     Case: 09-30826     Document: 00511045813          Page: 1    Date Filed: 03/09/2010




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

                                                  FILED
                                                                            March 9, 2010

                                     No. 09-30826                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



BRETT CHISESI

                                                   Plaintiff-Appellant
v.

AUTO CLUB FAMILY INSURANCE COMPANY

                                                   Defendant-Appellee




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:08-CV-3707


Before JONES, Chief Judge, and DAVIS and WIENER, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellant Brett Chisesi appeals the dismissal of his claims for
repeated violation of the district court’s discovery orders. We affirm and impose
sanctions against the appellant.
                                   I. BACKGROUND
        In August 2007, Chisesi filed this case asserting claims against his insurer
under his homeowner’s policy arising out of Hurricane Katrina. The case was


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-30826

removed to federal court. During discovery, the plaintiff failed to comply with
the defendant’s document requests. After several months, the defendant sought
an order to compel discovery, which the district court granted in May 2009.
Chisesi failed to comply with that order. In response, the defendant filed a
motion for sanctions, contempt, attorney’s fees, and costs. The magistrate judge
held a hearing on that motion in mid-June, issued a second discovery order, and
instructed Chisesi and his counsel to comply immediately with the order. The
court specifically warned them that failure to comply would result in dismissal
of the case. In addition, the court imposed a sanction of $300. At this hearing,
Chisesi conceded that the fault for the delay in compliance was his and that he
had not obtained all of the requested documents. In response to a question by
the magistrate judge, he stated that he understood his obligations.
      In July 2007, after Chisesi failed to turn over any of the requested
documents or pay the sanction, the defendant renewed its earlier contempt
motion. At a late-July hearing on this motion (three weeks before the scheduled
pre-trial conference and five weeks before trial), Chisesi’s attorney stated that
his client had not turned over any of the requested documents to him. Chisesi
told the court that he was unsure of his obligations due to poor communication
with his attorney and his lack of understanding of the legal system.              He
admitted that he had not gathered or turned over the requested documents. The
magistrate judge observed that, in his years of service, he had never “had anyone
disregard my orders like you did in this case.”
      The magistrate judge filed a report recommending that the case be
dismissed with prejudice for failure to participate in discovery and violation of
the court’s orders. Chisesi objected, blaming his counsel for his non-compliance.
The district court rejected this contention on the grounds that it was clearly
contradicted by Chisesi’s own actions and statements at the two hearings. The
court adopted the magistrate’s report and recommendations and, pursuant to

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                                  No. 09-30826

Fed. R. Civ. P. 37(b)(2)(A) (sanctions for failure to obey a discovery order),
dismissed Chisesi’s case with prejudice.
                               II. DISCUSSION
      We review dismissal under Rule 37(b)(2) for abuse of discretion. F.D.I.C.
v. Conner, 20 F.3d 1376, 1384 (5th Cir. 1994). Dismissal for violation of a
discovery order is justified when (1) “the refusal to comply results from
willfulness or bad faith and is accompanied by a clear record of delay or
contumacious conduct”; (2) the violation of the discovery order is attributable to
the party instead of the attorney; (3) the violation substantially prejudices the
opposing party; and (4) no lesser sanction would substantially achieve the
desired deterrent affect. Id. at 1380–81. We address each element in turn.
      First, willfulness is demonstrated by Chisesi’s failure to comply with the
court’s discovery order even after he was personally instructed to do so by the
magistrate judge and stated that he understood what was required of him. That
there was delay and contumacious conduct is apparent from the record. Second,
Chisesi conceded at least twice that he, not his attorney, was at fault for the
violations of the court’s discovery orders. Third, the defendant was undoubtedly
prejudiced. It was denied any discovery for months, was prejudiced in its ability
to prepare for trial, and was forced to spend time and money attempting to
coerce discovery. Fourth and finally, lesser sanctions in fact proved ineffective.
Accordingly, dismissal was not an abuse of the district court’s discretion.
      Finally, we consider the appellee’s motion for sanctions pursuant Fed. R.
App. P. 38.   See also 28 U.S.C. § 1912 (authorizing damages and costs on
affirmance). That rule authorizes this court to award damages and costs to an
appellee where an appeal is frivolous. The party to be sanctioned must have
notice and an opportunity to respond.       The defendant-appellee moved for
sanctions, putting Chisesi on notice. Chisesi, given the opportunity, declined to
respond.

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                                   No. 09-30826

      Our review of the record satisfies us that this appeal is wholly without
merit. The law is clear that willful violation of a district court’s discovery orders
give that court discretion to impose sanctions, including dismissal.       Not only
does the appellant fail to fairly address the substance of the district court’s
findings, but his briefing before this court demonstrates a pointed disrespect for
“the limited resources of the judicial system.” Stearman v. Comm'r, 436 F.3d
533, 540 (5th Cir. 2006). Wild accusations that a routine insurance dispute is
motivated by nefarious corporate motives and extended, irrelevant discussion of
etymology and Chaucer have no place in a brief to this court. We find that this
appeal is both frivolous and vexatious and therefore impose sanctions in the
amount of $2,500.
                               III. CONCLUSION
      We affirm the district court’s dismissal of Chisesi’s claims and impose
$2,500 in sanctions against Chisesi for pursuing this frivolous appeal.




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