Opinion
Civil Action No. 97-2671, SECTION N.
July 14, 2004
ORDER AND REASONS
Before the Court are the following motions: (1) Beaird Industries' Motion to Dismiss; and (2) Fluor Daniel's Motion to Dismiss for Failure to Prosecute. For the reasons that follow, both motions are GRANTED IN PART, in that Beverly Moll's claims against defendants are dismissed with prejudice, and DENIED IN PART, in that the motions are denied insofar as defendants seek dismissal of the claims of Mark Moll.
I. BACKGROUND
Plaintiff Mark Moll and his then-wife, Beverly Moll, filed this action in state court on August 7, 1997, seeking damages for injuries that Mark Moll sustained while working on an industrial furnace in Union Carbide's petrochemical plant in Taft, Louisiana. On March 17, 1997, while Moll was attempting to release pressurized steam from the furnace, the exterior muffler disconnected from its piping, causing a piece of the muffler to strike him in the face. The muffler was specified by ABB Lummus Global, Inc. and Combustion Engineering, Inc. (collectively, "Lummus"); was designed and fabricated offsite by Fluor Daniel, Inc. ("Fluor Daniel") and Beaird Industries, Inc. ("Beaird"); and was installed by the general contractor, H.B. Zachry Company ("Zachry"). Plaintiffs sued each of these companies.
It has come to the Court's attention that Mark and Beverly Moll were divorced during the pendency of this action.
The matter was removed to this Court, with Judge Edith Brown Clement presiding. In November 1998, defendant Lummus moved for summary judgment on grounds that Louisiana's ten-year peremptive period for actions involving the design and/or construction of immovables had expired. See La.Rev.Stat. § 9:2772. Initially, Judge Clement denied the motion. On reconsideration, however, on March 19, 1999, Judge Clement granted the motion. Shortly thereafter, on May 5, 1999, Judge Clement granted a motion dismissing Zachry on the same grounds. Pursuant to Rule 54(b), the Court issued final judgments, and plaintiffs appealed, along with defendants Beaird and Fluor Daniel. Upon joint motion of these appellants, Judge Clement stayed this action pending resolution of the appeals. (Rec.Doc. 101). Judge Clement also closed the matter for statistical purposes. Id.
One year later, on July 24, 2000, the Fifth Circuit affirmed Judge Clement's decision dismissing Lummus and Zachary. The case, however, continued to lie closed and dormant. Then, on July 16, 2003, nearly three years to the date after the Fifth Circuit had issued its ruling, plaintiffs moved to reopen the case. Defendant Beaird opposed the motion to reopen on grounds that the matter should be dismissed for plaintiffs' failure to prosecute. The Court reopened the matter for administrative purposes only and set Beaird's request for hearing, construing it as a motion to dismiss. Shortly thereafter, Fluor Daniel filed a separate motion to dismiss for failure to prosecute.
On October 15, 2003, this Court issued its Order and Reasons denying the motions to dismiss without prejudice to defendants' right to re-urge the motions. (Rec.Doc. 119). Specifically, the Court found that the case presented "a clear record of delay, notwithstanding plaintiffs' arguments to the contrary" as plaintiffs took no action for nearly three years and the case was, at the time, over six years old. Id., p. 4. However, when considering whether aggravating factors warranting the sanction of dismissal were present, the Court found that the record did not establish the existence of any aggravating factor, such as the extent of the plaintiffs' personal responsibility, if any, or that the delay was the result of intentional conduct. With respect to any prejudice to the defendants, the Court agreed with defendants that the potential for prejudice existed. However, because the Court could then only speculate as to the form that such prejudice might take, the Court found that it was impossible to determine whether lesser sanctions might be adequate to remedy the prejudice. Accordingly, the Court denied defendants' motions without prejudice, reserving the right to re-urge the motions to dismiss, or alternatively seek lesser sanctions, should discovery reveal facts supporting a dismissal with prejudice.
Beaird and Fluor Daniel now re-urge their motions to dismiss for failure to prosecute, arguing that plaintiffs' failure to prosecute the matter has been unreasonable and has caused defendants unfair prejudice.
II. LAW AND ANALYSIS
A district court's power to dismiss an action for failure to prosecute is well established. It may do so upon a defendant's motion to dismiss pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 41(b). It "also has the inherent authority to dismiss an action sua sponte, without motion by a defendant." Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 1997), cert. denied, 522 U.S. 875 (1997) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 630-31(1962)). As the Supreme Court has recognized, this inherent authority "is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the District Court." Link, 370 U.S. at 629.
