Schleper v. Ford Motor Co. , 585 F.2d 1367 ( 1978 )

STEPHENSON, Circuit Judge.

Seth R. Phillips, an attorney, appeals from an order of the district court,¹ finding him in contempt of court as a result of the use of profane language in answer to an interrogatory. Appellant contends that, when read in proper context together with other interrogatories, the objectionable language is a proper, substantive response given in good faith, and is not directed at either the court or the opposing counsel. In addition, appellant argues² that the alleged contumacious conduct occurred outside the presence of the court, so that pursuant to Fed.R.Crim.P. 42(b), appellant must be provided with notice and an opportunity to be heard before a finding of contempt can be made. We reverse and remand.

On July 15,1977, appellant Phillips filed a complaint in Schleper v. Ford Motor Co. The complaint arose from an arbitration proceeding. The central contention of the plaintiff, Gary J. Schleper, was that he was not adequately represented by his union representative at the arbitration hearing. An essential element of Schlepér’s complaint was that he had been subjected to continuing dehumanizing treatment by both defendant Ford and codefendant United Auto Workers Local 879. A significant portion of this claim was that obscene, abusive language was directed toward Schleper as ongoing harassment and provocation.

On July 27,1977, Ford answered the complaint, and along with their answer submitted 19 interrogatories, each with sub-parts, for Schleper to answer. On September 9, 1977, attorney Phillips mailed an unsigned and incomplete set of answers to Ford, with a brief explanation that the delay was due to the time demands of Phillips’ schedule in court. Phillips promised that a complete and properly signed set of answers would be forthcoming. This unsigned set of answers contained the response to Interrogatory 6(b) which is central to this appeal.

On November 4, 1977, Ford wrote Phillips, who had still not supplied completed, signed answers to the interrogatories, and extended the time to forward signed answers until November 11, 1977. Ford threatened to seek an order to compel answers if this deadline was not met. On November 9, 1977, attorney Phillips forwarded completed and signed answers. The answer to Interrogatory 6(b) was unchanged from its form in the incomplete set mailed by Phillips on September 9, 1977.

Interrogatory 6, consisting of a general question and four subparts relating to events at the arbitration proceeding, appears as follows:

INTERROGATORY NO. 6. Set forth in detail all facts upon which you rely in alleging that your Union representative did not cooperate with you in any manner in presentation of the arbitration case alleged in paragraph 12 of your Complaint.

a. Specify each witness that was not 'called who you requested your Union representative to call.

b. With regard to each such witness, set forth in detail the testimony which you believed said witness would have offered to the arbitrator had he testified at the arbitration hearing.

c. With regard to each such witness, state the reason given to you by your Union representative for not calling the witness.

d. State the reason given you by the Union representative for his refusal to submit the written testimony you had prepared to the arbitrator.

The answer to Interrogatory No. 6 dated November 9, 1977, and signed by both Schleper and Phillips, states:

ANSWER. Witnesses were called for their testimony regarding the discharge grievance. Witnesses that I requested for the prior seven grievances were not called.

a. Tom Laney, Richard Scott, Mike Hadfield, Carlton McCoy, Wayne Plem-mel.

b. Fuck you.

c. I told him that my ass was on the line here and-1 wanted these witnesses called and he said I should have thought of my ass back in 1975. He added that he was my exclusive representative and that he’d decide who to call or not to call.

d. No reason was given. The “representative” simply refused to submit them.

It was at a hearing on motions by each defendant for summary judgment, held on November 18, 1977, that Phillips suggests he first learned that counsel for Ford had regarded the answer to Interrogatory 6(b) as a personal insult. Following this hearing, attorney Phillips claims he verified with Schleper that the answer to 6(b) was an answer relating to the language of the testimony that Schleper believed the witnesses not called at the arbitration hearing would have offered.

On November 21, 1977, Phillips received notice of a motion by Ford to dismiss pursuant to Fed.R.Civ.P. 11 and 37 based upon plaintiff’s continuing and disrespectful failure to provide adequate interrogatory answers. Hearing on this motion was set for December 16, 1977.

Orders denying the two defendants’ original motions for summary judgment were issued November 28, 1977. At about this time, Phillips claims he conferred again with Schleper concerning the answer to Interrogatory 6(b). At this meeting, Schleper revealed that he had allowed a friend who was a former co-worker at Ford to draft the answers to the interrogatories while Schleper was present. Following this new information, Phillips and Schleper expanded the answer to Interrogatory 6(b) to read: “The persons would have testified that the foreman said, ‘Fuck you.’ ” Phillips mailed this amended answer to both defendants and to the court, along with a letter of apology for any affront they may have found in the form of the answer.

