COMBS v. ROCKWELL INTERN. CORP

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Docket Number

Nos. 89-56212, 90-55118.

Attorney(S)

Mike Pincher, Palmdale, Cal., for plaintiff-appellant. Paul W. Cane, Jr., Paul, Hastings, Janofsky Walker, Los Angeles, Cal., for defendants-appellees. Michael R. Feinberg, Schwartz, Steinsapir, Dohrmann Sommers, Los Angeles, Cal., for defendants-appellees.

Judges

Alfred Theodore Goodwin

Acts

Labor — General Provisions — Employee Retirement Income Security Program — Protection Of Employee Benefit Rights — Congressional Findings And Declaration Of Policy

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Smart Summary

Factual and Procedural Background

Clarence Combs was employed by Rockwell International Corporation until 1969 and was entitled under the collective bargaining agreement between Rockwell and the United Automobile, Aerospace Agricultural Implement Workers of America (UAW) to retain seniority and recall rights for five years. After not being recalled by 1974, his rights expired. In 1977, Rockwell rehired Combs, who then discovered that Rockwell had allegedly violated his seniority and recall rights by hiring others before rehiring him. Combs filed a grievance in 1978 with Rockwell and Local 887-UAW, which was denied on the merits in 1979. Although he had the right to appeal internally through the union's procedures, Combs declined to do so.

Nearly nine years later, Combs filed a damages action against Rockwell, Local 887, and the UAW, asserting claims including breach of the collective bargaining agreement, breach of fiduciary duty under ERISA, breach of the duty of fair representation, and various tort claims against all defendants.

During discovery, Combs' deposition transcript was altered by his counsel without his review, materially changing his testimony on key issues. Upon discovery of these alterations, the defendants moved to dismiss the action as a sanction for misconduct or, alternatively, for summary judgment on statute of limitations and failure to exhaust internal remedies grounds. The district court dismissed the action with prejudice pursuant to Fed.R.Civ.P. 11 and the court’s inherent powers for violation of Fed.R.Civ.P. 30(e).

Legal Issues Presented

Whether dismissal is an appropriate sanction for a party’s falsification of deposition testimony in violation of Fed.R.Civ.P. 30(e).
Whether the plaintiff’s claims are barred by the statute of limitations and failure to exhaust internal union remedies.
Whether sanctions, including attorney’s fees and costs, are appropriate for a frivolous appeal.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Halaco Eng'g Co. v. Costle, 843 F.2d 376, 380 (9th Cir. 1988)	Use of Fed.R.Civ.P. 11 and inherent court powers to sanction misconduct including falsification.	Supported dismissal as an appropriate sanction for falsifying deposition testimony.
Fjelstad v. American Honda Motor Co., 762 F.2d 1334, 1338 (9th Cir. 1985)	Sanctions for discovery abuses and misconduct.	Reinforced the propriety of dismissal for deposition falsification.
Professional Seminar Consultants v. Sino Am. Tech., 727 F.2d 1470, 1474 (9th Cir. 1984)	Dismissal as sanction for falsifying evidence.	Confirmed that material falsification justifies dismissal.
Wyle v. R.J. Reynolds Indus., Inc., 709 F.2d 585, 589, 591 (9th Cir. 1983)	Sanctions for discovery misconduct.	Supported the court’s inherent power to dismiss for deposition falsification.
Sigliano v. Mendoza, 642 F.2d 309, 310 (9th Cir. 1981)	Sanctions for discovery abuses.	Used to justify dismissal sanction.
National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642-43 (1976)	Availability of dismissal as the most severe sanction in appropriate cases.	Emphasized that dismissal is within the court’s discretion for serious misconduct.
Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987), cert. denied	Standard for appellate review of dismissal sanctions.	Noted that dismissal will be overturned only if clearly outside acceptable range.
Kelley v. International Brotherhood of Elec. Workers, 803 F.2d 516, 519 (9th Cir. 1986)	Sanctions for frivolous appeals.	Supported imposition of double costs and attorney’s fees for frivolous appeal filed by Combs.
Optyl Eyewear Fashion Int'l Corp. v. Style Cos., Ltd., 760 F.2d 1045, 1052 (9th Cir. 1985)	Sanctions for frivolous appeals even after trial court sanctions.	Supported affirming sanctions against appellant for frivolous appeal.

