United States v. One 1987 BMW 325 , 985 F.2d 655 ( 1993 )

February 18, 1993
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-1827
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
ONE 1987 BMW 325, ETC., ET AL.,
Defendants.
JOHN TENAGLIA,
Claimant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Norman H. Stahl, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Cyr, Circuit Judge.
Thomas Kerner for appellant.
Michael J. Gunnison, Assistant United States Attorney, with
whom Jeffrey R. Howard, United States Attorney, was on brief, for
appellee.
February 18, 1993
SELYA, Circuit Judge. This appeal arrives at our
SELYA, Circuit Judge.
doorstep after meandering along the byways that link the
Supplemental Rules for Certain Admiralty and Maritime Claims to
the Federal Rules of Civil Procedure. We conclude that, given
the way in which the Admiralty Rules and the Civil Rules
intersect, the district court's order striking appellant's claim
for failure to answer interrogatories was premature.
Consequently, we reverse the order, vacate the judgment, and
remand for further proceedings.
I.
Historical Prolegomenon
On March 27, 1991, police officer Sean Billert arrived
at the scene of a two-car accident in North Conway, New
Hampshire. One of the vehicles involved was a 1987 BMW operated
by claimant-appellant John Tenaglia. In the course of a routine
interview, Officer Billert caught the scent of burnt marijuana on
Tenaglia's clothing. A search of the BMW revealed traces of
marijuana and assorted drug paraphernalia. Authorities removed
the car to a police compound and, during a further search,
discovered $14,667 in used bills plus the key to a safe-deposit
box. When opened, the box yielded an additional $16,000 in cash.
The State undertook to prosecute Tenaglia on a
narcotics charge. Meanwhile, the federal government notified him
that it planned to commandeer the cash and car. Toward that end,
the government filed a forfeiture complaint in federal district
court on July 3, 1991. See 21 U.S.C. 881(a)(4), (a)(6) (1988).
2
The complaint, festooned with ninety-nine interrogatories,1
alleged that the cash represented the avails of narcotics
trafficking; that the vehicle had been purchased with drug
proceeds; and, moreover, that it had been used in furtherance of
a drug-related crime.
Tenaglia received the forfeiture suit papers on August
9, 1991. He promptly filed a claim and an answer to the
complaint but boycotted the interrogatories. On September 18,
the government moved to strike the claim because the
interrogatories remained unanswered. Tenaglia responded by
requesting a stay of proceedings pending the outcome of the state
criminal prosecution, or in the alternative, an order sealing the
record in the forfeiture action so that any admissions could not
be used against him. Tenaglia subsequently answered two of the
interrogatories, contending that those answers, without more,
sufficed to clarify his standing.
On May 12, 1992, the district court granted the
government's longstanding motion to strike. The court ruled that
Tenaglia, by failing to answer the interrogatories, had not
perfected the right to prosecute his claim. The BMW and the cash
1The interrogatories were served with the complaint pursuant
to Adm. Rule C(6), which provides in pertinent part:
The claimant of property that is the subject
of an action in rem shall file a claim within
10 days after process has been executed . . .
. At the time of answering the claimant
shall also serve answers to any
interrogatories served with the complaint.
In actions in rem interrogatories may be so
served without leave of court.
3
were declared forfeit. This appeal ensued.
On appeal, Tenaglia argues that the lower court, for
all intents and purposes, dismissed his claim in contravention of
Fed. R. Civ. P. 37 (which, as Tenaglia reads it, does not permit
dismissal as an initial sanction for failure to answer
interrogatories).2 The government counterattacks on three
fronts. First, it asserts that, because Tenaglia did not
adequately direct the district court's attention to Civil Rule 37
during the course of the proceedings below, he is precluded from
relying on the rule at this juncture. Second, the government
asserts that Civil Rule 37 is inapposite in respect to
interrogatories propounded pursuant to Adm. R. C(6). Third, the
government asserts that, even considering Civil Rule 37, the
district court's order is supportable. We limn the appropriate
standard of review and thereafter address Tenaglia's appeal by
tracking the government's assertions.
