KRONBERG v. LaROUCHE No. 11-1015.
MARIELLE KRONBERG ("Molly"), Plaintiff-Appellee, v. LYNDON LaROUCHE; BARBARA BOYD; LYNDON LAROUCHE POLITICAL ACTION COMMITTEE; EIR NEWS SERVICE, INCORPORATED, Defendants-Appellants.
United States Court of Appeals, Fourth Circuit.
Decided: January 6, 2012.
Jonathan Richard Mook, DIMUROGINSBERG, PC, Alexandria, Virginia, for Appellants.
James Stephen DelSordo, ARGUS LEGAL, LLC, Manassas, Virginia, for Appellee.
Bernard J. DiMuro, Nina J. Ginsberg, DIMUROGINSBERG, PC, Alexandria, Virginia; Edward B. MacMahon, Jr., Middleburg, Virginia, for Appellants.
Affirmed by unpublished per curiam opinion.
Marielle Kronberg, a former supporter of Lyndon LaRouche, instituted this action under 42 U.S.C. § 1985 against LaRouche, Barbara Boyd, the Lyndon LaRouche Political Action Committee, and the EIR News Service (collectively "the Defendants"), alleging that they conspired to injure her in retaliation for her testimony at LaRouche's 1988 criminal trial. Following the denial of the Defendants' Rule 12(b)(6) motion to dismiss, the case proceeded to discovery. After Kronberg failed to meet her discovery obligations, the magistrate judge ordered a show cause hearing and eventually entered a Report and Recommendation recommending that the case be dismissed without prejudice. Following a
Kronberg and her husband, Kenneth, were members of the National Caucus of Labor Committees (NCLC), an organization of LaRouche supporters. Kenneth also operated PMR, a printing company for LaRouche's materials. In April 2007, Kenneth committed suicide and, in the following months, LaRouche made statements blaming Kronberg for her husband's death and claiming that Kronberg falsely testified against LaRouche at the 1988 trial. In response, Kronberg filed an action against the Defendants in federal court, alleging that they violated 42 U.S.C. § 1985 and committed libel
The Defendants moved to dismiss, claiming that § 1985 creates a cause of action for litigants—not witnesses like Kronberg—and that Kronberg's complaint failed to state a viable claim. The district court denied that motion.
The Defendants next moved to disqualify Kronberg's counsel, John Markham, who was the Assistant United States Attorney in charge of prosecuting LaRouche in 1988. The district court granted that motion and disqualified Markham from further involvement in the case. On July 7, 2010, the parties agreed to a joint discovery plan. At this point, Kronberg was represented by John Bond, who had been serving as local counsel. As relevant here, Kronberg failed to meet her discovery obligations, and Bond eventually moved to withdraw. Kronberg's discovery failures ultimately led the Defendants to file a Motion to Dismiss and/or for Appropriate Sanctions for Failure to Comply with Discovery Orders.
The magistrate judge scheduled a hearing on the motion, which neither Bond nor Kronberg attended. That action prompted the magistrate judge to enter a show cause order "why this case should not be dismissed for failure to prosecute and failure to comply with previous orders of this court" and to schedule another hearing. (J.A. 285). Kronberg appeared at the show cause hearing, but Bond was again absent. During this hearing, Kronberg informed the court that Bond never told her about the discovery issues or the earlier hearing dates. She also read a statement requesting that the court reconsider the disqualification order.
On November 8, 2010, the magistrate judge entered a Report and Recommendation recommending that the case be dismissed without prejudice. The magistrate judge first noted that Bond had finally contacted the court, informing it of significant health problems and stating that he was simply unable to serve as lead counsel in a case given these health issues. On that basis, the magistrate judge recommended granting the motion to withdraw. Turning to the motion for sanctions, the magistrate judge found that Federal Rules of Civil Procedure 16 and 37(b) both authorized sanctions and that "sanctions are appropriate." (J.A. 293). The magistrate judge then stated, however, that it was "uncertain as to whether the responsibility for this bad faith conduct lays primarily with the plaintiff or with her attorney," (J.A. 293) and that, because of this uncertainty, a dismissal without prejudice was the "more appropriate sanction in this case," (J.A. 295). In declining to dismiss the case with prejudice, the magistrate judge noted that, prior to Markham's disqualification, Kronberg had "demonstrated herself to be a capable and diligent litigant," thus suggesting that the failures to comply with the court orders might be more the fault of her attorney. (J.A. 296). The magistrate judge conceded that the record was unclear on exactly how blameworthy Kronberg herself was and that she undoubtedly "bears some personal responsibility" for the discovery abuses. (J.A. 297). After a
On appeal, the Defendants contend that dismissal with prejudice was the appropriate sanction given Kronberg's flouting of the court's discovery orders.
Two rules provide the basis for sanctions in this case. Rule 16(f) provides, in relevant part, that "the court may issue any just orders" if a "party or its attorney" either "fails to appear at a scheduling or other pretrial conference" or "fails to obey a scheduling or other pretrial order." Fed. R. Civ. P. 16(f)(1). Rule 37(b) provides for sanctions for failure to comply with a court order and states that a court "may issue further just orders" which "may include,"
The Defendants rely primarily on
The difficulty with the Defendants' argument is that
Instead, the decision to implement sanctions is left to the discretion of the trial court. In this case, the magistrate judge weighed the facts before it and ultimately concluded that— because Kronberg had been a diligent litigant when she had counsel of choice—it was unfair to dismiss the case with prejudice. This decision is consistent with the "strong policy that cases be decided on the merits, and that dismissal without deciding the merits is the most extreme sanction" that should only be done "with restraint."
For the foregoing reasons, the district court's order is affirmed.
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