United States Court of Appeals,

Fifth Circuit.

No. 95-40102

Summary Calendar.

Earle B. O'NEILL, Plaintiff-Appellant,

v.

AGWI LINES, et al., Defendants-Appellees.

Feb. 6, 1996.

Appeal from the United States District Court for the Southern District of Texas.

Before GARWOOD, WIENER and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge.

Plaintiff appeals from the district court's order sanctioning him for his failure to comply with

the district court's order of conference. The district court dismissed plaintiff's Jones Act claim

without prejudice and ordered plaintiff's attorney to pay the defendants' attorneys' fees. We affirm.

PROCEEDINGS BELOW

EarleB. O'Neill("O'Neill")—throughhisMichigan attorneys, the Jaques Admiralty Law Firm,

P.C.—filed a civil suit under the Jones Act against a multitude of defendants asserting that he had

suffered hearing loss as a result of a lifetime as a seaman. The suit was filed on September 16, 1994,

in the Southern District of Texas, Galveston Division. On September 16, 1994, the district court

entered an order for a Rule 16 conference to be held on January 4, 1995. In that order, the district

court instructed the parties to meet and prepare a joint report of meeting and a joint discovery/case

management plan. The order specifically warned the parties that their failure to comply with the

order could result in the dismissal of the suit.

On December 8, 1994, the district court heard the motions of several of the defendants for

a more definite statement. As a result of this hearing, the district court ordered the plaintiff to

provide detailsregarding his current residence, the basisfor jurisdiction for each defendant, the dates

of employment for each defendant, and the specific vessels upon which he had served.
 

1Mr. Jaques is well known to this court. He operates the Jaques Admiralty Law Firm in

Detroit, Michigan. Through telemarketing efforts he successfully attracts a high volume of clients

for whom he files cases in admiralty. Unfortunately, Mr. Jaques seems to devote more attention

to acquiring cases than processing them. 

On January 4, 1995, the district court proceeded wi th the Rule 16 conference. At that

conference, the Jaques Law Firm wasrepresented by local counsel, Charles Reed. The district court

questioned Reed with respect to venue in the Southern District of Texas. Reed asserted that O'Neill

had been a seaman from 1944 to 1980 and had frequently made stops at Texas City and Galveston.

Reed was unaware of O'Neill's exact place of residence, other than that it was somewhere in

California. The district court stated its displeasure with the filing of the case in the Southern District

of Texas, calling the filing blatant forum shopping. The district court stated that the case would be

"dismissed without prejudice and the plaintiff will pay the costs of every attorney appearing in the

case for the reason that this case is gro ssly improperly filed under Rule 11 in the applicable venue

considerations." Two days later, on January 6, 1995, the district court entered the order of dismissal.

In the written order, the district court did not mention Fed.R.Civ.P. 11, but dismissed the suit without

prejudice pursuant to Fed.R.Civ.P. 37 and assessed the costs of the defendants' attorneys' fees to

O'Neill's counsel, Leonard Jaques ("Jaques").1 The assessment of attorneys' fees was also made

pursuant to Rule 37. O'Neill filed a notice of appeal from this order.

DISCUSSION

 O'Neill and his attorney assert that the district court abused its discretion in dismissing this

action and assessing attorneys' fees against Jaques. O'Neill and Jaques assert that the district court's

actions were sanctions for violations of Rule 11 as indicated from the transcript of the Rule 16

conference. However, in its written order dismissing the case and assessing costs, the district court

specifically stated that the action was taken pursuant to Rule 37. This apparent conflict does not

concern us because to the extent that the district court's statements from the bench conflict with its

formalfindings and conclusions oflaw, we need not consider them. E.E.O.C. v. Exxon Shipping Co.,

745 F.2d 967, 974 (5thCir.1984). Consequently, we will review the district court's order made under

Rule 37.
DISMISSAL WITHOUT PREJUDICE

Dismissalsmade pursuant to Rule 37 for failure to complywith discoveryorders are reviewed

by this court under the abuse of discretion standard. Morton v. Harris, 628 F.2d 438, 440 (5th Cir.

Unit B 1980), cert. denied sub nom. Morton v. Schweiker, 450 U.S. 1044, 101 S.Ct. 1766, 68

L.Ed.2d 243 (1981). "This Circuit will not interfere with a lower court's dismissal of an action for

failure to comply with discovery orders unlessimportant historical findings are clearly erroneous or,

by imposition of sanctions which are not just, there has been an abuse of discretion." Id. (citing

Marshall v. Segona, 621 F.2d 763, 766-67 (5th Cir.1980)).

