The belated and incomplete attempt to make the discovery noted above by supplying answers on September 14, 1970, and moving on September 24, 1970, to further supplement the answers is inexcusable in view of the fact that the time for completion of discovery in this cause had passed and defendant VWOA had known of the setting of this cause on the accelerated civil trial docket for a long time.10 Rule 37 (d), F.R.Civ.P., provides in part that: "In lieu of any order [imposing sanctions] or in addition thereto, the court shall require the party failing to act or the attorney advising him or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust." Under that provision, an award of expenses and attorney's fees should also be made." It is therefore ADJUDGED that default judgment be, and it is hereby, entered against defendant Volkswagen of America, Inc., on the issue of liability only. In order that there be a complete record for disposition of this case on an appeal, the case will be tried before a jury on all issues with a separate verdict on liability and on damages. It is further ORDERED that plaintiff have and recover of the defendant Volkswagen of America, Inc., a reasonable sum for her fees and expenses, including attorney's fees for obtaining this order in a sum to be fixed by order of Court. KANSAS CITY, Mo., February 19, 1971. WILLIAM H. BECKER, Chief Judge. 1967); Trans World Airlines, Inc. v. Hughes, 332 F. 2d 602 (2d Cir. 1964); Hendricks v. Alcoa Steamship Co., 32 F.R.D. 169 (E.D. Pa. 1962); Textile Products v. Formaz Mfg. Co., 13 F.R.D. 302 (E.D. Mich. 1952); cf. Link v. Wabash R. Co., 370 U.S. 626, 82 S. Ct. 1386, 8 L.Ed2d 734 (1962); Pioche Mines Consolidated, Inc. v. Dolman, 333 F.2d 257 (9th Cir. 1964). Under these circumstances, it is said that a court has inherent power to enter default judgment for deliberate violation of an order or orders made under its rules. Societe Internationale Pour Participations Industrielles Et Commerciales, S.A. v. McGranery (D.D.C.) 14 F.R.D. 44. modified on other grounds, Societe Internationale Pour Partici pations Industrielles Et Commerciales, S.A. v. Brownell, 96 U.S. App. D.C. 232, 225 F. 2d 532, cert. denied 350 U.S. 937, 76 S. Ct. 302, 100 L.Ed. 818, reh. denied 350 U.S. 976, 76 S. Ct. 430, 100 L. Ed. 846; Mariott Homes, Inc. v. Hanson (W.D. Mo.) 50 F.R.D. 396. 10 The records of the Clerk of this Court show that on July 10, 1970, counsel for defendant Volkswagen of America, Inc., were sent a notice that a jury trial docket for civil cases would be held during the three weeks beginning September 28, 1970, and that this case might be on it. On August 27, 1970, the docket itself was sent to counsel, on which this case was listed to be tried during the jury docket. In Butler v. Pettigrew (C.A. 7) 409 F. 2d 1205, it was held that the trial court did not err on refusing a default judgment for failure fully to answer interrogatories in a case in which "Plaintiffs made no request of the court prior to trial to require defendants to fully answer or for any sanctions against defendants for their alleged neglect under Rule 37(b), (d) of the Federal Rules of Civil Procedure. Furthermore, there is little reason to suppose that plaintiff's failure to prove reliance was caused by insufficiency of the defendants' answers to the plaintiff's interrogatories of record." 409 F. 2d at 1207. In the case at bar, however, plaintiff moved to compel answers and has submitted two memoranda pointing out wherein defendant's answers are not satisfactory and will impede future discovery and the trial of this case. 11 The findings of willfulness and lack of diligence supporting the entry of default judgment would support the imposition of money sanctions under this part of the rule. According to the Advisory Committee notes, an express finding of "without substantial justification" is unnecessary to the imposition of such sanctions, although substantial justification in fact can defeat the sanctions. See 48 F.R.D. at 539. A lesser showing of fault appears to be necessary to the imposition of money sanctions. See Allied Artists Pictures Corp. v. Giroux (S.D.N.Y.) 50 F.R.D. 151, 14 FRServ 2d 522. APPENDIX X REPRINT: HEARING BEFORE SUBCOMMITTEES OF THE SELECT COMMITTEE ON SMALL BUSINESS, U.S. SENATE, "PLANNING, REGULATION, AND COMPETITION," 90TH CONGRESS, FIRST SESSION (JUNE 29, 1967) NOTE.