II.
2The district court, technically speaking, struck Tenaglia's
claim, as opposed to dismissing it. We think, however, that this
is a distinction bereft of any meaningful difference. Although
in many cases the upshot of dismissal is more grievous than the
upshot of an order to strike, dismissal and the striking of a
claim are quintessentially synonymous in the forfeiture context.
This is so because either order results in the failure of the
entire claim. See United States v. Contents of Accounts Nos.
3034504504 and 144-07143, Etc., 971 F.2d 974, 978 & n.3 (3d Cir.
1992), petition for cert. filed (Jan. 6, 1993). Thus, we treat
the district court's order to strike Tenaglia's entire claim as
the functional equivalent of a dismissal order. We note,
moreover, that under Fed. R. Civ. P. 37, neither dismissal nor
striking of a pleading is a permissible sanction for a delay in
making discovery unless the offending party first violates a
preexisting court order.
4
Standard of Review
It is within the trial court's fief to choose
appropriate sanctions when a party does not comply with
procedural rules. See Media Duplication Servs., Ltd. v. HDG
Software, Inc., 928 F.2d 1228, 1238 (1st Cir. 1991)
("Considerable discretion is vested in a district judge to decide
whether to impose sanctions and what form they should take.");
Jensen v. Frank, 912 F.2d 517, 524 (1st Cir. 1990) (similar);
Damiani v. Rhode Island Hosp., 704 F.2d 12, 15 (1st Cir. 1983)
(similar). An appellate court must step softly in such
precincts, taking pains not simply to substitute its judgment for
that of the district court and intervening only if it is
persuaded that the district court overspilled fairly wide
discretionary bounds. See National Hockey League v. Metropolitan
Hockey Club, Inc., 427 U.S. 639, 642 (1976); Velazquez-Rivera v.
Sea-Land Serv., Inc., 920 F.2d 1072, 1075 (1st Cir. 1990);
Fashion House, Inc. v. K Mart Corp., 892 F.2d 1076, 1081-82 (1st
Cir. 1989). All in all, a party protesting an order in respect
to sanctions bears a formidable burden in attempting to convince
the court of appeals that the lower court erred.
Deference, however, is not to be confused with
automatic acquiescence. We will not rubber stamp sanction
decisions entered in the district court. Media Duplication, 928
F.2d at 1238. Rather, in examining the imposition of sanctions
for possible abuses of discretion, we focus our review
particularly on whether a "material factor deserving significant
5
weight [was] ignored," whether "an improper factor [was] relied
upon," or whether "when all proper and no improper factors [were]
assessed . . . the court [made] a serious mistake in weighing
them." Independent Oil & Chem. Workers, Inc. v. Proctor & Gamble
Mfg. Co., 864 F.2d 927, 929 (1st Cir. 1988) (collecting cases).
III.
Analysis
A.
Procedural Default
As a threshold matter, the government asserts that
Tenaglia waived any reliance on Civil Rule 37 by failing to bring
the rule to the attention of the district court. After carefully
examining the record, we conclude that, on balance, Tenaglia
presented the issue in a manner barely sufficient to put the
theory in issue and thereby to avoid a procedural default.
To be sure, the question of waiver is borderline.
Tenaglia did not confront the district court with chapter and
verse anent the Rule 37 argument. Nonetheless, he did challenge
the court's use of its discretion to dismiss in the first
instance without prior adjudication of his generic objections to
the wave of interrogatories; and on several occasions, he asked
the court to consider the objections, meanwhile enlarging the
time for responding to the interrogatories, before dismissing the
claim. Tenaglia buttressed this point by citing cases in which
orders compelling discovery preceded dismissal. See, e.g.,
United States v. One 1971 Corvette Stingray, Etc., No. 89-5398,
6
1989 U.S. Dist. LEXIS 15079 (E.D. Pa. Dec. 14, 1989).
In fine, while Tenaglia's proffer was by no means a
paradigm of lucidity, neither did it require the district court
to sift an ocean of prose for a seashell's worth of reasoning.
