Esposito v. Home Depot U.S.A., Inc. , 590 F.3d 72 ( 2009 )

United States Court of Appeals
For the First Circuit
No. 08-2115
ROBERT ESPOSITO,
Plaintiff, Appellant,
v.
HOME DEPOT U.S.A., INC., BLACK & DECKER INC.,
DEWALT INDUSTRIAL TOOL CO.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, U.S. District Judge]
Before
Lipez and Howard, Circuit Judges,
and Woodcock,* District Judge.
Thomas More Dickinson, with whom Law Office of Thomas M.
Dickinson was on brief, for appellant.
C. Russell Bengtson, with whom Carroll Kelly & Murphy was on
brief, for appellees.
December 30, 2009
*
Of the District of Maine, sitting by designation.
HOWARD, Circuit Judge. In this diversity action
involving a products liability claim, Robert Esposito challenges
the district court's decision to grant summary judgment to the
defendants, Dewalt Industries, Black & Decker, and Home Depot.
Esposito argues on appeal that the case was improperly removed to
federal court and that the district court erroneously precluded his
expert witness. We reject the argument based on improper removal,
but we agree that, in the circumstances of this case, the expert
witness should not have been precluded. Accordingly, we vacate the
district court's entry of summary judgment and remand for further
proceedings.
I. Facts
In March 2003, while he was operating a power saw
manufactured by Dewalt Industries ("Dewalt"), Robert Esposito's
left hand came into contact with the saw's unguarded blade. The
saw severed three of his fingers, none of which could be
reattached. In March 2006, Esposito filed a complaint in Rhode
Island state court against Dewalt, Black & Decker (the company that
packaged the saw), and Home Depot (the company that sold the saw).
Esposito claimed that the saw was defective because its blade guard
did not engage properly and that the defendants were jointly and
severally liable for his injury. Home Depot was served with the
complaint on March 17. The other defendants were served on March
21.
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On April 3, two of the defendants, Dewalt and Black &
Decker, filed a notice of removal in the United States District
Court for the District of Rhode Island. On April 13, the other
defendant, Home Depot, filed its answer in federal court.
On May 3, Esposito moved to remand the matter back to the
state court. In support of his motion, he claimed a defect in the
removal process in that Home Depot had not consented to removal
within the thirty-day period as required by statute. See 28 U.S.C.
§ 1446(b). That failure, Esposito claimed, breached the unanimity
requirement: that each defendant in a multi-defendant case consent
to removal within thirty days of receiving service. The defendants
opposed Esposito's motion.
The district court denied the motion, concluding that
Home Depot's answer, which had been filed in federal court within
the thirty day period, constituted consent to removal under the
circumstances. Esposito v. Home Depot U.S.A., Inc., 436 F. Supp.
2d 343, 347 (D.R.I. 2006).
In July 2006, the district court set pre-trial discovery
and disclosure deadlines, including a deadline for the written
disclosure of experts under Rule 26 of the Federal Rules of Civil
Procedure. These deadlines were pushed back twice: first at the
request of the defendants and second at the request of Esposito.
The second extension required the parties to wrap up fact discovery
by May 31, 2007; Esposito to disclose experts by June 21; and the
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defendants to disclose experts by July 14. Dispositive motions
were due by August 16.
Operating under this revised timetable, the parties and
their respective experts arranged to participate in a joint
examination of the saw. At this examination, which took place on
April 20, Steven Thomas inspected the saw on Esposito's behalf.
Thomas's curriculum vitae had been sent to the defendants prior to
this examination. When the time came to disclose Thomas as his
expert, however, Esposito failed to do so. Instead, on August 1,
he filed a motion requesting that the court further extend the
relevant deadlines by ninety days. The defendants opposed
Esposito's extension request and on August 3 they filed a summary
judgment motion premised on the plaintiff's lack of an expert.
The magistrate judge denied Esposito's request for a
further extension, and Esposito appealed this decision to the
district court. Expressing reluctance, the district court
nevertheless endorsed the magistrate judge's decision and denied
Esposito's motion for an extension. The court recognized that the
denial of the plaintiff's request for an extension amounted to a
dispositive ruling, noting that "Both of the parties acknowledge
that the decision to exclude [Esposito's] expert as a result of
missing the discovery deadlines will, without much doubt,
effectively dispose of the case." Nevertheless, the district court
concluded that the denial of the extension, which precluded
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Esposito's expert, was justified. In so concluding, the district
court noted that Esposito had failed to offer a legitimate reason
for missing the deadline. The court also expressed its concern
that lesser sanctions, such as the imposition of fines and costs,
might "send the message that noncompliance or inattention to
deadlines can be purchased for a price."
As predicted, the district court's ruling sounded the
death knell for Esposito's case. The magistrate judge recommended
that the district court grant the defendants' motion for summary
judgment and the district court agreed, entering judgment for the
defendants.1 This appeal followed.
II. Discussion
We first examine the removal issue, turning then to the
sanction question.
A. Removal
Under the removal statute, a defendant in a state court
action may remove the action to federal court so long as the
plaintiff could have originally filed the action in federal court.
See 28 U.S.C. § 1441 (permitting removal of cases where the federal
court would have had "original jurisdiction"). Where the action
involves multiple defendants, however, the right of removal is
subject to the so-called "unanimity requirement." See Chicago,
1
In opposing the defendants' summary judgment motion,
Esposito provided and relied upon an engineering report from
Thomas. The magistrate judge struck this report.
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Rock Island & Pac. Ry. Co. v. Martin, 178 U.S. 245, 247-48 (1900).
This requirement is at issue in this case.
The unanimity requirement is derived from 28 U.S.C. §
1446, which sets forth the procedure for removing a state action to
federal court. Loftis v. UPS, 342 F.3d 509, 516 (6th Cir. 2003).
