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Services of Mead'I3ata Central, Ina {
<br /> PAGE 6 18
<br /> ' 1991 U.S. App:. LEXIS 30233, •*43
<br /> 9.606(a) , 96134(a) , (`b) , and tel . !�Hendler I at 93. Thus, California state
<br /> officials .who entered on plaintiffs' land did so under the authority granted
<br /> by CERCLA. f.
<br /> ltd, follows that their activities within the scope of the Crder are .r
<br /> attributable to; the Federal Government for purposes of takings law gust as 'are.
<br /> the-, activities .of 0A itself. As the Court in Loretto observed, "calpermanent
<br /> physi.ca3. taccupei:ion `autl'arized try to government3 is taking without :re {ard• to
<br /> %het,h9 the Egnvernment , or instead a party authorized by the Cgover�nment3., is..
<br /> the o:gcup l t." 458 .U...5 at 432 n-9. in Loretto the authorizing government eras a.
<br /> state, rather than the .federal government, but the principle regain the saes.
<br /> There is no :questions taut that California officials were octirici under the
<br /> authority of the 9983 drder, and. in pursuance of the State's formal Cooperative:
<br /> Agreement with: the Government to assist in carrying out Sup'erfund activities$p.
<br /> inoxudinq this :ane, and.; with sudstantial funding from the Government. That the
<br /> :state had authority to act on its own initiative, as the Goverhment lcontend.sy is
<br /> immaterial, it is nt defense. 1+4441 to a chargeof authorizincq someone to
<br /> i vZolate anothe.r's ri:Qlats. that tele perpetrator might have clone, sty on. his own.:.
<br /> aTht? Discovery Rests and. the gnsuirag Dismissal
<br /> I:We turn now, in :li h of thelilaw app3.icable to the issues dust discussed, to
<br /> the question of whether plaintiffs should be sanctioned for their conduct of the
<br /> case, and whether dismissal with prejudice is a proper sartction under the
<br /> cir'cumstatices. Aplaintiff with a proven meritorious claim may have that claim
<br /> taken away if the plain'tiff's conduct --- or more, accurately the conduct of the
<br /> lawyer for the plaintiff -- is $o offensive to the court and so violative df
<br /> established norms as to ustifV, this severe a punishment. See Nat'l Hockey'.
<br /> Leaque v. Metro. Hockey Club, 427 U.S. 639 (9976) ; see also Rule 37
<br /> Jhe controversy over, the adequacy of plaintiffs' responses to the k
<br /> Gov.erhment's propounded, interrogatories turned an whether the answers provided
<br /> ' tele essential factual ?bases fat, plaintiffs' claims, information necessary Tfor
<br /> defendant to prepare a Defense and to pursue meaningful discovery." Claims Court
<br />{ OrdIer:., April 30, 9987. i=oll.owinq the extended discovery period, during which the.
<br /> pa mics 1453 fought river whether various interrogatories were proper and
<br /> whetter answers should lbe campelled, the Government mewed the court to dis o s`s.
<br /> T
<br /> J. Hendler's :complaint under Rule 37. The Claims Court's Order of April 3{t, 1:987,
<br /> stated that plaintiffs-',; supplemental responses had failed to respond fully :td
<br /> the Giave,rttment's in terr'.rlgatories, and gave the plaintiffs fourteen days to
<br /> comply. The court warndd that failure to comply would result in dismissal of the
<br /> casji.! Nendler time y. res.1onded, but the Government deemed the respot. .9
<br /> in dequat`e. In its Deoember 91 , 1989 decision, Hendler fi, the court.;granted the
<br /> Goi rnment's sdttat and, d SM1. sid the case with prejudice.
<br /> ..
<br /> ,The court deemed the, plaintiffs to have acted willfully in not responditlg
<br /> fu 1y and prectsel, to ;the Government's interrogatories. "Aix of the `information
<br /> the' government seeks is Within the; exclusive knowledge and. possession of
<br /> plaitt'tiffs. onlyplaint'iifs know haw the EPA activities on their land have:
<br /> dedrived then of any econa>nI allVy viable use of the sublect; property, yet they:
<br /> ret`use to tela: defthdarft and thecourt." Nendler II at 31 t.footrtD omIttedl •
<br /> The ;court noted that 4nd'ler's defense to the Government's fnat-ibn to. E*463
<br /> LEXIS"NEXI
<br /> S*LEXIS
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