unless the court finds that (1) the failure to comply with discovery was undertaken willfully and in bad faith, and (2) the party against whom sanctions are to be imposed totally failed to respond. [Emphasis is added.] The Fox court found that both tests had been met and affirmed our dismissal of the taxpayers' petition.
With all due respect to the Seventh Circuit, we believe that the Fox court failed to distinguish between our Rule 104(a) and Rule 104 (c) and consequently applied the Federal case law under FRCP 37(d) rather than that under FRCP 37(b)(2). We think the latter is the applicable law. Under the facts of that particular case, the result would probably be the same under either the Fox standard or under the Societe Internationale v. Rogers standard. However, application of the proper standard is a matter of some importance to us as a trial court of national jurisdiction, if we are to administer our rules effectively.
As we read the case law, the courts have not required a total failure to comply with the discovery request as a prerequisite to dismissal under FRCP 37(b)(2). The Supreme Court and the Circuit Courts of Appeals have consistently upheld FRCP 37(b) dismissals (against plaintiffs) and default judgments (against defendants) where the litigants' compliance with the discovery request was inadequate or incomplete. National Hockey League v. Met. Hockey Club, 427 U.S. 639 (1976); Lorin Corp. v. Goto & Co., Ltd., supra, 700 F.2d at 1208; Emerick v. Fenick Industries, Inc., supra; Romari Corp. v. United States, supra.
In Loctite Corp. v. Fel-Pro, Inc., 667 F.2d 577 (1981), the Seventh Circuit affirmed the District Court's dismissal of Loctite's action under FRCP 37(b)(2)(C) for its failure to comply fully with the District Court's discovery orders. From the Court's opinion it is clear that Loctite had, to some extent, complied with the discovery order. Indeed, on appeal, Loctite argued it had fully complied, but the Seventh Circuit rejected its argument, stating, 667 F.2d at 581:
Loctite's arguments stress literal compliance, but nowhere appear to recognize that it had a duty not only to comply minimally with what was ordered, but to assist in the resolution of the suit. Instead, Loctite balked at every attempt to clarify the issues; it now proffers technical arguments to induce this court to believe its conduct was acceptable. [Emphasis added.] The Seventh Circuit's discussion of the standards for dismissal and appellate review of such a dismissal clearly indicates the court's understanding that any sanction, including dismissal, is available when the recalcitrant party has not fully complied with the court's discovery order. Application of the Seventh Circuit's Fox standard (total noncompliance) to the facts of Loctite would have required reversal, not affirmance.