In a case where a plaintiff has sued multiple defendants in state
court, an "all for one and one for all" rule applies with respect
to removal. See Chicago, Rock Island & Pac. Ry. Co., 178 U.S. at
247-48. That is, subject to a few exceptions not applicable here,
all defendants must consent to remove the case for removal to be
effected. Id.; see also 11C Charles Alan Wright, Arthur R. Miller
& Edward H. Cooper, Federal Practice and Procedure § 3731 (3d. ed.
1998) ("Ordinarily, all of the defendants in the state court action
must consent to the removal . . . .").
The requirement of unanimity serves the interests of
plaintiffs, defendants and the judiciary. Plaintiffs are
advantaged, because, were the right to removal an independent
rather than joint right, defendants could split the litigation,
forcing a plaintiff to pursue its case in two separate forums. See
Sansone v. Morton Mach. Works, Inc., 188 F. Supp. 2d 182, 184
(D.R.I. 2002) (citing Getty Oil Corp., Div. of Texaco, Inc. v. Ins.
Co. of N. Am., 841 F.2d 1254, 1262 n.11 (5th Cir. 1988)).
Defendants also stand to benefit from the requirement, as it
precludes one defendant from imposing his choice of forum on a co-
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defendant. Id. (citation omitted). And the unanimity requirement
prevents the needless duplication of litigation, thereby preserving
court resources and eliminating the unattractive prospect of
inconsistent state and federal adjudications. Spillers v. Tillman,
959 F. Supp. 364, 369 (S.D. Miss. 1997).
The defect in the removal process resulting from a
failure of unanimity is not considered to be a jurisdictional
defect, and unless a party moves to remand based on this defect,
the defect is waived and the action may proceed in federal court.
See Loftis, 342 F.3d at 516-17; see also 11C Wright, Miller &
Cooper, Federal Practice and Procedure § 3739 ("After the
expiration of the thirty-day period following the filing of the
removal notice, the right to object to nonjurisdictional defects in
the removal process is considered waived.").
Here, Esposito timely objected to the perceived failure
of the defendants to comply with the unanimity requirement. Before
the district court, as he does now, Esposito argued that Home Depot
failed to consent to removal within the statutorily prescribed
thirty-day period. The district court rejected this argument. As
noted above, it concluded that Home Depot's answer in federal
court, filed within the applicable thirty day period, constituted
consent to removal under the circumstances of the case. Our review
of this conclusion is de novo. Loftis, 434 F.3d at 514.
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Although the unanimity requirement itself is well-
settled, the various ways that it may be satisfied are less so. We
have not spoken directly to the question, but a number of
guideposts do exist.
The removal statute itself speaks generally to the manner
of removal. In relevant part, section (a) provides that:
[A] defendant or defendants desiring to remove
any civil action . . . from a State court
shall file in the [appropriate] district court
of the United States a notice of removal
signed pursuant to Rule 11 of the Federal
Rules of Civil Procedure and containing a
short and plain statement of the grounds for
removal, together with a copy of all process,
pleadings, and orders served upon such
defendant or defendants in such action.
28 U.S.C. § 1446(a).
Consistent with this statute, a defendant may express its
desire to remove by signing the notice of removal filed by co-
defendants. But, the consensus among courts is that conduct less
explicit than joining the notice will suffice. See Pritchett v.
Cottrell, Inc., 512 F.3d 1057, 1062 (8th Cir. 2008) ("[E]ach
defendant need not necessarily sign the notice of removal.")
(citation omitted); Getty Oil Corp., Div. of Texaco, Inc., 841 F.2d
at 1262 n.11 ("This does not mean that each defendant must sign the
original petition for removal"); see also Sansone, 188 F. Supp. 2d
at 184; Tate v. Mercedes-Benz USA, Inc., 151 F. Supp. 2d 222, 224
(N.D.N.Y. 2001).
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Although a few courts have gone so far as to say that a
defendant may orally consent to removal before the district court,
Colin v. Schmidt, 528 F. Supp. 355, 358-59 (D.R.I. 1981), Clyde v.
Nat'l Data Corp., 609 F. Supp. 216, 218 (N.D. Ga. 1985), courts
typically require some type of writing that evinces consent,
Loftis, 342 F.3d at 517 ("[A]ll defendants in the action must join
in the removal petition or file their consent to removal in writing
within thirty days . . . ." (emphasis added)); see also Pritchett,
512 F.3d at 1062; Gillis v. Louisiana, 294 F.3d 755, 759 (5th Cir.
2002); Roe v. O'Donohue, 38 F.3d 298, 301 (7th Cir. 1994); Tate,
151 F. Supp. 2d at 224.
What type of writing will be satisfactory engenders yet
another divergence of opinion. Some courts have held that an
answer by a defendant that is silent on removal may nevertheless
establish consent, while other courts have reached the opposite
conclusion. Compare Hernandez v. Six Flags Magic Mountain, Inc.,
688 F. Supp. 560, 562 (C.D. Cal. 1988) (holding that an answer
silent on removal can establish consent), and Glover v. W.R. Grace
& Co., Inc., 773 F. Supp. 964, 965 (E.D. Tex. 1991) (same), with
Local Union No. 172 v. P.J. Dick, Inc., 253 F. Supp. 2d 1022, 1025
(S.D. Ohio 2003) (holding that an answer filed that fails to
expressly consent to removal does not satisfy the unanimity
requirement), and Unicom Sys., Inc. v. Nat'l Louis Univ., 262 F.
Supp. 2d 638, 643 & n.6 (E.D. Va. 2003) (same). At least one court
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has held that a defendant's answer is insufficient to establish
consent to removal even where it explicitly acknowledges the
removal of the case to federal court. Prod. Stamping Corp. v. Md.
Cas. Co., 829 F. Supp. 1074, 1077 (E.D. Wis. 1993).
