     Case: 10-31082     Document: 00511695455         Page: 1     Date Filed: 12/14/2011




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

                                                                            FILED
                                                                        December 14, 2011
                                      No. 10-31082
                                                                           Lyle W. Cayce
                                                                                Clerk
SPSL OPOBO LIBERIA, INCORPORATED,

                                                         Plaintiff - Appellant
v.

MARINE WORLDWIDE SERVICES, INCORPORATED;
ALAN L. MOORE; RAY O. GROOT,

                                                         Defendants - Appellees


SPSL OPOBO LIBERIA, INCORPORATED,
                                                         Plaintiff - Appellant

v.

AAA HOLDINGS, L.L.C.

                                                         Defendant - Appellee


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:07-CV-3355


Before JONES, Chief Judge, and STEWART and SOUTHWICK, Circuit
Judges.

EDITH H. JONES, Chief Judge:*

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                     No. 10-31082

      The district court dismissed the claims of Appellant (“SPSL”) in this case
for its contumacious failure to make available for deposition the company’s chief
executive Henry MacPepple. The court rendered its findings and conclusions by
citing and applying this court's four-part guidelines applicable to the drastic
remedy of dismissal. FED. R. CIV. P. 37(b); Batson v. Neal Spelce Assocs.,
765 F.2d 511, 514 (5th Cir. 1985). Reviewing the court’s factual findings for
clear error and its ultimate decision for an abuse of discretion, id., we AFFIRM.
      The complex background to this multiparty fight over the alleged
conversion and subsequent sale of a marine barge is generally unnecessary to
our analysis.1 The original claim by SPSL against Marine Worldwide and two
individuals (collectively, “Marine Worldwide”) had been pending about two years
when AAA attempted to purchase the barge and was also sued in rem by SPSL.
The cases were consolidated for disposition. AAA moved for the deposition of
MacPepple in 2010. When SPSL refused to make him available, the court
ordered his appearance by telephone and video from Nigeria no later than
August 4. SPSL was unresponsive to the ensuing arrangements until August
3, when it wrote to the court asserting that because of “health reasons,”
MacPepple would not appear as ordered.              The magistrate judge, asked to
intervene, found this excuse unpersuasive and ordered that the deposition occur.
SPSL ignored this order.
      AAA moved for dismissal as a sanction pursuant to Rule 37(b), and
alternatively to exclude MacPepple’s testimony.               The Marine Worldwide
defendants joined the motion as to the latter remedy. On the basis of full

      1
          We note, however, that title to the barge was resolved in the separate appeal of
Marine Worldwide from other district court orders. See No. 11-30270, SPSL Opobo Liberia,
Inc., v. Marine Worldwide Svces, Inc., filed Sept. 30, 2011, unpublished

                                            2
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                                      No. 10-31082

briefing and oral argument, the court granted the motion to dismiss. The court
found that Appellant ignored two court orders compelling MacPepple’s
appearance and filed a “highly questionable,” unverifiable, not credible
statement by an alleged Nigerian doctor to excuse his absence. The court
concluded that Appellant caused Appellees severe prejudice because Appellant
had repeatedly identified MacPepple as the sole corporate witness who had
knowledge of events underlying the lawsuit.2 Finally, the court found that less
severe sanctions would not remedy the prejudice suffered by Appellees and the
gross disregard of the court’s orders.
       On appeal, SPSL takes issue with the court’s factual finding that it
violated not one but two court orders. There is no clear error. Not only were two
orders issued against MacPepple, but the court found Appellant’s proffered
medical excuse utterly incredible, a fact that showed further disrespect for the
court. The Appellant next argues that the court abused its discretion by failing
to give prior notice of its intent to dismiss and refusing to apply less severe
sanctions. Prior notice was hardly necessary because AAA’s motion and briefing
clearly requested dismissal of the claims against AAA, and SPSL had ample
opportunity to defend its misconduct. As for lesser sanctions, the court was
offered the alternative of excluding MacPepple’s (or any other corporate
representative’s) testimony.        But the court understood correctly, based on
Appellant's own representations, that such testimony was the key to its case as


       2
            That SPSL attempted after the fact to offer other potential witnesses was, in the
court’s ruling on motion for reconsideration, disingenuous compared with the consistency of
its earlier statements. In its opposition to the motion for reconsideration, Marine Worldwide
stated that “[SPSL] cannot establish that a ‘second chance’ would alter the outcome of the
case . . .” and referred to a summary judgment motion Marine Worldwide was about to file in
the barge title dispute.

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                                  No. 10-31082

plaintiff.   The plaintiff’s refusal to produce its “star” witness under these
circumstances inflicted severe prejudice on Appellees’ preparation. Just as
clearly, the only likely alternative remedy would have required plaintiff to “try”
a case without this witness, essentially dooming its presentation; such a result
would have severely inflicted even more cost and delay on the Appellees. The
court did not abuse its discretion.
      The only potentially troubling aspect of this appeal is SPSL’s contention
that, given Marine Worldwide’s limited approach to the sanctions motion in the
district court and its failure to file an appellee's brief in this court, we should
reverse the dismissal of SPSL’s in personam claims against those Appellees. We
decline to do so. First, nothing in the federal rules required the district court to
bifurcate SPSL’s claims against the two sets of defendants when it ordered Rule
37(b) sanctions. Second, MacPepple’s refusal to make himself available as a
witness for deposition, even one taken remotely for his convenience from Nigeria,
undercut the likelihood that he could or would make a case against either set of
defendants. Third, Appellees are not required to file an appellate brief as a
condition of our affirmance. See FED. R. APP. P. 31(a)(1). In sum, we find no
abuse of discretion under the circumstances of this case.
      For these reasons, the judgment of dismissal is AFFIRMED.




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