In the order of conference for January 4, 1995, the district court instructed that "[a]fter the

parties meet as required by Fed.R.Civ.P. Rule 26(f), counsel shall prepare and file not less than 10

days before the conference a jo int report of meeting and a joint discovery/case management plan

containing the informationrequired onthe attached form." The order specifically stated that "[f]ailure

to comply with this order may result in sanctions, including dismissal of the action and assessment

of fees and costs." In light of this express warning, O'Neill's assertion that "[t]he record is devoid of

notice to Plaintiff or his counsel that the District Court was considering imposition of any sanction,

much less the ultimate sanction of dismissal[ ]" is at the very least frivolous, and could possibly be

considered as an attempt to mislead this court in its review of the lower court's actions in this case.

Rule 37 provides, in pertinent part:

Failure to Make Disclosure or Cooperate in Discovery: Sanctions

(b)(2) Sanctions in Court in Which Action is Pending ... [I]f a party fails to obey an order

entered under Rule 26(f), the court in which the action is pending may make such orders in

regard to failure as are just, and among others the following:

 * * * * * *

(C) An order ... dismissing the action or proceeding or any part thereof ...

 * * * * * *

In lieu of any of the foregoing orders or in addition thereto, the court shall

require the party failing to obey the order or the attorney advising that party or both

to pay the reasonable expenses, including attorney'sfees, caused by the failure, unless

the court finds that the failure was substantially justified or that other circumstances

make an award of expenses unjust.
 

2During the Rule 16 scheduling conference conducted on January 4, 1995, the district court

posed the following question to plaintiff's counsel, who was appearing on behalf of Jaques':

The court: First of all, do you know, sir, based on your communication with

primary counsel in this case why no meeting has been conducted to

undertake the Rule 26 obligations that are mandatory in litigation before

this Court? 

(g) Failure to Participate in the Framing of a Discovery Plan. If a party or a party's

attorney fails to participate in good-faith in the development and submission of a

proposed discovery plan as required by Rule 26(f), the court may, after an

opportunity for hearing, require such party or attorney to pay to any other party the

reasonable expenses, including attorney's fees, caused by the failure.

Fed.R.Civ.P. 37.

In light of the court's Rule 26(f) discovery order and O'Neill's failure to comply with that

order, it is clear that the district court did not abuse its discretion when it followed the plain language

of Rule 37 and dismissed O'Neill's action. See McLeod, Alexander, Powel &Apffel, P.C. v. Quarles,

894 F.2d 1482 (5th Cir.1990) (defendant's failure to comply with court's discovery order justified

sanction of dismissal under Rule 37).

ATTORNEYS' FEES

Rule 37(b) allowsthe imposition offees and costs against the "party failing to obey the order

or the attorney advising that party or both." The imposition of attorneys' fees as a sanction is

reviewed for abuse of discretion. American Airlines, Inc. v. Allied Pilots Ass'n, 968 F.2d 523, 529

(5th Cir.1992). Additionally, courts have shown an increased willingness to assess fees and costs

against only the attorney, especially where there is no evidence that the client was at fault. Shipes

v. Trinity Indus., 987 F.2d 311, 323 (5th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 548, 126 L.Ed.2d

450 (1993).

It is clear that Jaques was on notice that his failure to comply with the court's discovery

orders could result in the imposition of fees and costs, and there is no evidence that O'Neill was

remotely at fault forJaques'failure to complywith the court's express orders. Furthermore, pursuant

to the procedural requirements of Rule 37, Jaques' was provided with an opportunity to be heard

concerning hisfailure to complywith the court's discovery order prior to being sanctioned.2 A review

of the district court's order imposing sanctionsindicatesthat Jaques either refused to comply with or
completely ignored the district court's orders ordering Jaques to: (1) prepare and file a joint report

for a discovery and case management plan, and (2) attend the Rule 16 scheduling conference held on

January 4, 1995. Jaques' blatant disregard of the district court's express orders is the type of conduct

which Rule 37 sanctions were designed to address. The sanctions imposed on Jaques were severe,

but we cannot say that the district court abused its discretion when it followed the plain language of

Rule 37 and sanctioned Jaques.

CONCLUSION

Having considered O'Neill's additional points of error and finding that they have no merit, we

hold that the district court did not abuse its discretion when it dismissed this action and imposed

attorney's fees on Jaques. AFFIRMED.