Although mindful of the principle that removal statutes
are to be narrowly construed, Shamrock Oil & Gas Corp. v. Sheets,
313 U.S. 100, 108-09 (1941), we nevertheless are not inclined to
establish a wooden rule, regardless of whether such a rule would
have the benefit of promoting clarity. And in this particular
case, even assuming that Home Depot's answer failed to satisfy the
unanimity requirement, resulting in a technical defect in the
removal process, the defect was subsequently cured when Home Depot
opposed Esposito's remand motion, thereby clearly communicating its
desire to be in federal court. See Harper v. AutoAlliance Int'l,
Inc., 392 F.3d 195, 202 (6th Cir. 2002) ("In addition, the fact
that [the defendant] opposed [the plaintiff's] motion to remand
cured any purported defect in the removal petition."). Because
this cure occurred prior to the entry of summary judgment, a remand
to the state court was not required. Cf. Caterpillar Inc. v.
Lewis, 519 U.S. 61, 76 (1996); see Parrino v. FHP, Inc., 146 F.3d
699, 703 (9th Cir. 1998) (citing Caterpillar, 519 U.S. at 77, for
the proposition that "a procedural defect existing at the time of
removal but cured prior to entry of judgment does not warrant
reversal and remand of the matter to state court").
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In a case such as this one, where the parties have
already invested valuable resources in pursuing this litigation in
federal court and where a remand to state court would not serve the
purposes of the unanimity requirement, reaching an opposite
conclusion would place form before function. Parrino, 146 F.3d at
703; Glover, 773 F. Supp. at 965; 11C Wright, Miller & Cooper,
Federal Practice and Procedure § 3739 ("[T]he preferable result
seems to be to continue to allow procedural defects in the removal
procedure be cured so the removed action can remain in federal
court. A contrary conclusion does not seem consistent with the
statutory character of the removal right and seems too
technical."). We refuse to do so, and thus uphold the denial of
the remand motion.
Of course, it is undoubtedly the better practice for a
defendant who wants to be in federal court to join the removal
notice explicitly, either by signing the notice itself or by filing
its consent. By failing to do so in this case, Home Depot ran the
risk that the district court might find a breach of the unanimity
requirement and remand this action to the state court, a decision
we would have been powerless to review. 28 U.S.C. § 1447(d) (a
district court's order remanding a case to the state court from
which it was removed is unreviewable on appeal or otherwise);
Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 133 (1995);
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Gonzalez-Garcia v. Williamson Dickie Mfg. Co., 99 F.3d 490, 491-92
(1st Cir. 1996).
B. Discovery Sanction
The Federal Rules of Civil Procedure provide the basic
framework for disclosure of experts. Rule 26 requires a party to
"disclose to other parties the identity of any person who may be
used at trial to present [expert] evidence." Fed. R. Civ. P.
26(a)(2)(A). Where a district court has established a disclosure
date, as in this case, a party must disclose the expert's identity
at this ordered time. Id. at (a)(2)(C). If a party's expert
disclosure is untimely, the party is not allowed to use that
witness or relevant expert information "to supply evidence on a
motion, at a hearing, or at a trial, unless the failure was
substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1).
Preclusion, however, "is not a strictly mechanical
exercise." Santiago-Diaz v. Laboratorio Clinico y de Referencia
del Este, 456 F.3d 272, 276 (1st Cir. 2006). And, in its
discretion, the district court may choose a less severe sanction.
Id.; see also LaPlace-Bayard v. Batlle, 295 F.3d 157, 162 (1st Cir.
2002) ("[D]istrict courts have broad discretion in meting out . .
. sanctions for Rule 26 violations.") (citation omitted).
Where a district court does opt in favor of preclusion,
we review that decision with reference to a host of factors,
including: (1) the history of the litigation; (2) the sanctioned
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party's need for the precluded evidence; (3) the sanctioned party's
justification (or lack of one) for its late disclosure; (4) the
opponent-party's ability to overcome the late disclosure's adverse
effects -- e.g., the surprise and prejudice associated with the
late disclosure; and (5) the late disclosure's impact on the
district court's docket. Macaulay v. Anas, 321 F.3d 45, 51 (1st
Cir. 2003); see also Santiago-Diaz, 456 F.3d at 276-77. When
reviewing the district court's sanction decision we must keep in
mind that district courts are generally in a better position to
determine the propriety of a particular sanction and, accordingly,
our review of the district court's ultimate choice is deferential.
Anas, 321 F.3d at 51 ("Because trial judges tend to have an
intimate knowledge of the variables that enter into the equation,
appellate review of sanctions orders is deferential.") (citations
omitted); Fashion House, Inc. v. K Mart Corp., 892 F.2d 1076, 1082
(1st Cir. 1989). Consistent with this deference, we review a
district court's decision to exclude expert evidence for an abuse
of discretion, understanding that the sanctioned party shoulders a
"heavy burden" when attempting to show that such an abuse has
occurred. See Santiago-Diaz, 456 F.3d at 275.2
2
We note that Rule 16 of the Federal Rules of Civil Procedure
gives district courts great discretion to issue sanctions where a
party fails to comply with case-management deadlines. Fed. R. Civ.
P. 16(f). It is not entirely clear whether the preclusion sanction
here was levied under Rule 16 or Rule 37, although Esposito cited
Rule 37 in his motion to permit expert testimony. In any event,
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Here, the district court was undoubtedly entitled to
impose some type of sanction on Esposito. Esposito failed to
comply with a court-imposed deadline that he himself had suggested,
and he could not offer a legitimate justification for his non-
compliance. And despite Esposito's argument that the appearance of
his expert at the inspection of the saw constituted an "informal
disclosure," the rules require formal disclosure for a reason:
without it, parties like the defendants in this case may be
hindered in their ability to prepare effectively for trial. See
Fed. R. Civ. P. 26 (a)(2)(B) (establishing that, "[u]nless
otherwise stipulated or ordered by the court," the formal
disclosure of an expert "must be accompanied by a written report"
that contains a host of information relevant to the expert's
testimony).