Court's Reasoning and Analysis

The court found that Combs authorized his counsel to make material alterations to his deposition transcript without personally reviewing the changes, directly violating Fed.R.Civ.P. 30(e), which requires the witness to review and state reasons for any changes. These alterations reversed answers on key issues central to Combs' claims, such as the intent of Rockwell and the UAW and his own medical condition. This conduct amounted to an attempt to deceive the district court through falsified evidence.

The court emphasized that dismissal is an appropriate and available sanction under Fed.R.Civ.P. 11 and the court’s inherent powers for such misconduct. The severity of dismissal is justified in cases of egregious falsification, and the court cited multiple precedents supporting this principle. Because the misconduct was so severe, the court found no need to address the merits of the defendants’ summary judgment motion. The appeal was found to be frivolous, warranting the imposition of double costs and attorney’s fees against Combs and his counsel.

Holding and Implications

Holding: The Court of Appeals AFFIRMED the district court’s dismissal of Combs’ damages action with prejudice as a sanction for falsifying deposition testimony and upheld the imposition of sanctions for a frivolous appeal.

Implications: The decision directly results in the termination of Combs’ claims against Rockwell and the unions, with no consideration of the substantive merits due to procedural misconduct. The ruling reinforces the principle that falsification of evidence is a grave violation warranting dismissal and highlights the importance of strict adherence to deposition procedures under Fed.R.Civ.P. 30(e). No new legal precedent was established beyond the application of existing standards for sanctions and dismissal.

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CLARENCE LEE ROY COMBS, PLAINTIFF-APPELLANT, v. ROCKWELL INTERNATIONAL CORPORATION; AMALGAMATED LOCAL 887-UAW, DEFENDANTS-APPELLEES. CLARENCE LEE ROY COMBS, PLAINTIFF-APPELLEE,

GOODWIN, Circuit Judge:

Clarence Combs appeals the dismissal of his damages action against Rockwell International Corp.; the United Automobile, Aerospace Agricultural Implement Workers of America (UAW); and UAW's chartered affiliate Amalgamated Local 887-UAW (Local 887). We affirm.

Form 1962 until 1969, Combs was employed by Rockwell. Pursuant to Article XI, Section 17(g) of the collective bargaining agreement between Rockwell and the UAW (Combs' union), Combs was entitled to retain his seniority and recall rights for five years. He was not recalled after 1969, and his rights expired in 1974.

In 1977, Rockwell rehired Combs. Combs then discovered information that led him to conclude that Rockwell had violated his seniority and recall rights by hiring other workers before he was rehired. In 1978, Combs filed a grievance with Rockwell and Local 887. In 1979, Rockwell and Local 887 notified Combs in writing that his grievance had been denied on the merits. Under the UAW's Constitution, actions by Local 887 could be appealed, first to the Local Union's bargaining unit (i.e. Rockwell), then to the Local Union itself, then to the UAW's Executive Board, and finally to the UAW's Convention Appeals Committee or the Public Review Board. Combs declined to exercise his right of internal appeal.

Nine years after the rejection of his initial grievance, Combs filed this action against Rockwell, Local 887, and the UAW. His claims included: breach of the collective bargaining agreement by Rockwell; breach of fiduciary duty in violation of 29 U.S.C. § 1001 et seq. ("ERISA") by Rockwell; breach of the duty of fair representation by Local 887 and the UAW; and — alleged against all defendants — intentional infliction of emotional distress, negligent infliction of emotional distress, fraudulent misrepresentation, and negligence.