However, as the Fifth Circuit has cautioned, this "sanction of dismissal is the most severe sanction that a court may apply, and its use must be tempered by a careful exercise of judicial discretion." Durham v. Florida East Coast Ry. Co., 385 F.2d 366, 368 (5th Cir. 1967) (internal quotation omitted). Accordingly, the Fifth Circuit has held consistently "that Rule 41(b) dismissals with prejudice will be affirmed only upon a showing of a clear record of delay or contumacious conduct by the plaintiff, . . . and where lesser sanctions would not serve the best interests of justice." Rogers v. Kroger Co., 669 F.2d 317, 320 (5th Cir. 1982) (quoting Pond v. Braniff Airways, Inc., 453 F.2d 347, 349 (5th Cir. 1972)) (emphasis added) (citation and internal quotations omitted). It is essential that the Court expressly consider lesser sanctions. Boudwin v. Graystone Ins. Co., Ltd., 756 F.2d 399, 401 (5th Cir. 1985). Moreover, this "consideration, and the court's findings that lesser sanctions would be inadequate, must be spread upon the record." Id.
In addition, the Fifth Circuit's record of affirmations and reversals on the subject reveals that the sanction of dismissal "is reserved for the most egregious of cases, usually cases where the requisite factors of clear delay and ineffective lesser sanctions are bolstered by the presence of at least one . . . aggravating factor." Rogers, 669 F.2d at 320; see also Nilson v. Ikon Office Solutions, Inc., 2002 WL 742694 *3 (N.D. Tex. 2002). Such aggravating factors include: "[1] the extent to which the plaintiff, as distinguished from his counsel, was personally responsible for the delay, [2] the degree of actual prejudice to the defendant, and [3] whether the delay was the result of intentional conduct." Id. A. Plaintiff Mark Moll
As this Court stated in the October 15, 2003 Order and Reasons, this case presents a clear record of delay from July of 2000 through July of 2003. While the record does not reveal that Mark Moll was personally responsible for the delay, nor does the record show that the delay was the result of intentional conduct, defendants have presented evidence of the prejudice caused by plaintiff's delay in prosecution. Specifically, since the Court re-opened the matter, Beaird sought to have the physical evidence from the accident scene tested and evaluated by Beaird's expert, Dr. Courtney Busch. Despite diligent efforts, Union Carbide has been unable to locate the physical evidence related to plaintiff's accident. See Affidavit of John Kobe, signed April 20, 2004 (Beaird's Exhibit "C). While plaintiffs may not be directly responsible for the loss of evidence not in their custody or control, it is highly likely that the three-year delay in this case contributed to Union Carbide's having lost the evidence. As plaintiff's claims against Beaird and Fluor Daniel are based on alleged violations of the Louisiana Products Liability Act, La.R.S. 9:2800.54, et seq., defendants clearly have been prejudiced by the loss of the physical evidence which is the subject of plaintiff's claims.
Mark Moll has testified that he contacted his attorney "several times", which defendants argue is evidence of plaintiff's complicity in the delay. See Deposition of Mark Moll, April 12, 2004, p. 71 (Beaird's Exhibit "A"). On the other hand, plaintiff argues that the fact of such communication weighs heavily against dismissal. Based on this limited testimony, and considering that, since the case was reopened, plaintiff has answered discovery and attended depositions, the Court cannot find that the record supports a finding of personal responsibility on the part of Mark Moll for the delay in this matter.
According to plaintiffs, the delay occurred because the attorney handling the case left the firm. Thereafter, despite the fact that two other attorneys in the firm were listed as counsel of record, the case allegedly fell through the cracks. Although inexcusable, such conduct cannot be described as intentional.
This was not the first time that counsel for Beaird requested the physical evidence from the accident scene for testing and scientific inspection and evaluation. In May of 1999, Dr. Busch traveled to the Union Carbide facility, where he was allowed to view the remains of the silencer that is the subject of plaintiff's lawsuit. See Affidavit of Courtney C. Busch, P.E., Ph.D., signed April 23, 2004 (Beaird's Exhibit "B"). Dr. Busch, however, was not allowed to remove any of the physical evidence from the box in which it was stored, nor was Dr. Busch allowed to perform any tests on the physical evidence. See id.