Nevertheless, whether the facts here justified the actual
sanction imposed -- the preclusion of the expert witness -- is a
closer question. We start by stating the obvious. The sanction
here had serious consequences. Esposito's need for the expert was
so great that the magistrate judge's decision to preclude the
whether we are reviewing a sanction imposed under Rule 16 or Rule
37, the considerations are generally the same, as is the deference
we afford the district court's choice of sanction. See Santiago-
Diaz, 456 F.3d at 277 (discussing cases dealing with sanctions
imposed under Rule 16 in examining the preclusion of evidence under
Rule 37). Accordingly, we would reach the same result here under
either rule.
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expert, although technically not a dismissal of Esposito's case,
effectively amounted to one. See Primus v. United States, 389 F.3d
231, 234 (1st Cir. 2004). The district court acknowledged as much
when it affirmed the magistrate judge's imposition of the sanction,
observing that "Both of the parties acknowledge that the decision
to exclude the Plaintiff's expert as a result of missing the
discovery deadlines will, without much doubt, effectively dispose
of the case."
Because all parties acknowledged that the sanction
carried the force of a dismissal, the justification for it must be
comparatively more robust. Young v. Gordon 330 F.3d 76, 81 (1st
Cir. 2003) ("To be sure, dismissal ordinarily should be employed as
a sanction only when a plaintiff's misconduct is extreme."); Tower
Ventures, Inc. v. City of Westfield, 296 F.3d 43, 46 (1st Cir.
2002) (recognizing that dismissal should not be granted
"casually"). After considering the other relevant factors
described above, we conclude that the circumstances here do not
justify such strong medicine.
In reaching this conclusion, we view the history of the
litigation as particularly enlightening. This is not a case of a
party repeatedly balking at court-imposed deadlines. Esposito
missed one deadline and requested an extension of the pre-trial and
trial dates after missing that deadline, albeit several weeks after
the deadline had passed. Compare Santiago-Diaz, 456 F.3d at 277 &
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n.4 (noting, in upholding the preclusion of a late-disclosed expert
witness, that the sanctioned party's "dereliction was both obvious
and repeated" and that "[t]he record makes manifest that the
plaintiff was guilty of several discovery violations besides those
related to her expert witness"). Nor is this a case where the
sanctioned party ignored pre-sanction warnings from the district
court. See Young, 330 F.3d at 79. Nor does this case involve,
from all appearances, an act of calculated gamesmanship on the part
of the sanctioned party. Neither the defendants nor the district
court in this case have characterized Esposito's failure to comply
with the disclosure deadline as strategic in nature.
To be sure, not every factor cuts in Esposito's favor.
First, he never offered a legitimate reason for his late
disclosure. See Macaulay, 321 F.3d at 52 (finding that the
district court's preclusion of the expert evidence was appropriate
where, among other things, "the appellant [had not] advanced any
real justification for [the] tardy emergence [of the expert's
report]"). Second, although the defendants here do not discuss in
any great detail how the late disclosure prejudiced them, they
obviously went through the pains of preparing a dispositive summary
judgment motion premised on Esposito's lack of an expert in an
expert-dependent case. See Gagnon v. Teledyne Princeton, Inc., 437
F.3d 188, 198 (1st Cir. 2006) ("[P]rejudice also exists in [the
defendants] having prepared a dispositive motion for summary
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judgment predicated on the preclusion of the expert testimony.");
Primus, 389 F.3d at 236. And finally, Esposito's failure to
disclose his expert by the scheduled date had a clear effect on the
district court's docket. In his motion to extend, Esposito sought
to push back the relevant pre-trial and trial dates by ninety days,
requiring the district court to further move dates that had already
been extended twice.
Even taking these considerations into account, however,
we still must face up to the fact that we are presented with a
fatal sanction levied for a single oversight. We have not been
able to uncover a case from this circuit sustaining a comparable
sanction under similar circumstances. See Benitez-Garcia v.
Gonzalez-Vega, 468 F.3d 1, 5 (1st Cir. 2006) ("Defendants do not
cite to us, and we have been unable to find, a case from this
circuit sustaining a dismissal with prejudice imposed solely for a
single allegation of noncompliance with a single (albeit multi-
part) discovery order -- at least where that non-compliance was
never brought to the plaintiffs' attention by the court prior to
dismissing the case."); see also Malot v. Dorado Beach Cottages
Assocs., 478 F.3d 40, 44 (1st Cir. 2007) (same). In our view, a
less severe remedy could have easily achieved the same aims as the
preclusion of the expert while still giving Esposito, potentially
the innocent victim of a defective product, his day in court.
Malot, 478 F.3d at 43 (recognizing "the strong presumption in favor
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of deciding cases on the merits"); Young, 330 F.3d at 81(referencing the "salutary policy favoring the disposition of cases
on the merits").
The defendants urge us to uphold the district court's
sanction. They rely principally on our decisions in Tower
Ventures, Inc. and Young. In both of these cases, we upheld a
district court's decision to dismiss the case of a party that had
failed to comply with case-management deadlines. Tower Ventures,
Inc., 296 F.3d at 48; Young, 330 F.3d at 83. In each of those
cases, however, the conduct of the sanctioned party was measurably
more egregious than Esposito's conduct was here.
In Tower Ventures, Inc., the sanctioned party, Tower
Ventures, had committed "serial violations of the court's
scheduling order." 296 F.3d at 45. The violations were missed
discovery deadlines, and the final one was particularly flagrant:
Tower Ventures waited eighty-one days after the discovery deadline
had passed, and eighteen days after its motion for summary judgment
was due, to ask the court for a further extension. Id. By that
time, the district court had already issued a show cause order,
asking Tower Ventures why its action should not be dismissed with
prejudice. Id.In Young, the district court dismissed Young's case
because of Young's "repeated failures to comply with court orders."