-The following brief hearing initiated the Subcommittee on Monopoly's inquiry into the phenomena of corporate giantism, corporate secrecy, economic concentration, and related matters. Since supplies of this record have been exhausted for some time, it is deemed appropriate and useful to reprint it here.-Committee editor. PLANNING, REGULATION, AND COMPETITION HEARING BEFORE SUBCOMMITTEES OF THE SELECT COMMITTEE ON SMALL BUSINESS UNITED STATES SENATE NINETIETH CONGRESS FIRST SESSION A SEMINAR DISCUSSION OF THE QUESTION: "ARE PLANNING NEW INDUSTRIAL STATE?" JUNE 29, 1967 Printed for the use of the Select Committee on Small Business 83-411 O U.S. GOVERNMENT PRINTING OFFICE WASHINGTON: 1967 For sale by the Superintendent of Documents, U.S. Government Printing Office CONTENTS Galbraith, Dr. John Kenneth, Paul M. Warburg professor of economics, Turner, Hon. Donald F., Assistant Attorney General, Department of 4,31 17, 40 A. Letter and enclosure from John A. Rowntree, Attorney, Knoxille, 47 B. Letter and enclosure from Worth Rowley, Attorney, Washington, D.C., C. Article by Drs. Walter Adams and Joel B. Dirlam, entitled "Big Steel, 50 PLANNING, REGULATION, AND COMPETITION THURSDAY, JUNE 29, 1967 U.S. SENATE, SUBCOMMITTEE ON RETAILING, DISTRIBUTION, AND MARKETING PRACTICES, AND SUBCOMMITTEE ON MONOPOLY OF THE SELECT COMMITTEE ON SMALL BUSINESS, Washington, D.C. The subcommittees met, pursuant to notice, at 10:10 a.m., in room G-308, New Senate Office Building, Senator Wayne Morse, chairman of the Subcommittee on Retailing, Distribution, and Marketing Practices, and Senator Russell B. Long, acting chairman of the Subcommittee on Monopoly, presiding. Present: Senators Long, Morse, and Baker. Also present: Raymond D. Watts, associate general counsel of the full committee. Senator MORSE. The Subcommittee on Retailing, Distribution, and Marketing Practices and the Subcommittee on Monopoly meet this morning for a seminar discussion with some great Americans. We are going to discuss the subject, "Are Planning and Regulation Replacing Competition in the New Industrial State?" When Senator Smathers assumed the chairmanship of the Senate Small Business Committee this year, he made our first order of business very sensibly and appropriately, in my judgment—a broad gage inquiry into "The Status and Future of Small Business in the United States." Twelve days of public hearings were held before the full committee. Witnesses invited to present their views were men the committee deemed best qualified, by academic study, by personal experience, by public responsibility, or by a combination of those qualifications, to have a good claim to understanding of that very large subject. Opening the hearings, Chairman Smathers expressed the hope that they would lay a framework for further study by the committee and its subcommittees. Fulfillment of that hope begins today. This hearing is, in a sense, a continuation of the earlier hearings, because two of our witnesses also appeared there and the other two were invited but were unable, at the time, to attend. In another sense, today's session is a sprouting of some of the seeds planted in March and April, exactly as our chairman anticipated. At the earlier hearings, even though Professor Galbraith had been unable to accept our invitation to appear then, I inserted in the record one of the Reith lectures he had delivered over BBC last fall. And I asked both Chairman Dixon of the Federal Trade Commission and Assistant Attorney General Turner to comment. Mr. Turner did sub 1 |