Del P. Henry, Jr., a Single Man, Plaintiff-Appellant-Cross-Appellee v. Gill Industries, Inc., Defendant-Appellee-Cross-Appellant

In this appeal and cross-appeal we must .decide whether a civil action can be dismissed as a sanction for failure to comply with discovery rules and whether a summary judgment motion on a counterclaim can be granted based solely on failure of the opposing party to file an answering memorandum under local court rules.

I

Del P. Henry, Jr., (“Henry”) brought suit against Gill Industries, Inc. (“Gill”) in January 1989 for alleged misconduct in connection with a 1985 securities transaction. Gill counterclaimed alleging that Henry’s suit breached a settlement agreement between them. The proceedings did not run smoothly. In January 1990, the district court ordered Henry to pay attorney’s fees as a sanction for discovery misconduct in violation of Federal Rule of Civil Procedure 37(d). In March 1991, the court dismissed Henry’s suit with prejudice for “repeated noncompliance with discovery rules.” Henry filed a timely notice of appeal. The district court then granted partial summary judgment against Gill on its counterclaim. Gill filed a timely notice of cross-appeal.

II

The district court awarded attorney’s fees against Henry under Federal Rule of Civil Procedure 37(d), which permits…