330 F.3d at 78. In particular, Young (i) failed to join the
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opposition in filing a joint statement containing a proposed
pretrial schedule as ordered by the court; (ii) did not respond to
the opposition's counter-claims until the court warned him that his
failure to do so could result in a dismissal; and (iii) refused to
appear for his own deposition, even after the court ordered him to
appear and warned him that a failure to do so could result in a
dismissal of his action. Id. at 79.
Here, by contrast, Esposito missed only one court-
scheduled deadline, and his behavior was not nearly as brazen as
the behavior of the sanctioned parties in either of those cases.
He neither engaged in the same level of foot-dragging as was
present in Tower Ventures, nor sloughed off a warning from the
district court like the plaintiff in Young.
We do not wish to casually discount the district court's
concern that a lesser sanction, such as the imposition of fines or
costs, might send a message to other litigants that "inattention to
deadlines can be purchased for a price." The deterrence value of
a sanction may certainty factor into a district court's calculus.
But, allowing the general interest in deterrence to hold too much
sway in the analysis runs afoul of the principle that "sanction[s]
must be handled on a case-by-case basis." Young, 330 F.3d at 81.
In other words, the punishment must approximately fit the crime.
Here, it did not. In the absence of a greater conviction that
parties will indeed attempt to purchase their way out of discovery
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compliance as a result of our holding in this case, we are not
persuaded that the sanction here was justified.
III. Conclusion
For the reasons provided above, we affirm the district
court's denial of the motion to remand, but we reverse the
exclusion of the expert testimony, vacate the entry of summary
judgment, and remand for further proceedings consistent with this
opinion, including the possible imposition of sanctions within the
district court's discretion. The parties shall bear their own
costs.
-Concurring and Dissenting Opinion Follows-
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WOODCOCK, District Judge, concurring in part and
dissenting in part.
I concur fully with the majority’s thoughtful resolution
of the removal issue. I disagree, however, with the majority’s
conclusion that the district judge abused his discretion by
precluding Esposito’s expert witness because I believe that, in
reaching this conclusion, the majority has applied a higher
dismissal standard to a Rule 37(c) discretionary sanction. I
respectfully dissent.
I. Two Standards: Dismissal and Rule 37(c)(1) Witness
Preclusion
A. The Dismissal Standard
Dismissal with prejudice is different from other
sanctions. Benitez-Garcia, 468 F.3d at 4 (describing dismissal as
“the harshest sanction”); Ortiz-Anglada v. Ortiz-Perez, 183 F.3d
65, 67 (1st Cir. 1999) (describing dismissal with prejudice for
failure to prosecute as “drastic”); Velazquez-Rivera v. Sea-Land
Serv., Inc., 920 F.2d 1072, 1075-76 (1st Cir. 1990) (describing
dismissal as “the most severe sanction”). A district court is
allowed to employ dismissal as a sanction “only when a plaintiff’s
misconduct is extreme.” Young, 330 F.3d at 81. Dismissal as a
sanction is “reserved for cases of ‘extremely protracted inaction
(measured in years), disobedience of court orders, ignorance of
warnings, contumacious conduct, or some other aggravating
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circumstances.’” Benitez-Garcia, 468 F.3d at 4 (quoting Cosme
Nieves v. Deshler, 826 F.2d 1, 2 (1st Cir. 1987)). Concerns of
fairness underlie this heightened standard, since the law favors
“disposition on the merits,” Ortiz-Anglada, 183 F.3d at 66-67, and
the non-compliant party should be given “notice and an opportunity
to be heard.” Benitez-Garcia, 468 F.3d at 5. Further, “where the
case is close, courts should prefer less severe sanctions that
preserve the possibility of disposition on the merits.” Pomales v.
Celulares Telefonica, Inc., 342 F.3d 44, 48 (1st Cir. 2003).
B. The Rule 37(c) Sanction Standard
The imposition of a lesser sanction under Rule 37(c),
such as witness preclusion, is not held to the high dismissal
standard and does not require egregious and repetitive misconduct.
Instead, Rule 37(c)(1) “requires the near automatic exclusion of
Rule 26 information that is not timely disclosed.” Wilson v.
Bradlees of New England, Inc., 250 F.3d 10, 20-21 (1st Cir. 2001).
Though the automatic nature of the preclusion sanction is softened
by the Macaulay factors, witness preclusion is not held to the
rigorous standards of dismissal. See Macaulay, 321 F.3d at 51(listing as factors the history of the litigation, the proponent’s
need for the challenged evidence, the justification (if any) for
the late disclosure, the opponent’s ability to overcome its adverse
effects (such as surprise and prejudice), and court docket
considerations).
-22-
C. Leading to Dismissal
This case touches on which standard applies when the
sanction of witness preclusion ultimately results in dismissal. My
view is that the Rule 37(c)(1) standard applies, not the dismissal
standard or something in between.
II. Rule 37(c)(1)
A. Automatic Exclusion as the Sanction in the
Ordinary Case
Rule 37(c)(1) provides:
If a party fails to provide information or
identify a witness as required by Rule 26(a)
or (e), the party is not allowed to use that
information or witness to supply evidence on a
motion, at a hearing, or at a trial, unless
the failure was substantially justified or is
harmless.
Fed. R. Civ. P. 37(c)(1). Esposito violated his obligation to
disclose his expert testimony first and on time as required both by
Rule 26(a)(2)(C) and by the court order in this case.3 In
precluding Esposito’s expert, the district court imposed the
“automatic sanction” of exclusion. Fed. R. Civ. P. 26 advisory
committee’s note, 1993 amendments (stating that “[p]aragraph (1)
prevents a party from using as evidence any witnesses or
3
Rule 26(a)(2)(C) states that “[a] party must make these
disclosures at the times and in the sequence that the court
orders.” Fed. R. Civ. P. 26(a)(2)(C). Esposito was required under
the terms of the April 16, 2007 Court Order to make his expert
disclosures by June 21, 2007 and to make his disclosures before the
defendants made theirs. Esposito violated both Rule and the Order.