In some cases, perhaps, these meager efforts would not serve.
But, in assessing the adequacy of Tenaglia's proffer, we are
keenly aware that "dismissal with prejudice is a harsh sanction
which runs counter to our strong policy favoring the disposition
of cases on the merits." Figueroa Ruiz v. Alegria, 896 F.2d 645,
647 (1st Cir. 1990) (internal quotation marks and citation
omitted); accord Marx v. Kelly, Hart & Hallman, P.C., 929 F.2d 8,
10 (1st Cir. 1991); Velazquez-Rivera, 920 F.2d at 1075. We are
mindful, too, that forfeiture is a harsh medium and that the
disposition-on-the-merits policy is, therefore, particularly
potent here. See United States v. 384-390 West Broadway, 964
F.2d 1244, 1248 (1st Cir. 1992) (recognizing that "forfeitures
are strong medicine, disfavored in our jurisprudence"); United
States v. $38,000 in U.S. Currency, 816 F.2d 1538, 1547 (11th
Cir. 1987) (collecting cases); cf. United States v. 1 Street A-1,
885 F.2d 994, 1001 (1st Cir. 1989) (acknowledging, in a
forfeiture context, that "to the greatest extent possible
controversies are [to be] decided on the merits" and therefore
excusing potential procedural default). And, finally, given the
surge in attempted forfeitures, the importance of the issue for
future cases is itself a factor cutting sharply in favor of
resolving it here and now. Cf. United States v. La Guardia, 902

7
F.2d 1010, 1013 (1st Cir. 1990) (excusing procedural default and
considering purely legal issue not raised below where the issue
was significant and likely to recur, such that addressing it
would advance the administration of justice); United States v.
Krynicki, 689 F.2d 289, 292 (1st Cir. 1982) (similar).
Considering the nature and circumstances of this case, we
conclude that the argument regarding the necessity of an
intervening court order before dismissal for failure to make
discovery was sufficiently raised below.
B.
The Interplay Between the Two Sets of Rules
In 1966, Congress abolished the former Rules of
Practice in Admiralty and Maritime Cases and replaced them with
the Supplemental Rules for Certain Admiralty and Maritime Claims.
The scope of the new rules belied their title because they
extended beyond maritime actions to actions in rem, see Adm. R.
A(2), C, and, in particular, to forfeiture actions. See, e.g.,
21 U.S.C. 881(b). In minting the Admiralty Rules, however,
Congress did not completely remove in rem proceedings from the
purview of the Civil Rules.3 Rather, Congress decreed that:
The general Rules of Civil Procedure for
the United States District Courts are also
applicable to [in rem] proceedings except to
the extent that they are inconsistent with
3The Court made it very clear that the former admiralty
rules were not meant to be comprehensive codes regulating every
aspect and detail of federal court practice in cases to which
they applied. See Miner v. Atlass, 363 U.S. 641, 648 (1960). We
are confident that the new admiralty rules share this
characteristic.
8
these Supplemental Rules.
Adm. R. A.
Pursuant to this direction, we have consistently looked
to the Civil Rules to fill gaps in the Admiralty Rules. See,
e.g., 384-390 West Broadway, 964 F.2d at 1247 n.4 (explaining
that "[r]esort . . . may be had to the Federal Rules of Civil
Procedure for interstitial matters or where the Admiralty Rules
are silent . . ."); United States v. 116 Emerson St., 942 F.2d
74, 77 (1st Cir. 1991) (similar); In re Northern Transatlantic
Carriers Corp., 423 F.2d 139, 140 (1st Cir. 1970) (holding that
"[a]ll civil rules, except where impertinent," apply in admiralty
cases); see also 1 Street A-1, 885 F.2d at 998 & n.13 (applying
Fed. R. Civ. P. 4 in forfeiture suit); United States v. $149,345
U.S. Currency, 747 F.2d 1278, 1280, 1281 (9th Cir. 1984)
(applying Fed. R. Civ. P. 37 and 60 in forfeiture suit); cf.