Phillips later reviewed the answers to all interrogatories with Schleper. This review resulted in several changes and amplifications which were included in a set of amended answers to interrogatories which were signed and mailed to both defendants on December 6,1977. The amended answer to Interrogatory 6(b) stated:

b. The persons would have testified that the foreman said, “Fuck you.” And on the Eighth grievance the committeeman said, “Fuck you,” when I asked to make my health and safety grievance. With respect to the misrepresentation by Lew Caulford, the people present were George Schmitt, Bob Killeen and Eugene Newman.

On December 16, 1977, the hearing was held on Ford’s motion to dismiss pursuant to Fed.R.Civ.P. 11 and 37. At that hearing counsel for Ford admitted that a Rule 37 motion to dismiss should follow the failure of a party to respond adequately to an order of the court to compel discovery, and that such an order had not been sought by Ford. Ford suggested, however, that in light of Phillips’ recalcitrance and repeated use of the two-word expletive in answer to Interrogatory 6(b), dismissal might be appropriate even without Phillips’ refusal to comply with a court order. Ford further suggested at this hearing that the court consider alternative sanctions available under Rule 37. The court did not direct any question regarding contempt at attorney Phillips at any time during this hearing, nor did the court alert Phillips to the possibility he might be held in contempt until its finding of contempt at the close of the hearing. Throughout the hearing, Phillips had addressed himself to the issue of why the complaint should not be dismissed.

On December 28, 1977, the court issued its formal order in which it found that Schleper’s answers to Ford’s interrogatories, and particularly to Interrogatory 6, were contemptuous. It further found that Schleper and Phillips were in willful contempt of court as a result of their actions in filing the answers to the interrogatories. As a fine for contempt of court, the court ordered Phillips to pay the clerk of court the sum of $400, and Schleper to pay the clerk of court the sum of $100. Further, the court found that Ford had incurred additional attorney fees as a result of the actions of Phillips and Schleper, and ordered Schleper to pay Ford the sum of $300 for attorney fees. The court stated that if the amounts specified to be paid by Schlep-er were not paid before January 31, 1978, the court would enter an order dismissing the action against Ford with prejudice. This appeal followed.

Fed.R.Civ.P. 37(b)(2)(D) authorizes imposition of the sanction of contempt of court in certain circumstances. Rule 37(a)(2) provides that if a party fails to answer an interrogatory, the discovering party may move for an order compelling an answer. Rule 37(b)(2) provides that if a party fails to obey an order under Rule 37(a)(2) to provide or permit discovery the court may then impose sanctions including contempt of court.

In the present ease there was at no time an order entered by the district court requiring the plaintiff to answer the interrogatory. Two recent Eighth Circuit opinions clearly hold that the sanctions of Rule 37(b) are not applicable until there has been an order by the court compelling discovery. Fisher v. Marubeni Cotton Corp., 526 F.2d 1338, 1341 (8th Cir. 1975); Fox v. Studebaker-Worthington, Inc., 516 F.2d 989, 994-95 (8th Cir. 1975). “When the discovery procedure is initially set in motion by the parties themselves without a court order, the party seeking discovery must first obtain an order under Rule 37(a) requiring the recalcitrant party or witness to make the discovery sought; it is only a violation of this order that is punishable under Rule 37(b). 8 Wright & Miller, [Federal Practice and Procedure, §§ 2282, 2289 (1970)]; accord, Wembley, Inc. v. Diplomat Tie Co., 216 F.Supp. 565 (D.Md.1963).” Fisher v. Marubeni Cotton Corp., supra, 526 F.2d at 1341. Therefore, the court lacked authority to impose contempt under Rule 37.³

We further agree with Phillips’ contention that a finding of contempt under 18 U.S.C. § 401 was not proper. Section 401 provides in pertinent part:

A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as—

(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice[.]

Fed.R.Crim.P. 42 sets out the procedural rules which govern a criminal contempt charge:

(a) Summary Disposition. A criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of record.

(b) Disposition upon Notice and Hearing. A criminal contempt except as provided in subdivision (a) of this rule shall be prosecuted on notice. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the criminal contempt charged and describe it as such. The notice shall be given orally by the judge in open court in the presence of the defendant or, on application of the United States attorney or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest. The defendant is entitled to a trial by jury in any case in which an act of Congress so provides. He is entitled to admission to bail as provided in these rules. If the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the defendant’s consent. Upon a verdict or finding of guilt the court shall enter an order fixing the punishment.

