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Services of Mead Data Central, Inc,
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<br /> 1991 U.S App. LEXIS 30233<, *51 ,
<br /> by stating that they sere not developers, that they did not intend to develop '
<br /> then property and that; they simply planned to sell or lease the property. =,Id
<br /> 'Qn appeal, the Government sought to support the Claims Court's decision to
<br /> sanction plaintiffs by arquin4 that the facts requested in the interrogatories
<br /> were essential to the•�plaintiffsl claims, and unless substantiated, the ,court
<br /> could not conclude that they constituted a taking. Quoting from the .court's :
<br /> 0" inion. "If the evidence shows the absence of a permanent taking, to decide
<br /> whether a temporary taking ha. occurred the court will need to know the
<br /> character and expected duration of the government activity, and the degree of
<br /> interference with the;•private [,property," Hendler I at 97. The Governme5t argued
<br /> that "on the record before it;; the court found 'no hint of how defendant`:s
<br /> activities may have affected Cplaintiffs' I investment backed expectations, o r
<br /> even if they had any.- " See Handler I at 97.
<br /> k - The difficulty with this 1,*52I argument is that it assumes that to
<br /> establish a taking of;f,property under the fifth Amendment, it is necessary that
<br /> t, - owner of the locus in quo r,establisftinvestment 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 buz:a .
<br /> words dominating the current 1:iterature of takings law, they relate to the
<br /> jurisprudence of requlatory takings, and have no relevance when the cause of
<br /> action is premised an; an actual. physical occupancy,,. :As Loretto v. Teleprompter
<br /> Manhattan CATV Corp.
<br /> 9 458 u.S1.i 41.9, 437 (3982) , demonstrates,. the extent,of
<br /> occupation was only relevant to Compensation, hot liability.
<br /> t x e have before us, then, alldismissal sanction based it least in part tin an
<br /> aileged recalcitrance which goes at most to proving the quantum of damages
<br /> resulting from the physical: tgkinq. Plaintiffs had satisfactorily met their
<br /> burden of proof on the liability issue __ than there indeed had been a permanent
<br /> ` physical occupation by the Government. If plaintiffs failed to aggressively
<br /> develop a strong factual. basil" for calculation of just compensation_, that
<br /> t, !�31 was their right -- they are free to choose a course of action which may
<br /> turn out not to maximize their recovery. Since the plaintiffs ;repeatedly ,
<br /> indicated their willingness to Delimited to their answers, the Government
<br /> co rtainly cannot be said to ba prejudiced by such a litigation` tactic.
<br /> e i !
<br /> 7. The Sanction of Dismist1l
<br /> Rule 3-7 dismissal is a hArsh remedy, which ,should be reserved for gnl:y: the
<br /> ids t, severe abuses of the discovery process. Societe Intl, V. Rogers, 357 it..5,
<br /> j 197;, 212 (dismissal appropriate only for cases of willfulness, bad faiths or
<br /> fau'l.t of the petitioner) ; Natal Hockey League v. Metro. Hockey Club. 427 V.S. at
<br /> ' 6341 (dismissal appropriate where respondents demonstrated "flagrant batt faith
<br /> and "callous. dist`eq.Aeb") ; Adkins v. United states, 816 F .2d 1580 (Fed. fir.
<br /> 19$;.?) (dismissal apprtspriate for complete failure to respond) . As the Claims
<br /> Court itself noted, `°.the draconian sanction of dismissal is to be used. only as a
<br /> last resort, in extreme circuistances»" Hendler Ii at 7.
<br /> ei
<br /> r Flaunting an order, Of a. trial fudge cannot be condoned, and the Judge has
<br /> wide discretion in imposing sanctions. However, dismissal is authorized CSS
<br /> only' When the failure to comply with the court order is due to willfulness or
<br /> bad" faith anO not from the inability to Comply with the birder. Nat'l Hockey
<br /> League, 477 Lt,5. at b40. We recognize that the trial court made a finding of .
<br /> willfulness "based upon .its review of the record, its personal impressions of
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