Because the Court finds the presence of both clear delay and prejudice to the defendants, the Court must consider whether less severe sanctions would serve the best interests of justice. In Rogers v. Kroger Company, supra, the Fifth Circuit noted several such lesser sanctions which might be considered: "Assessments of fines, costs, or damages against the plaintiff or his counsel, attorney disciplinary measures, conditional dismissal, dismissal without prejudice, and explicit warnings are preliminary means or less severe sanctions that may be used to safeguard a court's undoubted right to control its docket." 669 F.2d at 321-22.
Since the time of the Court's previous denial of defendants' motions to dismiss, plaintiff has cooperated in the discovery process. The new development with respect to the reurged motions is the parties' discovery that Union Carbide cannot find the physical evidence, the silencer, at issue. As plaintiff correctly states, the Court cannot punish plaintiff for spoilation of evidence for which plaintiff bears no fault. Moreover, the Court is not convinced that this case presents the type of egregious conduct which warrants the most severe sanction of dismissal with prejudice.
Defendants likely would argue here that plaintiff is at least at fault for the spoilation of evidence because plaintiff was aware or should have been aware that his case was not being prosecuted for approximately three years. However, because plaintiff did not have control or custody over the physical evidence at issue and because defendants have presented no evidence of bad faith or improper motive on the part of plaintiff, the Court cannot hold plaintiff responsible for the loss. See Menges v. Cliffs Drilling Co., 2002 WL 765082 *1 (E.D.La. June 12, 2000) ("The spoilation of evidence doctrine concerns the intentional destruction of relevant evidence").
Nevertheless, considering the clear record of delay and the prejudice to the defendant, the Court finds that a sanction less severe than dismissal with prejudice is warranted here. Having considered the lesser sanctions that may be used here, the Court finds that a monetary assessment against plaintiff personally or a conditional dismissal would prove an excessively punitive course. Therefore, at this time, the Court will only caution plaintiff that any future delays — accompanied by an aggravating factor — will likely subject plaintiff to dismissal of his case with prejudice.
B. Plaintiff Beverly Moll
The claims of Beverly Moll are more troublesome. As stated earlier, the Court is presented with a clear record of delay and at least one aggravating factor — prejudice to defendants. However, the record also reveals evidence of personal responsibility and/or intentional conduct on the part of Beverly Moll for the delay in the prosecution of this matter. For example, Beverly Moll, unlike Mark Moll, has not answered any discovery requests and has not been re-deposed since this case was re-opened. Instead, Beverly Moll has completely disappeared from the picture. It is undisputed that plaintiffs' counsel has no information concerning Ms. Moll's current location or even her new name following re-marriage. Furthermore, the presentation in the opposition memorandum betrays the fact that Beverly Moll seemingly has no interest in the prosecution of this case.
Beverly Moll is seeking damages for the alleged loss of consortium suffered when her then-spouse was injured.
In this case, Beverly Moll's lack of communication with her attorney demonstrates overwhelming responsibility on her part for failing to prosecute the matter and is further evidence of intentional conduct contributing to the lack of prosecution in this case. The Court agrees with Beaird in its argument supporting dismissal of Ms. Moll's claims: "That the party is absent and seemingly demonstrates no interest in prosecution of this matter is exactly the reason this matter should be dismissed. If Beverly Moll were concerned about the progress of her case, she would have maintained contacts with her attorney." Beaird's Suppl. Mem., p. 2.
Having considered the lesser sanctions that the Court may impose, the Court finds that sanctions such as a monetary assessment, conditional dismissal, or dismissal without prejudice, would be futile and would not serve the best interests of justice with respect to the claims of Beverly Moll. With the exception of a few pleadings filed on her behalf since the reopening of the case, no steps have been taken in the prosecution of Beverly Moll's claims against the various defendants for over five years. Accordingly, the Court finds that Ms. Moll's conduct (or lack thereof) is most egregious, warranting the sanction of dismissal. Therefore, the Court will grant defendants' motions insofar as defendants seek dismissal with prejudice of the claims of Beverly Moll.
III. CONCLUSION
Accordingly, IT IS ORDERED that
(1) Defendants' motions are GRANTED IN PART, in that the claims of Beverly Moll are dismissed with prejudice; and
(2) Defendants' motions are DENIED IN PART, in that the motions are denied insofar as defendants seek dismissal of the claims of Mark Moll.