IN RE URETHANE ANTITRUST LITIGATION, MDL No. 1616 This Document Relates to the following Polyether Polyol Cases Carpenter Co., et al.
BASF SE, et al., and Woodbridge Foam Corporation, et al.
BASF SE, et al., and Dash Multi-Corp, Inc., et al. BASF SE, et al., v.
MEMORANDUM AND ORDER
John W. Lungstrum John W. Lungstrum United States District Judge
This matter comes before the Court on defendant Dow Chemical Company’s motion to dismiss (Doc. # 2955). Specifically, defendant seeks dismissal of all claims brought by the Carpenter, Woodbridge, and Vita plaintiff groups, on the basis that certain former or current executives for those parties invoked the Fifth Amendment’s privilege against self-incrimination and refused to give deposition testimony. For the reasons set forth below, the motion is denied.
1. The Court first addresses the authority by which defendant urges this Court to dismiss the claims. Defendant invokes Fed.R.Civ.P. 37 as one basis for its motion, but it essentially cites the rule in passing, without providing any analysis under the text of that rule. As plaintiffs point out, Rule 37 authorizes dismissal as a possible sanction for the failure to obey a Court’s order concerning discovery, see Fed. R. Civ. P. 37(b)(2)(A)(v), and defendant has not identified any such order that plaintiffs have violated concerning the invocation of this privilege. Indeed, defendant utterly fails to address this shortcoming in its reply brief. Moreover, the cases cited by defendant that included dismissal under Rule 37 involved non-compliance with court orders, and defendant has not provided any authority suggesting that a district court may order dismissal under Rule 37 in the absence of such non-compliance. Accordingly, the Court concludes that there is no basis for dismissal under Rule 37 in this case.
2. Defendant also seeks dismissal pursuant to Fed.R.Civ.P. 41(b), which provides that a defendant may move to dismiss “[i]f the plaintiff fails to prosecute or to comply with these rules or a court order.” See Id . The Court agrees with plaintiffs, however, that Rule 41(b) does not provide a basis for dismissal here. Defendant has cited various cases in which courts dismissed claims brought by persons who invoked the Fifth Amendment privilege, but those dismissals were not based on Rule 41(b).
Defendant seeks dismissal under this rule’s “failure to prosecute” prong; defendant has not explained, however, how plaintiffs caused any particular delay, failed to pursue their claims, or acted improperly with respect to the witnesses’ invocation of the privilege. See, e.g., 9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2369 (3d ed. 2008) (in general, federal courts have allowed a dismissal with prejudice under Rule 41(b) only as a result of delay or contumacious conduct by the plaintiff).
Defendant does argue that the invocation of the privilege by plaintiffs’ former and current executives should be imputed to plaintiffs and thus be considered conduct by plaintiffs themselves, by which plaintiffs refused to provide discovery to defendant. Defendant has not shown, however, that plaintiffs or the witnesses violated any rule or court order by invoking the privilege; thus, there is no basis to conclude that plaintiffs acted improperly or in a dilatory manner such that Rule 41(b) might apply. Simply put, the rule does not fit here.
Moreover, even if the Court did analyze defendant’s motion under Rule 41(b), it would not order dismissal in this case. The Tenth Circuit set forth the following non-exhaustive list of factors that a district court should consider in determining whether to dismiss claims with prejudice under Rule 41(b):
(1) the degree of actual prejudice to the other party; (2) the amount of interference with the judicial process; (3) the litigant’s culpability; (4) whether the court warned the party in advance that dismissal would be a likely sanction for noncompliance; and (5) the efficacy of lesser sanctions.
See Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1143 (10th Cir. 2007) (citing Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992)). The Court concludes that these factors do not weigh in favor of dismissal here.
Defendant relies primarily on the great prejudice that it alleges results from its inability to obtain testimony from the witnesses who invoked the privilege. Defendant has not demonstrated, however, that it could not have obtained such information from other witnesses associated with these plaintiffs. Most significantly, all of these plaintiffs provided depositions pursuant to Fed.R.Civ.P. 30(b)(6), and they were thus obliged to seek information and prepare to provide testimony on topics designated by defendant. Defendant argues that in some cases, the Rule 30(b)(6) witnesses were unable to consult with the particular witnesses who invoked the privilege and that they otherwise lacked sufficient knowledge. Defendant did not see fit, however, to challenge the adequacy of those corporate depositions by means of a timely motion to compel. Thus, defendant may not be heard to complain that it had no means to discover particular information, and the Court therefore does not agree that defendant suffered substantial prejudice from the invocations of the privilege here.
With respect to the second Ehrenhaus factor, defendant repeats its claim that it was denied relevant discovery. Defendant has not shown, however, that those invocations have interfered with the Court’s docket or the judicial process in general.
Defendant has also failed to show any culpability or improper conduct by plaintiffs themselves with respect to the invocations of the privilege. Defendant notes that an executive’s invocation may be imputed to a corporate party with whom he has a close relationship, for purposes of allowing an adverse inference at trial against the corporation. Such imputation occurs in an entirely different context, however, and defendant has failed to provide any authority for allowing such an imputation in this context of determining a party’s culpability for purposes of the dismissal of that party’s claims as a sanction for failure to prosecute. Moreover, even if such imputation were permitted in this context, defendant has neglected to discuss the relevant test previously applied by this Court, and therefore defendant has not shown that such imputation would be proper in the case of these particular witnesses. See In re Urethane Antitrust Litig., 2013 WL 100250, at *1 (D. Kan. Jan. 8, 2013) (Lungstrum, J.) (Court applies Libutti factors in ruling on the admissibility of a non-party’s Fifth Amendment invocation).
In arguing that the fourth factor supports dismissal, defendant argues that plaintiffs had notice of the possibility of dismissal from defendant’s threats to file and actual filing of the instant motion. The Court, however, has not suggested to plaintiffs that they may face dismissal as a result of these witnesses’ invocations of the privilege. Therefore, this factor weighs in plaintiffs’ favor.
Finally, defendant argues that no lesser sanction can make up for the discovery that these witnesses refused to provide. As discussed above, however, the Court is not persuaded that defendant did not have the opportunity to obtain such information from plaintiffs themselves. Moreover, the more usual “sanction” for a party’s executive’s invocation of the privilege would be the admission of the invocation into evidence, in support of an ...