In the fall of 1988, Rockwell and the UAW deposed Combs. At the conclusion of the deposition, the parties stipulated that the original transcript would be sent to Combs' attorney in order to have Combs review it and make necessary changes to correct transcribing errors. Although Combs said he was satisfied that his testimony was correct and truthful, he gave counsel permission to alter any of his responses. Counsel proceeded to make thirty-six changes, many of which materially altered the substance of Combs' testimony. Among the most striking changes were several reversals of Combs' answers to key questions: whether he believed that Rockwell or the UAW had intended to harm him financially or otherwise; whether a Rockwell employee knew about the seniority status of his fellow employees; whether the UAW purposefully breached its duty of fair representation; and whether his headaches were related to the way the UAW had treated him. Despite his sworn statement to the contrary, Combs never reviewed either the original or the altered deposition transcripts. A magistrate ordered Combs to give a second deposition, during which these material alterations were revealed.

Rockwell and the unions moved to dismiss Combs' action as the appropriate sanction for his misconduct. In the alternative, the defendants moved for summary judgment on the merits, claiming that Combs' suit was barred by the statute of limitations as well as by his failure to exhaust internal union remedies. The trial court dismissed the action with prejudice, pursuant to Fed.R.Civ.P. 11 and the court's inherent powers for violating Fed.R.Civ.P. 30(e).

Dismissal is an appropriate sanction for falsifying a deposition. Fed.R.Civ.P. 11, as well as the court's inherent powers, can be called upon to redress such mendacity. See Halaco Eng'g Co. v. Costle, 843 F.2d 376, 380 (9th Cir. 1988); Fjelstad v. American Honda Motor Co., 762 F.2d 1334, 1338 (9th Cir. 1985); Professional Seminar Consultants v. Sino Am. Tech., 727 F.2d 1470, 1474 (9th Cir. 1984); Wyle v. R.J. Reynolds Indus., Inc., 709 F.2d 585, 589, 591 (9th Cir. 1983); Sigliano v. Mendoza, 642 F.2d 309, 310 (9th Cir. 1981).

Combs authorized counsel to alter his deposition in material respects. He signed the revised deposition and swore, under penalty of perjury, that he had reviewed the transcript and had himself made the changes. This conduct was in direct violation of Fed.R.Civ.P. 30(e), which states:

When the testimony is fully transcribed the deposition shall be submitted to the witness for examination . . . . Any changes in form or substance which the witness desires to make shall be entered . . . with a statement of the reasons given by the witness for making them.

Counsel's changes dealt with issues of central importance in the upcoming summary judgment hearing. Combs' belief that Rockwell and the UAW had intended to harm him was crucial to his claim, as was his alleged notice from co-workers of the alleged breach of the collective bargaining agreement. Combs, whether or not in collusion with counsel, thus attempted to deceive the district court on material matters before it. Falsifying evidence is grounds for the imposition of the sanction of dismissal. See, e.g., Sino American, 727 F.2d at 1473-74.

"There is a natural tendency on the part of reviewing courts, properly employing the benefit of hindsight, to be heavily influenced by the severity of outright dismissal as a sanction for failure to comply with a discovery order . . . But here, as in other areas of the law, the most severe in the spectrum of sanctions provided by statute or rule must be available to the district court in appropriate cases." National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642-43, 96 S.Ct. 2778, 2780-81, 49 L.Ed.2d 747 (1976). Cf. Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987), cert. denied, 488 U.S. 819, 109 S.Ct. 59, 102 L.Ed.2d 37 (1988) ("[W]e will overturn a dismissal sanction only if we have a definite and firm conviction that it was clearly outside the acceptable range of sanctions.").

The mendacity of the client and the combined fraud and incompetence of his counsel are so egregious that there is no need to reach the merits of the motion for summary judgment. The case was properly dismissed.

Combs' contentions on appeal are wholly without merits. Accordingly, we assess double costs and attorney's fees as sanctions for filing a frivolous appeal. See Kelley v. International Brotherhood of Elec. Workers, 803 F.2d 516, 519 (9th Cir. 1986); see also Optyl Eyewear Fashion Int'l Corp. v. Style Cos., Ltd., 760 F.2d 1045, 1052 (9th Cir. 1985) (imposing sanctions even where the trial court had already done so).

Counsel for Rockwell has calculated its attorney's fees in the amount of $11,250. Combs and his counsel are jointly and severally liable for costs and attorney's fees to be taxed upon presentation of cost bills by both defendants. This panel will retain jurisdiction to enter judgment upon the presentation of the cost bills.

AFFIRMED.