Filed: Mar. 01, 2002
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2002 Decisions States Court of Appeals for the Third Circuit 3-1-2002 Ciaverelli v. Stryker Med Precedential or Non-Precedential: Docket 0-2873 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002 Recommended Citation "Ciaverelli v. Stryker Med" (2002). 2002 Decisions. Paper 141. http://digitalcommons.law.villanova.edu/thirdcircuit_2002/141 This decision is brought to you for free and open access by the Opinions of the United State
Summary: Opinions of the United 2002 Decisions States Court of Appeals for the Third Circuit 3-1-2002 Ciaverelli v. Stryker Med Precedential or Non-Precedential: Docket 0-2873 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002 Recommended Citation "Ciaverelli v. Stryker Med" (2002). 2002 Decisions. Paper 141. http://digitalcommons.law.villanova.edu/thirdcircuit_2002/141 This decision is brought to you for free and open access by the Opinions of the United States..
More
Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit
3-1-2002
Ciaverelli v. Stryker Med
Precedential or Non-Precedential:
Docket 0-2873
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002
Recommended Citation
"Ciaverelli v. Stryker Med" (2002). 2002 Decisions. Paper 141.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/141
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2002 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
- - -
THERESA CIAVERELLI, : NO. 00-2873
Appellant :
:
v. : Philadelphia,
Pennsylvania
: February 4, 2002
STRYKER MEDICAL, a division : Civ. No.99-cv-04745
of STRYKER CORPORATION, :
CONSTA CARE, JOHN DOE BED :
MANUFACTURER, JOHN DOE BED :
DISTRIBUTOR :
. . . . . . . . . . . . . . . .
BENCH OPINION
BEFORE: HONORABLE EDWARD R. BECKER, CHIEF
JUDGE
UNITED STATES COURT OF APPEALS
HONORABLE THEODORE A. McKEE
UNITED STATES COURT OF APPEALS JUDGE
THE HONORABLE MARYANNE TRUMP BARRY
UNITED STATES COURT OF APPEALS JUDGE
- - -
APPEARANCES:
DEBBIE A. CARLITZ, ESQUIRE (ARGUED)
Carlitz & Eisenberg
826 Bustleton Pike, Suite 104
Feasterville, PA 19053
-- Counsel for Appellant
JOSEPH M. PROFY, ESQUIRE (ARGUED)
ROBERT A. NICHOLAS, ESQUIRE
Reed Smith Shaw & McClay
2500 One Liberty Place
1650 Market Street
Philadelphia, PA 19103
-- Counsel for Appellee
- - -
Transcribed by: Geraldine C. Laws, CET
(Proceedings recorded by electronic sound recording;
transcript provided by AAERT-certified transcriber.)
2
1 (The following occurred in open court:)
2 THE HONORABLE JUDGE BECKER: The panel has
conferred
3 and concluded that we are in as good a position to decide
4 this case now as we will ever be. There is nothing here
5 which requires a precedential opinion; the case simply
6 involves the application of the facts of record to
settled
7 principles, so there would be no point to our writing an
8 opinion for publication. Accordingly I will now deliver
the
9 opinion and judgment of the Court from the bench. And
under
10 our practice this will be sent to a reporter and it will
be
11 transcribed and ultimately filed of record in written
form.
12 This is an appeal from an order of the District
13 Court dated August 29th, 2000 which states only that
"Upon
14 consideration of defendant's motion to dismiss for
failure to
15 comply with court orders compelling discovery, and
following
16 telephone conference call in this matter on July 18th,
2000,
17 and the expiration of a 30-day extention of time given to
18 plaintiff at that time, it is hereby ordered that the
19 defendant's motion to dismiss is granted and plaintiff's
20 Complaint is dismissed in its entirety with prejudice.
See
21 Federal Rule of Civil Procedure 37(b)(2)(C)."
22 It is the considered judgment of the panel that
this
23 articulation does not satisfy the rigorous standards
24 established by this Court for sanctions dismissals. We
have
25 made it clear that dismissal with prejudice is an extreme
3
1 sanction for only the most egregious cases. See, e.g.,
2 Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863,
866
3 (3rd Cir. 1984). We have said that "dismissal is a
drastic
4 sanction and should be reserved for those cases where
there
5 is a clear record of delay or contumacious conduct by the
6 plaintiff. Donnelly v. Johns-Manville Sales Corp., 677
F.2d
7 339, 342 (3rd Cir. 1982)."
