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Hindmon v. National-Ben Franklin Life Insurance Corp.

decided: May 12, 1982.

CHARLES E. HINDMON, PLAINTIFF-APPELLANT,
v.
NATIONAL-BEN FRANKLIN LIFE INSURANCE CORPORATION, DEFENDANT-APPELLEE.



Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 80 C 2363 -- Julius J. Hoffman, Judge.

Before Cummings, Chief Judge, Swygert, Senior Circuit Judge, and Cudahy, Circuit Judge.

Author: Cudahy

Plaintiff-appellant Charles E. Hindmon appeals from the dismissal of his Complaint against National-Ben Franklin Life Insurance Corporation ("National-Ben") and from the entry of a default judgment against him in the amount of $113,987.94 on National-Ben's Counterclaim. These orders were entered by the district court under Rule 37 of the Federal Rules of Civil Procedure as sanctions for Hindmon's failure to comply with proper discovery requests. Finding no abuse of discretion, we affirm the judgment of the district court.

I.

This action was commenced by plaintiff Hindmon on May 12, 1980. Defendant National-Ben filed its Answer, Affirmative Defenses and Counterclaim on June 20, 1980. Three days later, National-Ben filed its First Set of Interrogatories and First Request for Production of Documents.

The district court set an initial status hearing for September 16, 1980. At that status hearing, the court noted that Hindmon had failed to reply to National-Ben's Affirmative Defenses and was in default on the Counterclaim. See Appellee's Appendix at 10, 14. The court ordered Hindmon to respond to defendant's Counterclaim by September 25, 1980; it also set a further status hearing for October 31, 1980. Plaintiff failed to appear at this second status hearing and, as of November 1, 1980, had yet to comply with any of defendant's discovery requests. The district court set the case for trial on December 1, 1980.

Despite Hindmon's failure to respond to National-Ben's discovery requests, National-Ben filed a Notice of Deposition of Hindmon to commence on November 24, 1980, just three court days prior to trial. On November 15, 1980, almost four months after document production was due, Hindmon produced some documents. Hindmon did not, however, file a formal response to defendant's Request for Production, as is required by Federal Rule of Civil Procedure 34(b), nor did he represent that document production was complete.

On November 19, 1980, National-Ben filed a Motion to Compel Discovery, pursuant to Federal Rule of Civil Procedure 37(a). The district court granted the motion and ordered Hindmon to respond to all outstanding discovery requests by November 25, 1980. See Appellee's Appendix at 16. National-Ben also requested an order compelling Hindmon to appear for the taking of his deposition on November 24, but the district court denied this request without prejudice. Id.

On November 21, 1980, counsel for Hindmon attempted to reach counsel for National-Ben by telephone, and left a message at the latter's office that Hindmon would not appear for his deposition on November 24, 1980, as required by the Notice of Deposition, but would appear instead on November 25, 1980.

On November 24, 1980, National-Ben moved to dismiss Hindmon's Complaint and for an order of default on its Counterclaim, pursuant to Rule 37 of the Federal Rules of Civil Procedure. National-Ben stated in its verified motion that Hindmon had refused to appear for the taking of his deposition on November 24, as scheduled, and that Hindmon had ignored each of National-Ben's discovery requests.

Because Hindmon had not yet failed to appear for the taking of his deposition on November 24, the district court denied National-Ben's Motion. See Appellee's Appendix at 25, 88-89. The court issued a clear warning, however, that if Hindmon failed to comply with the Order Compelling Discovery and with the Notice of Deposition, "the sanctions requested in this motion will then be appropriate." Id. at 89.

Hindmon then failed to appear that day for the taking of his deposition as required by the Notice of Deposition. Instead, he appeared on November 25, 1980, and made the unilateral demand that the deposition conclude early the next afternoon so that he could catch an afternoon flight back to Texas. See Appellee's Appendix at 28-29, 34-37. Hindmon in fact departed on the afternoon of November 26, and, further, refused to appear for a continuation of the deposition on November 28, 1980. Id. at 107. At no time did Hindmon seek a protective order regarding the date or time of his deposition.

On November 25, 1980, while Hindmon's deposition was in progress, Hindmon served upon National-Ben "Plaintiff's Answers to Defendant's First Set of Interrogatories." These Answers, however, were signed by Hindmon's attorney, rather than by Hindmon himself, in violation of the clear mandate of Federal Rule of Civil Procedure 33(a).*fn1 Moreover, Hindmon testified during his deposition that he had neither seen the Interrogatories nor verified the Answers. Hindmon further testified that although he could have provided some information "through other sources," his attorney had never asked him the specific questions propounded in the Interrogatories. See Appellee's Appendix at 61-64 (transcript of deposition).

On November 26, 1980, after the court's November 25 deadline had expired and one court day before trial, Hindmon produced some documents that were responsive to National-Ben's Request for Production. The documents consisted of leases, voluminous training manuals that Hindmon had obtained from another insurance company, and fourteen insurance policy files. No other ...


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