     Case: 09-20727     Document: 00511262971          Page: 1    Date Filed: 10/14/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                          October 14, 2010

                                     No. 09-20727                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



ALEXANDER McGREGOR HUNTING,

                                                   Plaintiff-Appellant
v.

BASF CORPORATION,

                                                   Defendant-Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                                  (4:08-CV-3651)


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellant Alexander M. Hunting (“Hunting”) appeals the district
court’s order dismissing his case against Defendant-Appellee BASF Corporation
(“BASF”). Because we find no abuse of discretion, we AFFIRM.
                                   I. BACKGROUND
        On or about October 17, 2006, Hunting impermissibly walked onto BASF’s
property in order to inquire about securing employment with BASF. Hunting


        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
   Case: 09-20727      Document: 00511262971         Page: 2     Date Filed: 10/14/2010

                                      No. 09-20727

proceeded through unmanned gates of the south Texas facility towards the
administrative building on the premises. Drawing the suspicion of the facility’s
security personnel by, inter alia, allegedly videotaping the premises after hours,
BASF’s security detained Hunting. After a short while, BASF’s security
summoned police to the facility, at which point Hunting was arrested on a
charge of criminal trespass, allegedly at the direction of BASF’s security
personnel.    Hunting was later acquitted of this charge.              In 2008, Hunting
initiated the instant litigation alleging claims of false imprisonment and
malicious prosecution pursuant to his 2006 arrest. The matter proceeded to
discovery whereupon the facts relevant to this discussion occur.
       On February 24, 2009, the parties entered into a “Joint Discovery/Case
Management Plan” (“the Plan”) with the district court. The Plan indicated that
Hunting anticipated calling only one additional party by April 1, 2009, and that
BASF anticipated taking Hunting’s deposition as soon as Hunting responded to
written discovery requests. The Plan contemplated the completion of discovery
by November 1, 2009, and anticipated a jury trial of twelve hours. On June 15,
2009, Hunting’s counsel, Derek Obialo, moved the district court to withdraw his
representation. On June 30, 2009, the district court held oral argument on
Obialo’s motion.      On July 6, 2009, BASF sent correspondence to Obialo
requesting a list of dates Hunting was available for his deposition by BASF. The
following day, Obialo indicated he forwarded BASF’s letter to his client. On July
8, 2009, the district court granted Obialo’s motion.
       By September 2009, Hunting had not yet appeared for his deposition, and
on September 11, 2009, BASF moved the district court to compel his deposition
and to supplement written discovery responses.1 Four days following BASF’s


       1
        In addition to repeated attempts by BASF’s counsel to secure Hunting’s deposition
through his counsel, BASF’s motion to compel also cites attempts to communicate directly with
Hunting, following the withdrawal of counsel; a deficient response to BASF’s attempts to

                                             2
   Case: 09-20727     Document: 00511262971      Page: 3   Date Filed: 10/14/2010

                                   No. 09-20727

motion, the district court entered an order expediting Hunting’s response to
BASF’s motion. Hunting timely responded to the district court’s order for an
expedited response.
      On September 29, 2009, the district court heard from both parties as to
BASF’s motion to compel. The district court ordered Hunting to contact BASF’s
counsel by October 6, 2009, to schedule his deposition which, per the district
court’s instructions, was to take place between October 6, 2009, and October 13,
2009. Hunting failed to contact BASF before October 6, 2009. On October 8,
2009, BASF moved the district court for dismissal. BASF’s moving papers
documented BASF’s repeated attempts to contact Hunting and schedule his
deposition. Counsel for BASF also listed other allegations about Hunting’s
unresponsive, and at worst obstructive actions.
      On October 16, 2009, the district court granted BASF’s motion for
dismissal without prejudice, instructed Hunting that he was not to contact BASF
or their counsel, and that his failure to comply with the terms of the order of
dismissal would result in his arrest and/or incarceration. On October 23, 2009,
Hunting filed with the district court a motion to reconsider the order of
dismissal. He attempted to personally serve BASF’s counsel at their Houston
offices, in direct violation of the district court’s October 16, 2009 order. On or
about October 23, 2009, the district court dismissed Hunting’s motion for
reconsideration. This appeal followed.
      On April 8, 2010, after the submission of Hunting’s merits brief contesting
the district court’s dismissal, and his submission of his record excerpts, BASF
filed a motion to strike fabricated evidence from the appeal. In its moving
papers, BASF explained that Hunting’s record excerpts contained a piece of



notice Hunting’s deposition; Hunting’s incomplete discovery responses in the form of
statements regarding his alleged damages and, an Internal Revenue “4506 Form” Hunting
failed to return.

