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Litigation: D.C. Court of Appeals endorses dismissing cases for contumacious conduct

The Court discusses D.C.’s version of FRCP 41(b), which governs involuntary dismissal

Rule 41(b) of the Federal Rules of Civil Procedure, or its state or local equivalents, empowers trial court judges to dismiss a case when a party commits contempt of court or otherwise violates court orders. Pietrangelo v. Wilmer Cutler Pickering Hale & Dorr, an April 11 decision of the D.C. Court of Appeals, highlights a trial court’s discretion under the rule to dismiss for contumacious conduct.

James E. Pietrangelo, II sued WilmerHale, alleging legal malpractice arising out of the firm’s representation of Pietrangelo in his challenge to the now-repealed “Don’t Ask Don’t Tell,” law. The court dismissed 20 of Pietrangelo’s 23 counts for failure to state a claim, and D.C. Superior Court Judge Joan Zeldon granted summary judgment in favor of WilmerHale on one other count. Pietrangelo’s problems arose at the trial of the remaining two counts.

During WilmerHale’s representation, Pietrangelo sent the firm an email that contradicted a position he was taking in the legal malpractice case. Pietrangelo initially denied sending the email, and WilmerHale responded by pointing out he had attached it to a bar complaint he filed against the firm. Zeldon ruled that both Pietrangelo’s email and the bar complaint were admissible.

Despite Zeldon’s ruling, Pietrangelo refused to answer questions about the email and bar complaint. In the jury’s presence, Zeldon instructed Pietrangelo to answer the questions, noting his objection, and Pietrangelo again refused to answer.

Out of the jury’s presence, Zeldon explained to Pietrangelo the seriousness of the situation:

“I want you to hear all this and think about it, because it’s a very important crossroads for you in this case.…If you decide to proceed in this matter, you risk, I will dismiss the case, it will be over today, as a sanction for your refusal, for your contempt, which is in the presence of the Court. I don’t want to do that…So you have a choice to make. Do you need five minutes think this over, or have you already decided that you’re not going to [answer the questions]?”

Pietrangelo replied, “I don’t need a second, Your Honor.” When the jury returned, Pietrangelo refused to answer an additional 21 questions, all of which Zeldon had ordered him to answer.

Consistent with her previously stated preference that the case be decided on the merits, Zeldon chose not to dismiss the case under Rule 41(b) of the Superior Court Rules of Civil Procedure, which is modeled on Federal Rule 41(b). Instead, she instructed the jurors that they could conclude that his answers would have been unfavorable to his case. The jury returned with a defense verdict for the firm.

On appeal, Pietrangelo challenged, “virtually every ruling adverse to him.” The court of appeals characterized his claims as ranging, “from arguable to patently frivolous.” WilmerHale argued that all of Pietrangelo’s legal arguments lacked merit and that the suit should have been dismissed for Pietrangelo’s contumacious conduct.

The court of appeals found that Zeldon would have been justified in dismissing the case under Rule 41(b). Citing case law that supports such a sanction, the court of appeals noted that “Pietrangelo’s refusals to comply with the trial court’s orders were contemptuous of judicial authority because they were intentional obstructions of court proceedings that disrupted the progress of the trial and hence the orderly administration of justice.”

Pietrangelo relied on his belief that the adverse rulings were erroneous to justify his behavior. The court of appeals made short shrift of this argument, noting that, “his remedy for what he believed to be error by the trial court was not by flagrant disregard of lawful orders from the bench.” The court of appeals quoted from the Supreme Court case United States v. Wilson:

“The face-to-face refusal to comply with the court’s order itself constituted an affront to the court, and when that kind of refusal disrupts and frustrates an ongoing proceeding… [the contempt power is and] must be available to vindicate the authority of the court as well as to provide the recalcitrant witness with some incentive to testify.”

The court noted that the decision to dismiss is within the trial court’s discretion. Zeldon chose not to dismiss the case under Rule 41(b), but the court of appeals made it clear that “she would have acted well within her discretion to impose such a sanction.”

Contributing Author

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Jim Steele

Jim Steele is a member at Carr Maloney. He counsels insurers on complex coverage matters and litigates insurance coverage disputes. He also defends clients in...

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