Ranger Transportation, Inc., Appellee, v. Wal-mart Stores, Appellant, 903 F.2d 1185 (8th Cir. 1990)

Ranger Transportation, Inc. (Ranger) brought suit against Wal-Mart Stores, Inc. (Wal-Mart) under 49 U.S.C. § 10744 (1982) alleging unpaid freight charges of $110,562 arising from shipments made in June through November of 1987.¹  Wal-Mart's defense was that it had paid Bell Trucking, Inc. (Bell), and that Bell was, at least ostensibly, Ranger's agent for collection purposes. The jury found Wal-Mart liable in the amount of $73,334. Wal-Mart appeals; we affirm in part and reverse in part.

DISCUSSION

Wal-Mart initially urges that the judgment should be set aside because Bell was a "necessary and indispensable" party under Federal Rule of Civil Procedure 19.²  Wal-Mart argues it is faced with a substantial risk of incurring double obligations within the meaning of Rule 19(a) (2) (ii). As the district court pointed out, there is little likelihood of this occurring. However, even if Bell were a necessary party, the proper procedure under Rule 19(a) is to give the parties an opportunity to bring in such a party, not to dismiss the action. Warner v. First Nat'l Bank of Minneapolis, 236 F.2d 853, 857-58 (8th Cir. 1956). Bell, an Arkansas corporation, was within the venue and jurisdiction of the district court and could easily have been impleaded by Wal-Mart. Wal-Mart did not choose to do so. It merely raised the issue of indispensability, and then moved to dismiss the suit after the district court's joinder deadline had passed. Any notion that the district court erred in refusing to dismiss the suit in these circumstances is wholly without merit.

Wal-Mart raises several other issues relating to the judgment of liability. Specifically, Wal-Mart alleges that: (1) the court failed to provide the jury with complete and meaningful instructions on Wal-Mart's defense of agency by estoppel; (2) the court failed to instruct the jury that Ranger had the burden of proof; (3) the court erred in instructing the jury on an objective standard for notice of agency revocation; (4) the evidence was insufficient to support the verdict; (5) a new trial was warranted due to Ranger's failure to produce a "fleet lease" in discovery; (6) the verdict was perverse because the liability amount bore no rational relationship to damages sought, and; (7) the district court abused its discretion in granting Ranger an extension of time to respond to Wal-Mart's summary judgment motion.

None of these issues merits reversal. The jury instructions, as a whole, adequately stated the law applicable to this case.³  See Roth v. Black & Decker, U.S., Inc., 737 F.2d 779, 784 (8th Cir. 1984). The evidence was sufficient to support a finding that Wal-Mart had notice at some point that Bell was not Ranger's agent for purposes of collection, but nevertheless continued to pay Bell. The verdict was not perverse given uncertainty as to the precise amount owed and debate as to when Wal-Mart had sufficient notice. The refusal to order a new trial as a sanction for alleged discovery abuse was not a clear abuse of discretion, see Hazen v. Pasley, 768 F.2d 226, 229 (8th Cir. 1985); the relevance of the fleet lease is speculative and no prejudice has been shown.⁴  Finally, the extension of time to respond to the summary judgment motion was also within the district court's discretion and caused Wal-Mart no prejudice.

Wal-Mart argues that the district court erred in ordering monetary sanctions for the failure of a Wal-Mart employee, Bryan Banks, to attend a deposition on May 26, 1989. Upon reconsidering its original sanctions order, the district court found that Banks' failure to attend caused Ranger no additional expense because Ranger's attorneys were able to take two other depositions that day, and because Ranger never attempted to reschedule Banks' deposition despite ample opportunity to do so before trial. Nevertheless, the court awarded Ranger $1000 for expenses incurred solely in pursuing the motion for sanctions. Wal-Mart argues that this was an abuse of discretion. We agree.

Rule 37(d)'s authorization of monetary sanctions is limited to reimbursement for reasonable expenses and fees "caused by the failure" of a party, or an officer, director, or managing agent of a party, to attend a deposition for which proper notice was given.⁵  Because the sole purpose of Ranger's sanctions motion, filed well after trial had ended, was to recover expenses, the district court's finding that no such expenses had been incurred was, in effect, a denial of the motion. We find no authority in the Rules for awarding expenses of pursuing the motion in these circumstances. Cf. Fed. R. Civ. P. 37(a) (4) (authorizing award of expenses only for motions that are granted and "necessitated" by other party's conduct). Thus, even if Banks' behavior was subject to sanction under Rule 37(d),⁶  the district court abused its discretion in awarding Ranger expenses for pursuing the motion.

CONCLUSION

We affirm the judgment of the district court as to the liability of Wal-Mart for freight charges. We reverse the order of Rule 37(d) sanctions.