Beruflich Dokumente
Kultur Dokumente
No. 12-2241
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
T. S. Ellis, III, Senior
District Judge. (1:11-cv-01345-TSE-IDD)
Argued:
Decided:
November 5, 2013
Management
courts
International
Company
dismissal
LLC
of
(DynCorp).
(PMC)
its
The
appeals
suit
district
from
against
court
the
DynCorp
dismissed
repeated
discovery
abuses;
and
second,
based
on
its
I.
DynCorp
contracted
with
the
United
States
Department
of
with
PMC
(the
Subcontract)
for
operations
and
PMC
executed
the
Subcontract
with
DynCorp
through
its
identified
PMC
Project
Manager
Greg
Byers
provided
that
PMC
as
PMCs
point
of
Subcontract
would
periodically
[n]o
oral
statement
of
any
person
shall
modify
or
Account).
DynCorp
personnel
contacted
PMC
through
issued
Cure
Notice
to
PMC,
notifying
PMC
of
proposal
from
PMC.
In
response,
PMC
requested
After
the
termination
of
the
Subcontract,
DynCorp
was
diversity
jurisdiction,
alleging
breach
of
contract,
with
PMC
by
making
payments
to
the
Lebanon
Account
submitted
discovery
plan,
representing
that
all
Cater-Corp,
had
received
significant
payments
from
the
Lebanon Account.
After the close of discovery, DynCorp moved for partial
summary judgment on the issue of whether the Subcontract had
5
by
DynCorp
into
the
Lebanon
Account.
The
remaining
filed
motion
in
limine
to
preclude
PMC
from
of
discovery,
leaving
DynCorp
with
no
ability
to
take
summary
judgment.
In
addition,
DynCorp
argued
that
PMCs
failed
Lebanon
to
account
Account
to
for
PMC
millions
of
employees
dollars
and
paid
from
the
subcontractors
in
of
and
acquiescence
to
Fawazs
use
of
the
Lebanon
DynCorp
received
these
third-party
7
documents,
and
long
after
the
close
of
discovery,
did
PMC
produce
an
additional
use
of
the
Lebanon
Account.
This
late
production,
PMCs
Philip
Rule
30(b)(6)
Zacharia,
and
representatives,
deprived
DynCorp
Rabea
of
Al-Muhanna
access
to
and
evidence
PMCs
late-produced
documents
revealed
that
PMCs
Rule
before
August
11,
2012,
at
place
of
DynCorps
that
the
factual
substance
of
each
late-produced
damages
and
the
timeliness
of
PMCs
disclosure
of
this
until
August
13,
2012,
two
days
before
the trial
again
courts
sought
inherent
dismissal
authority
of
to
the
impose
case
under
the
district
sanctions.
The
district
district
court
expressly
declined
to
dismiss
the
case
and
in
additional
limine
and
sanctions,
made
clear
including
that
dismissal,
it
would
if
PMC
consider
failed
to
August
13,
PMC
offered
Al-Muhanna
and
Zacharia
for
Zacharia
were
no
longer
its
Rule
30(b)(6)
witnesses
and
(J.A. 88.)
10
the
district
alternatively,
court
dismiss
strike
the
case.
PMCs
On
claim
August
of
15,
damages
the
or
district
the
identity
of
PMCs
subcontractors,
the
11
remedying
continuing
court
the
prejudice
discovery
detailed
the
to
DynCorp
defalcations.
extent
of
(J.A.
PMCs
caused
102.)
abusive
by
The
PMCs
district
behavior
in
this
case: PMC did not provide its measure of damages until after the
close of discovery; PMC refused to account for costs avoided in
its
measure
of
damages,
as
required
by
law;
PMC
withheld
documents showing that funds were paid from the Lebanon Account
to PMC subcontractors; and PMC withheld documents showing that
PMC ownership had contemporaneous knowledge of those payments.
Specifically,
withheld
the
district
number
of
court
found
documents
that
showing
PMC
that
improperly
Al-Muhanna
that
deposition
these
documents
testimony
that
directly
contradicted
PMC
ceased
had
Al-Muhannas
payments
to
its
12
all
[A]ccount,
[A]ccount
to
answered
that
funds
received
as
as
satisfy
it
well
all
obligations
has
not
by
PMC
from
payments
the
from
Lebanon
the
of
PMC.
(J.A.
received
funds
from
Lebanon
1594.)
Mr.
PMC
Fawazs
district
court
also
noted
that
PMCs
Rule
30(b)(6)
not
available
for
deposition
until
August
13,
two
days
before the trial date. It noted that PMC sent a series of latenight
emails
contained
in
on
135
August
12,
separate
producing
and
Excel
number
of
attachments
documents
for
the
PMC also took the position that neither Al-Muhanna nor Zacharia
was appearing as a Rule 30(b)(6) deponent and named an entirely
new
Rule
30(b)(6)
depositions
of
witness.