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information that, without substantial justification, has not been
disclosed as required by Rules 26(a) and 26(e)(1). This automatic
sanction provides a strong inducement for disclosure of material
that the disclosing party would expect to use as evidence, whether
at a trial, at a hearing, or on a motion, such as one under Rule
56.”); Santiago-Diaz, 456 F.3d at 276 (stating that “[t]he baseline
rule is that ‘the required sanction in the ordinary case is
mandatory preclusion’” (quoting Lohnes v. Level 3 Commc’ns, Inc.,
272 F.3d 49, 60 (1st Cir. 2001))). Here, by excluding the expert’s
testimony, the district court imposed the “mandatory preclusion”
sanction that the Rule, the advisory committee, and this circuit
contemplate will be imposed in the “ordinary case.” Santiago-Diaz,
456 F.3d at 276. I find it difficult to conclude that the district
judge abused his discretion in doing so.
B. Exceptions to the Automatic Sanction of Exclusion
Rule 37(c) allows for exceptions to the automatic
sanction of exclusion when the party’s failure to comply is
“substantially justified” or “harmless.” Fed. R. Civ. P. 37(c)(1).
Here, neither exception applies.
1. Substantial Justification
There was no justification at all, much less a
substantial one, for Esposito’s failure to timely disclose his
expert. Esposito’s attorney ultimately conceded that the failure
-24-
to comply with express terms of both Rule 26(a) and the court
scheduling order was no one’s fault but his own.
2. Harmless
Examples of “harmless” late disclosure under Rule
37(c)(1) in the advisory committee notes suggest that the
“harmless” component has limited application, and the failure to
make a timely and complete expert disclosure does not fit.4 The
district court identified two types of harm caused by Esposito’s
failure to disclose: (1) Harm specific to the defendants in this
case, and (2) harm to future defendants and efficient court
administration. Standing alone, each would justify the exclusion
sanction; taken together, the two factors demonstrate that late
disclosure here was not harmless and the district judge’s decision
not an abuse of discretion.
The district court’s first concern was the impact on the
4
The Advisory Committee observed:
Limiting the automatic sanction to violations
“without substantial justification,” coupled
with the exception for violations that are
“harmless” is needed to avoid unduly harsh
penalties in a variety of situations, e.g.,
the inadvertent omission from a Rule
26(a)(1)(A) disclosure of the name of a
potential witness known to all parties; the
failure to list as a trial witness a person so
listed by another party; or the lack of
knowledge of a pro se litigant of the
requirement to make disclosures.
Fed. R. Civ. P. 37 advisory committee’s note, 1993 amendments.
-25-
defendants. The magistrate judge (whose opinion the district court
adopted) observed that if Esposito were permitted to make a belated
expert disclosure, defendants would be forced to have their expert
review Esposito’s expert’s report and make new disclosures in
response. Further, the magistrate judge noted that the defendants
had filed a motion for summary judgment based on the absence of a
plaintiff’s expert, and, if the late disclosure were allowed, they
would have to file a new summary judgment motion or withdraw the
one already filed.
Implicit in these concerns is the effect of Esposito’s
non-disclosure on the sequential disclosure process mandated by the
scheduling order and the resulting unfairness to the defendants.
By Esposito’s neglect, the party with the burden of proof
successfully shifted the burden of disclosure. This is what the
district judge was referring to when he wrote that, if
noncompliance with scheduling orders resulted in mere fines or
costs, “[p]laintiffs might seek to avoid initial expert disclosure
in order to gain unfair advantage in litigation.”
The district court’s second concern has several angles.
First, the district judge was troubled that if Esposito’s failure
were excused, future plaintiffs, emboldened by the lenient
treatment of Esposito, might make a cold-blooded judgment that the
advantage of receiving the defense expert’s opinions first exceeds
the disadvantage of paying court-ordered fines and costs. The
-26-
district judge worried that to some the fines or sanctions might be
“a price worth paying.”
The district court expressed a related institutional
concern that if parties perceive that noncompliance or inattention
to deadlines can be ignored, overlooked without significant
consequence, or purchased for a price, the court’s ability to
efficiently manage its docket would be compromised. This is not
trivial. The federal rules and local practice are rife with time
hurdles, the violation of which can lead to the imposition of a
range of the exclusion sanction. This has been a conscious choice
by the Rules Committee. As this circuit has recognized, experience
has taught that the parties cannot be left to police themselves,
and courts routinely impose and enforce deadlines to bring complex
federal cases to fruition. The federal bar is acutely aware of the
certainty of exclusion, and the lawyers proceed accordingly. A
deadline without a sanction severe enough to cause compliance is
not a deadline at all; it is a suggestion. See Macaulay, 321 F.3d
at 51 (stating that “trial judges must work a complicated equation,
balancing fairness to the parties with the need to manage crowded
dockets”).
In this context, the district court expressed concern
that the failure to exclude in this case would lead others to seize
upon the benevolence of the district court to gain unwarranted
strategic advantages, as happened here, by forcing the defense to
-27-
disclose its experts first. This type of consideration is, as this
circuit has repeatedly recognized, a legitimate concern for the
district court. Young, 330 F.3d at 83 (observing that deterrence
of others from similar misconduct is a proper purpose for a
district judge fashioning a sanction); Macaulay, 321 F.3d at 51(discussing the district judge’s right to consider the impact of
the sanction on the court’s docket); Tower Ventures, Inc., 296 F.3d
at 46 (stating that “the court’s efforts at stewardship are
undermined where, as here, a party cavalierly flouts the court’s
scheduling orders”).
