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Services os'Mead Data Central, Inc.
<br /> PAGE 18
<br /> 1991 U.S. App. LEXIS 30233, *43
<br /> 960(a) , 96040) , (b) 7 and (e)'. Hehdler I at 93. Thus, California state
<br /> Officials who entered onto plalntif fs ' land did so under the authority granted
<br /> :
<br /> 'It follows that their activities within the scope of the order are
<br /> attributable to� the Federal GolVernment for purposes of takings law just as are
<br /> the =activities of EPA itself. As the Court in Loretto observed, "Cal permanent
<br /> physical occupation authorized'. by a government] is taking without re
<br /> I 'it, regard to
<br /> whether the [go-yernmentll or instead a party author,.Zed by the lqovernmentl, is
<br /> 'the occupant." .458 U.S. at 4321n.9. In Loretto the authorizing
<br /> _government was a
<br /> ,state,,,, rath?,r than the federalilgaVernment, but the pfinciple remains the same.
<br /> There is no question but � Californi
<br /> authority of the 1983 Order, t a officials were acting under the
<br /> a
<br /> u a_ in. pursuance of the State's formal Cooperative
<br /> Agreement with the, Government to assist, in carrying out Superfund activities,
<br /> ihtludino this one, and with substantial funding from the Government. That the
<br /> State had authority to act :ort. its own initiative, as the. Government contends.
<br /> IS
<br /> Immaterial. It is no defense,. .*441 to a 'charoe of auth0rizinq someone to
<br /> violate anotherl.s t rights't that the perpetrator mi : n i
<br /> might have ..done a S a .. his own
<br /> Ttle BiAtoVery Rests and OOEnsuinq Dismissal
<br /> i.n light WO turn now,
<br /> t: of f law applicable to tht issues—
<br /> d ,just 0..is:cussed:*, to
<br /> theof ;question 'whether plaintiffs should be sanctioned� for -c tbelr ohduct of the
<br /> (21 case, and Whether dismissal with prejudice is a Proper sanction. under the
<br /> circumstances. A plaintiff w-ad a proven. meritorious claim may: have: that claim
<br /> taken away If the plaintiff's conduct — at* moreaccurately tht :C011d.UCt of the
<br /> lawyer for the plaintiff -- jsJso offensive to the court and so violative of
<br /> established norms as to justify this severe a punishment. See Nat'l Hockey
<br /> Leaque V. Metro. Hocked 'Club, �427 U—S. :639 (1976) ; see also
<br /> ul.e. 37.
<br /> The con.trov.—er's.y. ..overthe adequacy of plaintiffs ' responsest v
<br /> controversy...
<br /> Government's prapaujided interroqatories turned on whether the answers:: provided
<br /> "the essential factual bases, for plaintiffs' claims, information neCtSSarY. , for
<br /> defendant to pripare a defense --,arW to pursue meaningful discovery.." Claims! :Court
<br /> Order. April 30.': 19.87. Following the extended discovery period, dueing, which the
<br /> parties [*451 fOUPt over whether: various interrogatories
<br /> were proper an
<br /> whether aftS 0.ft-2ihd.Uld be :compehed.,, the Government moved the court to dlsiiss�
<br /> Hendler's cOmpla.int under Rulk. 1-37. The Claims Curtis Order of A 0.1 1987
<br /> April
<br /> stated that P.1400tIffs ' supplemental responses had failed tore"and. full :
<br /> y t0
<br /> the Government's
<br /> : . . ..i..pt. qrrogoa tori es� and gave
<br /> plaintiffs f0urteen. days
<br /> .y
<br /> .s
<br /> to
<br /> cat The caurtwanted that. fellate to c mply would result in dJAxitsji
<br /> ofthe
<br /> caseHen Er tioelV r9:Sp. . ed, flat the Government deemed the resoonle
<br /> inadequate. In i,tt Deeembe,t :1-111
<br /> 1989 decision, He dler II.,, the. ;04-rt arante.d thg
<br /> 6104e.romert !..s lotion. and d reju .7
<br /> dismissed the ease with dice..
<br /> The court d. e.e. hied the plaintafs to have acted willfully t. responding
<br /> ". , ' In. no .
<br /> f.u.1.1y. and. precisely to the Government's: :1Interrogatories. ":All :of theinformation
<br /> the.... government sVeK.Si is W-1-thin the. exclusive knowledge and possession Of
<br /> plaintiffs, only�':plaintiffs know how the EPA activities on their land havel
<br /> depiyed them of,
<br /> any economically
<br /> viable use of the su.blec.t
<br /> property.,,. yet thgy
<br /> T
<br /> fu ...e. to tel.IdOfehaant and the court." Hendler 11 at 11 {ifootnate :00.1 t
<br /> The court: noted that Renaie.r:,s defense to the Government'
<br /> -S motion to C*461
<br /> LEX1S*iqEX1
<br /> S0LEX1S4*NEX- 1Se
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