Legal Memorandum: Willful Non-compliance with an Order

Issue: Under federal rules, what must a court find in order to conclude that a party has willfully failed to comply with one of its orders?

Area of Law: Litigation & Procedure
Keywords: Default judgment; Willful failure to comply
Jurisdiction: Federal
Cited Cases: 752 So. 2d 540; 694 So. 2d 822; 613 So.2d 918; 240 F.2d 669; 547 P.2d 197; 788 F.2d 954; 513 So. 2d 1353
Cited Statutes: None
Date: 11/01/2005

In the case of Gill v. Stolow, 240 F.2d 669 (2d Cir. 1957), the trial court rendered a default judgment against the defendants in the plaintiff’s fraud and breach of warranty claim after one of the defendant partners failed to appear for deposition.  The partner was in Germany and he was called to be deposed in New York.  The discovery period of the litigation had been protracted over the course of several years.  While the plaintiff characterized the defendants’ actions as “a consistent course of obstruction for more than three years,” id. at 671, the court of appeals viewed that characterization as “overdrastic,” id.  Although the trial court has discretion over such matters, and despite the appellate court’s reluctance to interfere, the court of appeals held that “the penalty assessed is too drastic and the case must be returned,” because the facts would not “justify denial of a party’s fair day in court except upon a serious showing of willful default.”  Id. at 670.  Importantly, while there had been constant controversy during the litigation, even “violent wrangles,” id. there was no record of willfulness on the part of the partner, id.  In fact, after failing to appear for a deposition tentatively scheduled by the trial court for June 27th, the partner produced evidence, including medical evidence, that the reason for failing to appear was his bad health.  Id.  The showing of bona fide ill health, along with a subsequent genuine attempt to comply with the […]

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