$38,000 in U.S. Currency, 816 F.2d at 1547 n.20 (noting general
applicability of Civil Rules to forfeiture actions but rejecting
specific application of Fed. R. Civ. P. 12(f) as inconsistent
with Adm. R. E(2)); United States v. $39,000 in Canadian
Currency, 801 F.2d 1210, 1216 (10th Cir. 1986) (similar).
Admiralty Rule C provides an abecedarian roadmap for
the travel of forfeiture proceedings. An action is initiated by
the filing of a sworn complaint. Adm. R. C(2). Persons claiming
an interest in the targeted property have ten days within which
to file a claim and twenty days thereafter within which to file a
sworn answer, together with "answers to any interrogatories
9
served with the complaint." Adm. R. C(6). However, the
Admiralty Rules are completely bereft of guidance concerning what
measures may be appropriate when parties fail to serve answers to
interrogatories in a full and timely fashion. This deficiency is
part of a larger pattern; read in their entirety, the Admiralty
Rules make no provision whatever for discovery sanctions.
In light of the Admiralty Rules' opacity on this
subject, Adm. R. A directs our attention to the Civil Rules and,
in particular, to Fed. R. Civ. P. 37.4 The government seemingly
concedes that Civil Rule 37 requires that a court order
specifically compelling answers to interrogatories be entered,
and then transgressed, before dismissal can ensue. The rule
does, indeed, operate in that manner.5 See R.W. Int'l Corp. v.
4Fed. R. Civ. P. 37 is entitled "Failure to Make or
Cooperate in Discovery: Sanctions." It is the rule to which
federal courts must resort in addressing a litigant's
noncompliance with Fed. R. Civ. P. 33 (entitled "Interrogatories
to Parties").
5Of particular pertinence here is the rule's admonition
that:
If a party . . . fails to obey an order to
provide or permit discovery, including an
order made under subdivision (a) of this rule
. . . the court in which the action is
pending may make such orders in regard to the
failure as are just, and among others the
following:
. . . .
(C) An order striking out pleadings or
parts thereof, or staying further proceedings
until the order is obeyed, or dismissing the
action or proceeding or any part thereof, or
rendering a judgment by default against the
disobedient party . . . .
10
Welch Foods, Inc., 937 F.2d 11, 15 (1st Cir. 1991) (collecting
cases).
The next question is whether, as the government
asserts, the quoted portion of Civil Rule 37 is antagonistic to
some provision of the Admiralty Rules. The government
hypothesizes such a clash between Civil Rule 37 and Adm. R. C(6)
by reading the latter rule as allowing dismissal in the first
instance if interrogatories are served thereunder and then
ignored. But, the government offers no case law supportive of
this curious interpretation. It relies entirely on forfeiture
cases in which courts have from time to time struck untimely
claims to targeted property. See, e.g., United States v. One
Dairy Farm, 918 F.2d 310, 311 (1st Cir. 1990). Such cases are
inapposite. For one thing, the Civil Rules, like the Admiralty
Rules, have uniformly been interpreted as empowering courts to
strike late-filed pleadings. See, e.g., Fantasy, Inc. v.
Fogerty, 664 F. Supp. 1345, 1347-48 (N.D. Cal. 1987). The same
does not hold true for delayed discovery. The Admiralty Rules,
as we have said, are silent on this topic, and the Civil Rules
contain specific provisions for a progression of remedies if a
court encounters footdragging in the answering of
interrogatories. For another thing, the reason for strictly
enforcing timeliness requirements anent the filing of claims is
"to force claimants to come forward as soon as possible after
forfeiture proceedings have begun." 116 Emerson St., 942 F.2d at
Fed. R. Civ. P. 37(b)(2).