C. First Circuit Authority
There is a decade of First Circuit authority that
supports the exclusion of an expert if a party fails to make a
timely disclosure. See Boston Gas Co. v. Century Indem. Co., 529
F.3d 8, 18 (1st Cir. 2008); Beaudette v. Louisville Ladder, Inc.,
462 F.3d 22, 26-27 (1st Cir. 2006); Santiago-Diaz, 456 F.3d at 276;
Gagnon, 437 F.3d at 191; Primus, 389 F.3d at 234-36; Young, 330
F.3d at 81-83; McCaulay, 321 F.3d at 50-53; Tower Ventures, 296
F.3d at 46; Lohnes, 272 F.3d at 59-61; Ortiz-Lopez v. Sociedad
Espanola de Auxilio Mutuo y Beneficiencia, 248 F.3d 29, 33-36 (1st
Cir. 2001); Klonoski v. Mahlab, 156 F.3d 255, 269 (1st Cir. 1998).
District courts in this circuit have routinely followed suit. See
Alves v. Mazda Motors of America, Inc., 448 F. Supp. 2d 285, 293-97
(D. Mass. 2006); Peterson v. Scotia Prince Cruises, Ltd., 222
-28-
F.R.D. 216, 217-18 (D. Me. 2004). I concede that each case stands
on its own facts and each can be distinguished in sometimes subtle
and sometimes significant ways, but up to now the consistent
message from this circuit has been that the trial bar must comply
with expert designation orders or face the likelihood that the
expert witness will be excluded.
D. The Decision to Exclude
The district judge’s decision to exclude a late-
designated expert would ordinarily pass as an unremarkable and
expected exercise of judicial discretion. The district judge
issued a thoughtful written opinion, discussed the sanctioning
alternatives, and elected, for clearly-stated and permissible
reasons, to impose the sanction of exclusion.
III. The Sanction’s Result
What makes this case different than a garden variety
imposition of the automatic sanction of exclusion? It must be the
harshness of the result: The district court entered summary
judgment against a person who sustained a serious physical injury
while using the defendants’ product.
A. A New Dismissal Standard
The majority seems to impose a new two-part analysis
before a district court may order a sanction that later leads to
dismissal: First, the district court must consider the traditional
Rule 37(c) Macaulay factors; second, the district court must
-29-
compare the violation at issue with conduct that had previously
justified dismissal.5 The majority thus grafts the dismissal
standard onto the traditional 37(c) rubric. In effect, the
majority reads a bifurcated sanction standard into Rule 37(c): For
sanctions not leading to dismissal, the Rule 37(c) discretionary
standard as elaborated by Macauley applies; for Rule 37(c)
sanctions leading to dismissal, the higher dismissal standard
applies.
B. Rule 37(c) Sanction Resulting in Dismissal
There are good reasons not to adopt a rule that the
higher dismissal standard should apply when a district court
imposes a lesser sanction that can over time lead to dismissal.
The most convincing is that the dispositive impact is not always
obvious when the sanction is imposed.6 In countless cases,
5
Ironically, the majority introduces this standard in
reversing the district judge, who applied the same two-step
analysis that the majority now proposes. The district judge
considered all the Rule 37(c) factors and went on to evaluate the
case under the dismissal standard, expressly discussing Young and
Tower Ventures. At the same time, I agree with the majority that
if the higher dismissal standard applies, it would be difficult to
affirm the district court, since there is no evidence in this
record of Young or Tower Ventures levels of misconduct.
6
A sanctioning court is often not in a good position to
predict such consequences. Here, although both parties and the
district judge correctly predicted that preclusion was tantamount
to dismissal, it is not inconceivable that Esposito could have
asserted the malfunction theory to avoid summary judgment. See
Walker v. General Elec. Co., 968 F.2d 120 (1st Cir. 1992); Canning
v. Broan-Nutone, LLC, No. 05-15, 2007 WL 1112355, at *16-17 (D.Me.
March 30, 2007) (recognizing the applicability of res ipsa loquitur
in the product liability context). The point is not that Esposito
erred in failing to assert the malfunction theory as a defense (it
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seemingly lesser sanctions turn out to be the functional equivalent
to dismissal under a different guise. Exclusion of a document,
restriction of the scope of a deposition, striking a late-disclosed
lay witness’s testimony—all may seem non-dispositive at the time.
However, when the dispositive motion is filed or as the trial
proceeds, the sanction may prove to have been decisive. The
district judge who at the time of imposition thinks the sanction is
relatively lenient may have instead condemned the violator to the
time and expense of a losing trial. Even the imposition of a
monetary sanction for a party without resources can be the
featherweight that tips the scales and forces an unfavorable
settlement. The point is that the imposition of a sanction must be
evaluated based on the standards applicable to the sanction itself,
not to its range of potential consequences. Otherwise, in addition
to evaluating and punishing the conduct that precipitated the
sanction, the district judge will be required to assess its overall
impact on the parties and the case itself, an assessment the
district judge is unlikely to be able to accurately make at the
time. If the district court’s prediction that the sanction will be
was likely inapplicable), but that, when he imposed the sanction,
the district judge may have incorrectly assumed exclusion would
automatically lead to dismissal. If the higher dismissal standard
is applied to a Rule 37(c) sanction, the court will avoid imposing
a sanction that could lead to dismissal unless the circumstances
are egregious. If the court has guessed wrong and the exclusion
would not have led to dismissal, the offending party will have
avoided exclusion under a more forgiving standard than Rule 37(c)
contemplates.
-31-
less than dispositive turns out to be inaccurate, it may well lead
to a retrospective appellate determination that the district court
should have applied a higher dismissal standard and that it abused
its discretion, not for imposing the sanction, but for failing to
accurately predict its effect.
I acknowledge that a policy argument can be made that
there should be a different standard for Rule 37(c) cases, such as
this one, where “all parties acknowledged that the sanction carried
the force of a dismissal.” But the language of Rule 37(c) does not
suggest a separate standard for the narrow band of cases where the
district judge is reasonably certain the sanction will end up
causing a dismissal, and to date the First Circuit has not carved
out such an exception.