Rule 42 provides the only basis upon which a charge of criminal contempt may be prosecuted. In re Weeks, 570 F.2d 244, 246 (8th Cir. 1978).

Summary contempt proceedings are permissible only when the contumacious behavior is committed in the presence of the judge and known to him personally, requiring immediate corrective action to restore the authority and dignity of the court. United States v. Wilson, 421 U.S. 309, 315, 95 S.Ct. 1802, 44 L.Ed.2d 186 (1975); Harris v. United States, 382 U.S. 162, 164, 86 S.Ct. 352, 15 L.Ed.2d 240 (1965); In re Weeks, supra, 570 F.2d at 246; United States v. Peterson, 456 F.2d 1135, 1139 (10th Cir. 1972). In the case at bar, the completion of the written interrogatories that were found to be contumacious was behavior falling outside Rule 42(a). See In re Weeks, supra; Kelley v. United States, 199 F.2d 265 (4th Cir. 1952).

For conduct beyond the scope of Rule 42(a), Rule 42(b) requires other criminal contempts to be prosecuted “on notice.” The notice requirements include a statement of the facts constituting the criminal contempt together with a reasonable time to prepare a defense. Harris v. United States, supra, 382 U.S. at 166-67, 86 S.Ct. 352; United States v. United Mine Workers of America, 330 U.S. 258, 296-301, 67 S.Ct. 677, 91 L.Ed. 884 (1947); Cooke v. United States, 267 U.S. 517, 535-36, 45 S.Ct. 390, 69 L.Ed. 767 (1925); In re Weeks, supra, 570 F.2d at 246 — 47; United States v. Peterson, supra, 456 F.2d at 1138-39.

We note that when scandalous, abusive or improper language or material is included in the pleadings, common practice is to strike the objectionable language, frequently with leave to amend. Skolnick v. Hallett, 350 F.2d 861 (7th Cir. 1965), cert. denied, 382 U.S. 996, 86 S.Ct. 580, 15 L.Ed.2d 482 (1966); Ex parte Tyler, 70 F.R.D. 456 (E.D.Mo.1976); Martin v. Hunt, 28 F.R.D. 35 (D.Mass.1961); Mottaghi-Iravani v. International Commodities Corp., 20 F.R.D. 37 (S.D.N.Y.1956). Certainly the unexplained and unqualified use of obscene language in answer to Interrogatory 6(b) in the present case cannot be condoned. However, the contempt power is a drastic remedy, and it should be invoked only when the right to its use is clear. United States v. Peterson, supra, 456 F.2d at 1139. The proceedings here required compliance with the mandates of Fed.R.Crim.P. 42(b). The notice Phillips received pertained only to a hearing on December 16, 1977, on a motion for dismissal pursuant to Fed.R.Civ.P. 37, not to a charge of criminal contempt against him. Accordingly, Phillips limited his remarks at the hearing to the issue of dismissal. In short, because of inadequate notice and no meaningful opportunity to be heard, Phillips was denied fundamental procedural due process. See In re Weeks, supra, 570 F.2d at 247; United States v. Peterson, supra, 456 F.2d at 1139.

Although Phillips argues that the answer to Interrogatory 6(b) was not contumacious, in light of the inadequacy of the notice we find it unnecessary to review the facts surrounding Phillips’ conduct. With adequate notice, attorney Phillips will have ample opportunity to attempt to explain his actions to the district court.⁴

Reversed and remanded for proceedings consistent with this opinion. Each party will bear its own costs.

1 . The Honorable Donald D. Alsop, United States District Judge for the District of Minnesota.

2 . Ford Motor Company did not file a brief or present oral argument.

3 . Under Fed.R.Civ.P. 37(d) certain sanctions may be imposed for failure to answer an interrogatory without first obtaining a court order. However, contempt of court is not one of the sanctions available under Rule 37(d).

4 . The dissent at page 18 refers to notice to appellant of a motion by the Union to disqualify appellant for unprofessional conduct (R. Item No. 12). This notice states the Union will move “for an order under the Code of Professional Responsibility, as adopted by the Minnesota Supreme Court Disciplinary Rules 5-101 and 5-102, disqualifying Plaintiffs attorney, Seth R. Phillips, for acting as both attorney and witness.” R. Item 16 refers to “Plaintiffs continuing and disrespectful failure to provide adequate Interrogatory Answers.” R. Item 17 likewise refers to “Plaintiffs continuing and disrespectful failure to provide adequate interrogatory answers.”