Al-Muhanna
And
and
when
DynCorp
Zacharia,
took
both
the
witnesses
new
gave
in
Schaffer
Equipment,
invoking
its
inherent
102
(quoting
Schaffer
Equip.,
11
F.3d
at
462).)
The
defalcations
prejudiced
by
PMCs
and
that
actions.
DynCorp
The
was
district
significantly
court
further
concluded that its prior sanctions did not remedy the prejudice
to
DynCorp.
Because
no
further
actions
on
PMCs
part
could
dismissal
PMCs
case
was
with
warranted.
prejudice
The
and
district
entered
its
court
final
14
II.
We
review
district
courts
decision
to
exercise
its
Equip.,
11
F.3d
at
462.
We
also
review
district
III.
PMC principally argues on appeal that the district court
abused its discretion by imposing a sanction of dismissal of its
case against DynCorp. 6 We have previously recognized that, [d]ue
to the very nature of the court as an institution, it must and
does have an inherent power to impose order, respect, decorum,
15
the
entered
dismissal
with
dismissal
are
the
of
case,
greatest
appropriate
though
caution.
when
such
Id.
party
at
orders
462.
deceives
must
be
Orders
of
court
or
orderly
administration
of
justice
or
undermines
the
exercising
its
inherent
power
to
dismiss
case
course
discovery
of
this
defalcations.
litigation
(J.A.
has
100.)
been
The
marred
court
set
by
PMCs
out
in
answers
testimony,
during
to
interrogatories,
withholding
discovery,
and
large
providing
number
making
late
of
false
deposition
relevant
disclosures
documents
of
material
The
concluding
district
that
court
PMC,
then
the
addressed
client
rather
the
second
than
factor,
counsel,
has
court
substantial
found
prejudice
that
to
these
the
defalcations
judicial
have
process;
caused
DynCorp
has
to
these
conclusions
produce
relevant
by
finding
documents
that
precluded
PMCs
willful
DynCorp
from
imposed lesser sanctions, including ordering PMC to produce AlMuhanna and Zacharia for additional depositions and ordering all
facts contained in withheld documents to be deemed admitted, it
had declined to impose the sanction of dismissal. The district
court
further
found
that,
notwithstanding
its
initial
those
lesser
sanctions
did
not
remedy
the
prejudice
to
reversal
of
the
district
courts
order.
Among
other
the
falsely
district
at
her
courts
deposition
finding
is
not
that
Al-Muhanna
clearly
testified
erroneous.
In
her
with
DynCorp?
(J.A.
158687.)
Al-Muhanna
answered,
dont
know if I could answer. But for us, PMC is [an] illegal account.
[The] Lebanon bank account is illegal. So I cannot assume that
there [are] any payments that came from it in the correctI
dont know what the word is. (J.A. 1587.) Al-Muhanna was then
asked, Do you know if PMC received any benefit in connection
with the [Subcontract] with DynCorp from payments made out of
the Lebanon [A]ccount? She answered, No. (J.A. 1587.)
Al-Muhannas testimony is directly contradicted by, among
other things, an email she sent on June 3, 2009, in which she
asked to see the invoices for the payment done by Mr. Hussein
[Fawaz], showing that she knew that Fawaz was making payments
out of the Lebanon Account during the term of the Subcontract.
(J.A.
978.)
On
August
31,
2009,
Al-Muhanna
received
another
Lebanon
Account.
(J.A.
991.)
And
on
May
18,
2010,
Al-
provided
false
deposition
testimony
is
fully
court
of
appeals
may
reverse
factual
finding
reviewed
for
clear error only when left with a definite and firm conviction
that a mistake has been committed).
PMC also argues that it was improper for the district court
to consider its false interrogatory response because DynCorp did
not
raise
the
false
interrogatory
response
as
reason
for
arguments
raised
by
the
parties
when
the
court
is
of
the
Federal
Rules
of
Civil
Procedure
would
be
provide
discovery,
or
one
in
regard
to
discovery
20
need
of
statute
or
rule
for
its
definition,
and
it
is
of
the
case
in
choosing
the
appropriate
sanction.
See
assessing
the
totality
of
the
sanctioned
attorneys
consider
sanctions
on
its
own
motion
and
without
any
district
courts
authority
and
consideration
had
full
of
the
opportunity
use
to
of
its
inherent
argue
its
position
in
the
[i]dentify
record.
all
When
funds
asked
in
received
by
Interrogatory
PMC
from
No.
the
12
to
Lebanon
which
demonstrate
that
Al-Muhanna
had
personal,
similarly
fails
to
challenge
any
of
the
district
that
it
answered
Interrogatory
22
No.
12
truthfully.
As
courts
culpability
finding
was
not
made
in
clear
PMCs
Rule
30(b)(6)
representatives
and
to
conduct
Corp.,
271
F.3d
583,
590
(4th
Cir.
2001)
(emphasis
the
above
reasons,
we
affirm
the
district
courts
IV.
For all the foregoing reasons, the judgment of the district
court is
AFFIRMED.
24