To be clear, I have no quarrel with the proposition that
the district court should take into consideration the likely
consequence of a sanction, at least when the judge concludes that
the consequence is obvious. The Macauley factors include “the
proponent’s need for the challenged evidence,” 321 F.3d at 51, and
the likelihood that the proponent’s case will fail should be
considered under this factor. But here the district judge did just
that. In any event, I do not agree that the likelihood of
dismissal should transform a judge’s discretionary imposition of
the usual sanction into an abuse of that discretion or, put another
way, that under Macauley, the prospect of dismissal trumps the
-32-
other factors and elevates the usual sanction into a dismissal
analysis requiring egregious conduct.
IV. Consequences
I worry that the majority’s opinion will leave district
judges at sea as to when they are authorized to impose a sanction
if it leads or could lead to dismissal. Ironically, under the
majority’s formulation, the sanction of exclusion will end up being
applied only when it does not really matter and not imposed when it
does.
It would seem the obverse should be the case: If the
witness is critical, the proponent has a compelling incentive to
comply with the deadlines precisely because the exclusion will mean
more. In the long run, I believe the imposition of dismissal
standards on sanctions leading to dismissal will prove unfortunate.
Young, 330 F.3d at 83 (“Sanctions are often intended to do more
than calibrate the scales between a particular plaintiff and a
particular defendant. One principle purpose is to deter others
from similar misconduct.”).
I am also worried that the majority’s decision will be
read to extend to thousands of district court sanction decisions
that up to now have been viewed as the normal course of business.
The failure to timely respond to a motion, the failure to
adequately respond to a statement of material fact in a motion for
summary judgment, the failure to list an exhibit or witness before
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trial, and the myriad of other routine miscues often lead to
exclusion or waiver and later can be causally traced to an adverse
judgment. The list goes on and on and is the grist for the
district court mill. In short, district courts routinely impose
sanctions, great and small, that lead directly and indirectly to
one party winning and the other losing.
I am concerned that the majority’s opinion will be cited
to force the trial court to back away from imposing what up to now
has been the expected sanction and that the lackadaisical will draw
heart, the compliant will suffer, and the ability of the district
court to manage its docket will be compromised. To date, district
judges have imposed the Rule 37(c)(1) sanction of exclusion with
confidence that the appellate court will affirm their exercise of
discretion, but from now on, a district court will be wary of
excluding evidence that could lead later to judgment against the
offending party, unless the violator “engaged in the same level of
foot-dragging as was present in Tower Ventures, nor sloughed off a
warning from the district court like the plaintiff in Young.” The
normal Rule 37(c)(1) sanction of preclusion for failure to
designate an expert will become extraordinary, applicable only
where the violator has demonstrated a pattern of persistent
violation. This result runs contrary to the Rule’s mandate;
exclusion becomes the exception, and a lesser sanction the rule. 7
7
As a practical matter, the appellate court may never know the
extent to which this decision causes district judges to avoid the
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Finally, the majority states that “a less severe remedy
could have easily achieved the same aims as the preclusion of the
expert.” Preclusion aside, the other Rule 37(c)(1) sanctions are
payment of reasonable expenses, informing the jury of the party’s
failure, any of the orders listed in Rule 37(b)(2)(A)(i)-(vi), or
“other appropriate sanctions.” Fed. R. Civ. P. 37(c)(1)(A)-(C).
The orders listed in Rule 37(b)(2)(A)(i)-(vi) are nearly all the
equivalent of expert preclusion or more severe. See Fed. R. Civ.
P. 37(b)(2)(A)(i)-(vi) (setting forth a range of sanctions,
including directing that the matters embraced in the discovery
order be established for purposes of the action, prohibiting the
disobedient party from supporting or opposing the designated claims
or defenses, striking the pleadings in whole or in part, dismissing
the action or proceeding in whole or in part, or rendering a
default judgment).
The majority implicitly approves a “lesser sanction, such
as the imposition of fines or costs” and concludes that “[i]n the
absence of a greater conviction that parties will indeed attempt to
purchase their way out of discovery compliance as a result of our
automatic sanction of exclusion. Faced with appellate authority
stating that, absent a pattern of egregious conduct, witness
exclusion will constitute an abuse of discretion if it leads to
dismissal, district courts are likely to seek safer ground and
impose lesser sanctions. Neither party is likely to appeal such a
ruling; the offender will not, and the compliant party will know
that the lesser sanction fits squarely within the trial court’s
broad range of sanctioning discretion.
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holding in this case, we are not persuaded that the sanction here
was justified.” At least as it concerns the danger of compliance
being purchased at a price, the correct monetary sanction is an
exceedingly tricky question.8 What quantum of “greater conviction”
will be necessary before a trial judge can properly conclude that
the parties have attempted “to purchase their way out of discovery
compliance”? How does a trial court go about establishing this
factor?9 And, what amount, if any, will effectively deter parties
from attempting to purchase their way out of discovery compliance?
It is difficult to know on this record, which is exactly
the point. As this circuit has often recognized, the district
court, with its more intimate familiarity with the parties, the
attorneys, the travel of the case, the court docket, and other
factors, is in a far better position to make this judgment. Here,
the district judge considered the imposition of a monetary sanction
and concluded no amount would work because a fine or costs would
“send the message that noncompliance or inattention to deadlines
can be purchased for a price.” Instead, he made the difficult,
case specific judgment to exclude, and I conclude that, in doing
8
At the same time, I concede that more traditional monetary
sanction evaluations are not nearly as difficult to calculate, and
district courts are fully capable of assessing attorney’s fees and
costs for the rippling impact of late expert disclosure.
9
As Rule 37(c) provides exclusion as the automatic sanction,
it would seem that the burden to convince the trial court not to
impose the sanction of exclusion – and that offending parties are
not attempting to purchase their way out of discovery compliance –
should rest with the offenders, not with the compliant party or the
trial court.
-36-
so, the district judge acted within the scope of his authorized
discretion.
-37-