Jorge Dominguez, Jr. v. Crosby Tugs, L.L.C.
704 F. App'x 364
| 5th Cir. | 2017Background
- Plaintiff Jorge Dominguez, a Jones Act seaman employed by Crosby Tugs, sued Crosby for personal injuries allegedly sustained while working; Crosby had provided and paid for initial medical treatment and surgery and later declared him at maximum medical cure in 2015.
- Dominguez did not return to work for Crosby after release; his attorney later obtained a conflicting second-opinion report from Dr. Voohries asserting he was not at maximum medical cure and requesting further tests.
- Crosby sought an independent medical examination (IME) to rebut Dr. Voohries; Dominguez voluntarily agreed but missed the first two IME appointments (car trouble then a serious car accident) and missed a third IME that was court-ordered because he was incarcerated.
- Throughout discovery Dominguez initially failed to respond to multiple discovery requests, prompting Crosby to file four motions to compel; Dominguez ultimately provided the requested information in each instance while the motions were pending or after they were granted.
- Crosby moved to dismiss under Fed. R. Civ. P. 37 and 41 or, alternatively, to strike Dr. Voohries’ report and exclude his testimony; the district court dismissed Dominguez’s case with prejudice.
- The Fifth Circuit reversed and remanded, holding dismissal with prejudice was an abuse of discretion because (1) most noncompliance did not violate court orders and (2) the court did not consider lesser sanctions (e.g., striking the expert) before imposing the extreme sanction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal with prejudice was warranted for discovery abuse/noncompliance | Dominguez argued failures were inadvertent or excused (accident, incarceration) and he ultimately complied with discovery | Crosby argued repeated discovery failures and three missed IMEs warranted dismissal under Rules 37 and 41 | Reversed: dismissal was abuse of discretion because most failures did not violate court orders and the one court-ordered IME missed was due to incarceration, not contumacious conduct |
| Whether noncompliance with voluntary IME appointments supports dismissal | Missed voluntary IMEs were excused by accidents and not court-ordered | Crosby treated missed voluntary IMEs as part of obstructive conduct | Court held voluntary IME misses cannot be treated as noncompliance with court orders; they do not by themselves justify dismissal |
| Whether failure to obey a single court-ordered IME justifies dismissal with prejudice | Dominguez contended incarceration made attendance impossible and sanctions short of dismissal were available | Crosby argued any failure to comply with a court order supports dismissal under Rules 37/41 | Held failure to attend the single court-ordered IME was not contumacious; dismissal still inappropriate without finding willfulness or prior lesser sanctions exhausted |
| Whether the district court needed to impose lesser sanctions before dismissal | Dominguez argued the court failed to consider less severe remedies (e.g., striking expert) | Crosby offered striking Dr. Voohries’ report as an alternative but district court did not employ it | Held court abused its discretion by leaping to dismissal without considering or applying the less severe sanction proposed by Crosby |
Key Cases Cited
- Manderson v. Chet Morrison Contractors, Inc., 666 F.3d 373 (recognizes shipowner duty of cure)
- Johnson v. Marlin Drilling Co., 893 F.2d 77 (defines maximum medical cure standard)
- Callip v. Harris Cty. Child Welfare Dep’t, 757 F.2d 1513 (standard of review for dismissal with prejudice)
- Millan v. USAA Gen. Indem. Co., 546 F.3d 321 (dismissal with prejudice is an extreme sanction; limited discretion)
- Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d 241 (construing limits on dismissal sanctions)
- Gray v. Fid. Acceptance Corp., 634 F.2d 226 (dismissal only for clear record of delay/contumacious conduct)
- Mastronardi v. Wells Fargo Bank, [citation="653 F. App'x 356"] (dismissal with prejudice requires prior lesser sanctions tried or found futile)
- Rogers v. Kroger Co., 669 F.2d 317 (reversal where court failed to consider less severe sanctions)