8 Now, we understand that we review the order of
the
9 District Court for abuse of discretion which means that
our
10 review is deferential. But in deciding whether or not a
11 District Court has abused its discretion, we are guided
by
12 the manner in which the Court balanced the Poulis factor,
and
13 whether the record supports its finding. Poulis laid out
six
14 factors to be considered by District Court in determining
15 whether to dismiss pursuant to Rule 37. I need not
burden
16 the record by listing the six factors, because all of us
are
17 familiar with them.
18 The problem with the order of the District Court
in
19 this case is that there has been no articulation by the
20 District Court of the Poulis factors. And in similar
21 situations where there has been no articulation, we have
22 required a remand to the District Court. See, e.g.,
Titus v.
23 Mercedes Benz of North America, an opinion that I
authored,
24 695 F.2d 746, 749 and 50 (3rd Cir. 1982).
25 Judge Joyner is a very able member of the
District
4
1 Bench, a man whom we all admire and respect. But just as
it
2 was said of the great Homer, that Homer nods, in this
case
3 Judge Joyner nodded and acted a little precipitously. I
note
4 that the panel is not certain that he had all the facts
5 before him in terms of what plaintiff's counsel had done.
6 And indeed we have serious doubt that a clear balancing
of
7 the Poulis factors would have justified a dismissal,
8 especially in light of the concession that counsel for
9 appellee was constrained to make at oral argument this
10 morning that there really is no information other than
the
11 matter of the correct serial number of the bed, to which
I
12 will turn in a moment, that the defendant does not now
have.
13 Now, we will surely not pin any medals on
14 plaintiff's counsel for celerity or diligence in getting
the
15 material to the defense. She acted here more like the
16 tortoise than the hare, but ultimately she did get them
what
17 they needed.
18 With respect to the serial number of the bed, it
19 appears from our colloquy this morning that
notwithstanding
20 the defense remonstration that it has been five years and
21 that she had all of this time, plaintiff's counsel
22 represented that they fairly believed to have the correct
23 serial number and were pursuing the location of the bed
with
24 the officials at St. Mary's Hospital, that they had made
25 requests for information, but were stonewalled and did
not
5
1 have an opportunity to pursue it by discovery because the
2 sanctions dismissal intervened.
3 We have some doubts under the circumstances as
to
4 whether the history of dilitoriness would justify
sanctions.
5 There does not appear to us to be willfulness and bad
faith
6 on the part of the plaintiff's counsel or real
responsibility
7 on the plaintiff. While we're not sure the Complaint is
8 meritorious because we don't know what will happen with
the
9 bed, we certainly cannot resolve this issue at this
point.
10 At all events, if plaintiff fails to locate the
bed
11 after discovery, this will be an appropriate matter for
the
12 Court to take up on summary judgment.
13 Accordingly, we conclude that our cases
constrain us
14 to conclude that the District Court abused its discretion
in
15 ordering the case dismissed as a sanction. It made no
16 findings, it did not do the balancing, and it indeed did
not
17 conclude that lesser sanctions would better serve the
18 interests of justice which is another of our
requirements.
19 Whether or not lesser sanctions are in order in this case
is
20 a matter that we leave to the District Court on remand.
21 Appellee's counsel has pointed out that some of the cases
22 that plaintiff has cited and that I have adverted to in
this
23 bench opinion were cases where the dismissal was sua
sponte,
24 but those opinions nonetheless clearly set forth Circuit
law
25 and have been adopted in cases where the dismissal was
not
6
1 sua sponte.
2 Accordingly, the order of the District Court
will be
3 reversed and the case remanded to the District Court for
4 further proceedings. Costs will be taxed against the
5 appellee. This constitutes the opinion and judgment of
the
6 Court, but the formal opinion and judgment will follow.
7 Judge McKee, do you have anything to add or do
you
8 concur in the opinion as delivered?
9 HONORABLE JUDGE McKEE: I concur; nothing to
add.
10 HONORABLE JUDGE BECKER: Judge Barry?
11 HONORABLE JUDGE BARRY: I concur; nothing to
add.
12 HONORABLE JUDGE BECKER: Very well.
13 Thank you, and the crier will notify whoever is
in
14 charge of processing bench opinions. Thank you very
much.
15 (Conclusion of bench opinion)
_________________________
TO THE CLERK:
Please file the foregoing Opinion.
BY THE COURT:
/s/ Edward R. Becker
Chief Judge