11
77 (quoting 1 Street A-1, 885 F.2d at 1001). Once all the
parties are before the court, different considerations obtain.
At that juncture, the measured procedure crafted by Fed. R. Civ.
P. 37, which balances the interest in full and prompt discovery
against the presumption that disputes should be resolved on the
merits, seems a far more suitable instrument.
To sum up, the Admiralty Rules provide for discovery
via interrogatories but they provide no internalized mechanism
for handling a party's failure to answer interrogatories fully
and/or punctually. Given the imperative of Adm. R. A and the
great similarity in language between Adm. R. C(6) and Fed. R.
Civ. P. 33,6 it seems natural to look to Civil Rule 37 to fill
the hole in the Admiralty Rules' interrogatory provisions. Civil
Rule 37 provides what the Admiralty Rules do not: a mechanism
for addressing failures to cooperate in discovery. Discerning no
hint of inconsistency, we hold that the use of discovery
sanctions in forfeiture actions is properly governed by the
pertinent provisions of the Federal Rules of Civil Procedure.
Accordingly, the imposition of sanctions for a claimant's failure
or refusal to answer interrogatories in a forfeiture case must be
judged under the jurisprudence of Civil Rule 37.
C.
The Propriety of the District Court's Order
We turn last to the question of whether the district
6Except for the fact that Adm. R. C(6) allows the government
first crack at propounding interrogatories, it tracks the
prescriptive language of Fed. R. Civ. P. 33.
12
court's order in this case was within the bounds of its
discretion. In this regard, the government hangs the case for
affirmance on two hooks. First, the government tells us that the
order met the requirements of Fed. R. Civ. P. 37. Next, the
government argues in the alternative that the district court had
inherent power to order a dismissal here. We address these
points in order.
1. The Rule 37 Framework. Civil Rule 37 erects a two-
1. The Rule 37 Framework.
tiered framework for addressing a litigant's failure to cooperate
in discovery. First, the party propounding interrogatories must
seek a court order compelling discovery. It is only if the
offending party refuses to comply with such an order that the
court may choose a sanction as stern as dismissing the action or
striking the offender's pleadings. See Fed. R. Civ. P. 37(b)(2),
(d). Thus, Civil Rule 37 does not permit the district court to
jump directly to the most dire sanctions without essaying an
intermediate first step. To the contrary, Rule 37's "language
clearly requires two things as conditions precedent to engaging
the gears of the rule's sanction machinery: a court order must
be in effect, and then must be violated, before the enumerated
sanctions can be imposed." R.W. Int'l, 937 F.2d at 15(collecting cases).7 This case aptly illustrates the value of
the two-stage process: a motion to compel would have given the
7We think this holding is altogether consistent with the
Ninth Circuit's position in $149,345 U.S. Currency, 747 F.2d at
1280 although there, a fresh order to compel was unnecessary
because of the res judicata effect of an order to compel entered
in an earlier case. See id.13
court an opportunity to address Tenaglia's Fifth Amendment and
relevancy concerns, to enter an order fixing a firm date for
compliance, and, if necessary, to punish Tenaglia's dilatory
conduct by awarding counsel fees and costs. See Fed. R. Civ. P.
37(a)(4). If Tenaglia then persisted in giving a cold shoulder
to the compliance date, the court would be in a position to
exercise its discretion in choosing an appropriate sanction from
those provided in Rule 37(b), including dismissal.
Here, neither of the precedent conditions was met.
Instead, the government tried a shortcut, moving to strike
Tenaglia's claim for failure to comply with Adm. R. C(6) without
first seeking to compel responses to the interrogatories and
without making the slightest effort to observe Fed. R. Civ. P.
