|
Servl7s ,of Mead Data Central, InQ
<br /> __1 QYZI
<br /> A' U PAGE 21
<br /> 4 1991 10.S. App. LEXIS 30233, *51
<br /> by 'stating that they were not! developers, that they did not intend to develop
<br /> the property and that they simply planned to sell or lease the property., Id.
<br /> .ij
<br /> iOn appeal, :,the Government sought to support the Claims Court's decision to
<br /> sanction plaintiffs by arguij
<br /> ng that the facts requested in the interrogatories
<br /> were essential to the plaintiffs , claims, and unless substantiated, the court
<br /> could not conclude that they .constituted a taking. Quoting from the court's
<br /> dpi.nion: "If the evidence sho'W's the absence of a permanent taking, to decide
<br /> 4h4ther a temporary taking has occurred the court will need to know the
<br /> ciha-racter and expected duration of the government activity, and the degree of
<br /> interference with the private 1property," Hendler I at 97. The Government ,argued
<br /> that "on the record before itV the court found 'no hint of how defendant's
<br /> activities may" have affected [plaintiffs ' ] investment backed expectations., or
<br /> even if they had any. See Nil ndle:r 1. at 97.
<br /> The difficulty withthis 1*521: argument is that it assumes
<br /> :i that to'
<br /> establish a taking of -property under the Fifth Amendment it 11 necessary
<br /> S T that
<br /> the; owner of the locus, in' quol.lestaDlish investment backed expectations, and that
<br /> anything less than a taking of all economically viable use of the land is
<br /> ':temporary' and not entitled to just compensation. While those are the buzz
<br /> words dominating the current literature of takings law, they :relate to the
<br /> jurisprudence of regulatory tzikinp,, and have no,
<br /> relevance when the cause of
<br /> action is premised on an actuil phyiical occupancy. As Loretto v.
<br /> Teleprompter
<br /> Manhattan CATV-Corp. , 458 U.S! 419, 437 (1982) , demonstrates., the extent of
<br /> :05cupation, was only relevant to compensation, not liability. a.
<br /> We hav9 before us, then, auflismissa1 sanction bated At least in part on an
<br /> alleged recalcitrance which goes at most to proving the quantum of damaq
<br /> U es
<br /> resulting fromxthe physical :taking. Plaintiffs had satisfactorily met their
<br /> burden of proof- an the liability issue -- that there indeed had been a permanent
<br /> physical occupation by. the GoVernment. If plaintiffs failed to aggressively
<br /> .develop a strong factual, bas for calculation of n that
<br /> is Just compe sation
<br /> their right -- the'
<br /> E,*533 Was th' are free to choose a course of action which may
<br /> to rn: but not, to maximize their recovery. Since the plaintiffs repeatedly .
<br /> indicated their' willin
<br /> _qness to be limited to their answers, the Government'.
<br /> certalnly cannot be said to bi''pre;-udiced by such4 litiqatiort. tactic.
<br /> 211., The Sanction of Vi..smissdl
<br /> A Rule 317 dismissal Is a: harsh remedy, which should be reserved for =ly the
<br /> mast severe abuses of the discovery process. Sotl#t# ThV1 v. Rogers, 357,.u.s.
<br /> 197 Z12, (dismissal appropriate only. for cases of willfulness., bid f.' ith.? or
<br /> f4ult of the petitioner) ; Nat'l Hockey League v. Metro, Hatkey Club 427 U.S. at
<br /> - -ant
<br /> iii9i i (dismissal appropriate where respondents demonstrated 'Iflaqbad faith„
<br /> and s disregard" ) .; Adkins v. United States., 816 F.2d 1580 (Fed.... Cir.
<br /> 19871 (410itsal appropriate for complete failure to respond.).:, A.s. the. Claims.
<br /> C Uft itself noted, "the draconian sanction of dismissal, t5 to be used onlvas. a
<br /> last resort,. in extreme cir:cuntjiances.. '- Hendler 11 at 7,4.
<br /> tlauntinq an order �of,A trial judge cannot be condoned,d, and t h judge has
<br /> Wfde discretion inimpaSlnq Sanctions.. However, dismissal Is. authO.NVid: 0541.
<br /> '
<br /> only when the failure: to comply with the court order is due. to :Willfulness' OJ
<br /> bad faith and notfrom the inability to Comply with the, order.. Nat'l. Hockey
<br /> L ieaque, 427 at 640. We recognize that the trial Court Made a; finding of
<br /> Of
<br /> wi!lifuiness "based` Upon its r6. iew of the record,,. its personal :itW
<br /> pressions 1
<br /> EXIS
<br /> `L ONEFNXI `
<br /> LEXIS ..
<br />
|