                                         3
     Case: 09-20727   Document: 00511262971      Page: 4    Date Filed: 10/14/2010

                                    No. 09-20727

fabricated evidence–namely an email message from BASF to Hunting that
purportedly scheduled his deposition for October 7, 2009. BASF also complained
that Hunting failed to serve the record excerpts upon BASF’s counsel.
                                  II. ANALYSIS
A.      Standard of Review
        This court reviews dismissal of an action for failure to prosecute or failure
to comply with a court order for an abuse of discretion. Kabbe v. Rotan Mosle,
Inc., 752 F.2d 1083, 1084-85 (5th Cir. 1985). This court employs the same
standard upon dismissal of an action as a sanction for an abuse of the discovery
process. Coane v. Ferrar Pan Candy Co., 898 F.2d 1030, 1031 (5th Cir. 1990).
B.      Applicable Law
        The Federal Rules of Civil Procedure condone a district court’s dismissal
of an action and contemplate such a measure when a party fails to appear for a
properly noticed deposition, fails to comply with a discovery order, fails to
prosecute his case, or fails to comply with an order of the district court. F ED. R.
C IV. P. 37(b)(2)(A)(v); see also Coane, 898 F.2d 1032. As we have stated many
times before, “[t]his [court] will not interfere with a lower court’s dismissal of an
action for failure to comply with discovery orders unless important historical
findings are clearly erroneous or, by imposition of sanctions which are not just,
there has been an abuse of discretion.” O’Neill v. AGWI Lines, 74 F.3d 93, 95
(5th Cir. 1996)(citations omitted).
C.      Hunting’s Appeal of the District Court’s Order of Dismissal.
        In light of the detailed record before us, this court has no reservations
about affirming the district court’s judgment of dismissal. The record reflects
Hunting repeatedly gamed the discovery process. For example, the Plan stated
that Hunting named only one other person beyond himself as an intended
deponent. Considering the totality of his complaint centers solely around his
impermissible entry onto BASF’s premises, we find persuasive BASF’s

                                          4
     Case: 09-20727   Document: 00511262971     Page: 5   Date Filed: 10/14/2010

                                   No. 09-20727

arguments—and the district court’s determination—that Hunting not only
frustrated the discovery process by his lack of cooperation in scheduling his
deposition, but that the entirety of his conduct was inappropriate. In light of the
nature of his conduct in the prosecution of his claim, we affirm the dismissal of
his complaint without prejudice.
D.      BASF’s Motion to Strike Fabricated Evidence; Motion for Summary
        Affirmance.
        On April 5, 2010, Hunting filed his record excerpts before this court but
without serving a copy of them on BASF. Within those record excerpts appears
to be a copy of an email from BASF to Hunting purporting to schedule Hunting’s
deposition for October 7, 2009. On April 8, 2010, while reviewing the court’s
electronic record, BASF noted the record excerpts and, specifically, the email in
question. BASF averred in its motion to strike fabricated evidence that the
Hunting email “was neither created nor sent by BASF’s counsel to Mr. Hunting”.
The motion was supported by an affidavit from BASF’s counsel of record. On
April 21, 2010, Hunting filed his response to BASF’s motion and denied its
contentions. That motion was carried with the case. Having carefully reviewed
the record excerpts, the record as a whole, and the arguments of the parties, we
grant BASF’s motion to strike Hunting’s record excerpts.
        BASF also filed a motion for summary affirmance. That motion is denied
as moot.
                               III. CONCLUSION
        For the reasons stated above, we find the district court did not abuse its
discretion in dismissing Hunting’s action and therefore its judgment of dismissal
without prejudice is AFFIRMED. Also, BASF’s motion to strike fabricated
evidence is GRANTED.        Lastly, BASF’s motion for summary affirmance is
DENIED as moot.



                                         5