37's procedural strictures. Seven months after the government
filed its motion, the district court adopted the government's
reasoning in large part, concluding that Tenaglia "lack[ed] the
standing to contest the forfeiture at issue" because he had
failed to answer the interrogatories. Based on that conclusion,
the court struck the claim without first entering a discovery
order and subsequently witnessing its breach, as Rule 37
requires. In failing to account for this factor, the district
court overstepped its discretion when it struck Tenaglia's claim
in the first instance.8 See Aggarwal v. Ponce Sch. of Medicine,
8In point of fact, because the government never moved to
compel Tenaglia's compliance, the court had no discretion under
Rule 37 to strike Tenaglia's claim for failure to make due
discovery.
14
745 F.2d 723, 727 (1st Cir. 1984) ("The cask which encases a
judge's discretion, though commodious, can be shattered when . .
. the trial court misconceived or misapplied the law . . . .").
2. Inherent Powers. In an effort to dodge the
2. Inherent Powers.
operation of Civil Rule 37, the government argues that, in any
event, no reference to the Civil Rules is exigible because the
courts can use inherent powers to deal appropriately with
procedural problems on a case-by-case basis. Although it is true
that a district court possesses the inherent power to dismiss an
action where there has been an egregious abuse of process, see,
e.g., Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118-19 (1st Cir.
1989) (holding that the district court possessed inherent power
to dismiss the complaint after discovery of plaintiff's ongoing
fraud on the court); cf. Chambers v. NASCO, Inc., 111 S. Ct.
2123, 2133 (1991) ("outright dismissal of a lawsuit . . . is a
particularly severe sanction, yet is within the court's
discretion") (citation omitted), we see no evidence here of such
straitened circumstances.
Furthermore, there are limits to a court's inherent
powers, particularly in instances where the Civil Rules are on
all fours. When, as in this case, the Civil Rules limit the
nature of the sanction that can be imposed, a court may not use
its inherent powers to circumvent the Rules' specific provisions.
See Bank of Nova Scotia v. United States, 487 U.S. 250, 254
(1988) (holding that a court cannot rely on supervisory power to
avoid the clear mandate of a procedural rule); cf. Chambers, 111
15
S. Ct. at 2136 (allowing use of inherent powers where Civil Rules
did not limit the nature of the sanction which could be imposed).
Consequently, even where district courts have invoked their
inherent powers to dismiss an action, the dismissal has typically
followed the violation of a preexisting court order. See, e.g.,
Figueroa Ruiz, 896 F.2d at 648.
We note, moreover, that the court below expressly
relied on Adm. R. C(6) and did not purport to invoke or even
mention its inherent powers. Under these circumstances, we are
disinclined to rummage through the record searching for a likely
unusable needle in a haystack never explored by the trial court.
Doing so would be injudicious and, to our way of thinking, would
needlessly threaten the delicate balance struck by Civil Rule 37.
See Bank of Nova Scotia, 487 U.S. at 255 ("The balance struck by
the Rule . . . may not casually be overlooked 'because a court
has elected to analyze the question under the supervisory
power.'") (quoting United States v. Payner, 447 U.S. 727, 736
(1980)); see also R.W. Int'l, 937 F.2d at 20 (refusing "to debate
the entirely hypothetical question of whether the action might
lawfully have been dismissed in the exercise of the court's
inherent powers").
IV.
Conclusion
We need go no further.9 Because the Admiralty Rules
9Tenaglia requests that we direct the district court to
issue a protective order enabling him simultaneously to answer
the interrogatories and protect his Fifth Amendment rights. We
16
contain no inconsistent provisions, Civil Rule 37 provides the
appropriate mechanism to which parties who find their discovery
stalled in forfeiture cases must resort. And, because the
district court failed to abide by the analytic strictures of Fed.
R. Civ. P. 37 when exercising its discretion here, its order and
judgment cannot stand.
The order striking appellant's claim is reversed, the
judgment below is vacated, the claim is reinstated, and the case
is remanded to the district court for further proceedings. No
costs.
believe that this is a matter to be considered ab initio in the
trial court and Tenaglia is, of course, free to raise it on
remand.
17