Dolores Comstock, Special Administrator of the Estate of William Gumby, Plaintiff - Appellant
UPS Ground Freight, Inc.; Allen Howard, Defendants - Appellees
Submitted September 8, 2014.
Appeal from United States District Court for the Eastern District of Arkansas - Little Rock.
For Dolores Comstock, Special Administrator of the Estate of William Gumby, Plaintiff - Appellant: Brian Gene Brooks, Greenbrier, AR.
For UPS Ground Freight, Inc., Allen Howard, Defendants - Appellees: Robert Andrew Cox, Ronna D. Kinsella, GLASSMAN & EDWARDS, Memphis, TN.
Before BYE, COLLOTON, and GRUENDER, Circuit Judges.
GRUENDER, Circuit Judge.
Responding to serious misconduct during discovery, the district court sanctioned Dolores Comstock by dismissing her lawsuit. Comstock appeals this dismissal, and we affirm.
This suit arose from a nighttime automobile accident in February 2011. After Allen Howard allegedly rear-ended a vehicle driven by William Gumby, Gumby sued Howard and his employer, UPS Ground Freight, Inc. (together, " UPS" ). Contending that Gumby's health might have contributed to the accident, UPS requested information such as Gumby's medical records and the identity of anyone with knowledge concerning this defense. In response to UPS's first set of interrogatories, Gumby provided UPS with the names of one physician and one hospital from which he had received pre-accident care.
Gumby died about a year later. Dolores Comstock, Gumby's daughter and the administrator of his estate, was substituted as plaintiff. Both Gumby and then Comstock were represented by Jessica Virden. In July 2012, nearly a year after discovery began, Comstock produced documents revealing many more of Gumby's medical providers, but even then, Comstock still did not produce all the requested medical information. On August 20, 2012, the court ordered Comstock to complete this production by September 28. She failed to do so. In December 2012, Comstock provided UPS with over 3,000 pages of documents, many of which she had already produced. Among those 3,000 pages, however, were new documents showing that Gumby had a history of vision problems; suffered from dizziness, paranoia, and hallucinations while driving; had been instructed not to drive at night; and had been hospitalized hours before the accident. Indeed, Comstock herself had called law enforcement that night, worried because Gumby, without telling his family, had left Pennsylvania to drive home to Arkansas. This production came well after UPS had deposed Gumby and some of his family members.
The district court noted further misconduct beyond Comstock's failure to produce the medical information. For example, Comstock and Virden " strain[ed] credulity" in representing that they did not know of Gumby's poor health before the accident. Moreover, Comstock had hired an expert accident reconstructionist, but Comstock did not, as required, produce all the expert's test results to UPS. In response to this misconduct, the court found that Comstock had caused " extreme prejudice" to UPS by intentionally violating the August 2012 order and Federal Rule of Civil Procedure 26. Granting UPS's motion, the court sanctioned Comstock under Federal Rule of Civil Procedure 37(b)(2) by dismissing the suit. Comstock appeals.
Although we have said that " 'we more closely scrutinize [the sanction of] dismissal,'" ultimately we review discovery sanctions for abuse of discretion. Bergstrom v. Frascone, 744 F.3d 571, 576 (8th Cir. 2014) (quoting Sentis Grp., Inc.v. Shell Oil Co., 559 F.3d 888, 899 (8th Cir. 2009)); see also Sentis Grp., Inc. v. Shell Oil Co., 763 F.3d 919, 924 (8th Cir. 2014). Under Rule 37, " [d]ismissal as a discovery sanction is available only if there is '(1) an order compelling discovery, (2) a willful violation of the order, and (3) prejudice.'" Bergstrom, 744 F.3d at 576 (quoting Schoffstall v. Henderson, 223 F.3d 818, 823 (8th Cir. 2000)). " '[I]n this circuit, before dismissing a case under Rule 37(b)(2) the court must investigate whether a sanction less extreme than dismissal would suffice, unless the party's failure was deliberate or in bad faith.'" Id. (quoting Avionic Co. v. Gen. Dynamics Corp., 957 F.2d 555, 558 (8th Cir. 1992)); see also Denton v. Mr. Swiss of Mo., Inc., 564 F.2d 236, 240-41 (8th Cir. 1977).
Dismissal of Comstock's lawsuit was available as a discovery sanction because the August 2012 order compelled discovery, and the court found that Comstock intentionally failed to comply with the order, thereby causing prejudice to UPS. Though Comstock argues that the prejudice was curable, she does not contest any aspect of the court's finding, including that UPS was prejudiced. We note just one example of this prejudice, that Comstock's non-production hampered UPS's ability to conduct several depositions, including that of Gumby, who cannot now be re-deposed. See Nat'l Liberty Corp. v. Wal-Mart Stores, Inc., 120 F.3d 913, 917 (8th Cir. 1997) (finding no clear error in determination that need to retake depositions was prejudicial); see also ACLU of Minn. v. Tarek ibn Ziyad Acad., 643 F.3d 1088, ...