By Kelly Caplan
BridgeTower Media Newswires
DETROIT — The rules say three strikes and you’re out.
Such was the case in Green v. Esurance Property and Casualty Insurance Company (MiLW 08-103275, 7 pages), where the trial court gave plaintiff’s counsel multiple chances to answer defendant’s discovery requests stemming from a March 2016 auto accident.
After pitching two monetary sanctions for cancelled depositions due to failure to appear and incomplete discovery even at a basic level because of discovery violations and noncompliance with court rules and a court order, the Wayne County
Circuit Court threw its third strike: dismissal.
At the time of the lower court proceedings, MCR 2.313(B)(2)(c) authorized trial courts to enter orders dismissing proceedings against parties who failed to obey an order to provide or permit discovery.
A unanimous Court of Appeals panel upheld the ruling, saying a sanction of this severity is generally proper “only when there has been a flagrant and wanton refusal to facilitate discovery and not when failure to comply with a discovery request is accidental or involuntary.”
The plaintiff’s motion for relief from the dismissal order simply said the sanction was too harsh. Not mentioned? Any legal authority or factors the trial court should have contemplated before tossing the matter.
“[P]laintiff’s motion for relief from the dismissal order did not even address plaintiff’s extensive history of discovery violations or attempt to offer any rationale or explanation for this unacceptable conduct,” the appellate panel explained. “In light of the fact that the trial court presided over the entirety of this case, including the several motions related to plaintiff’s discovery violations and the motion to adjourn scheduling dates because of plaintiff’s counsel’s dilatory conduct, it is obvious that the court was well aware of the relevant circumstances when the court granted defendant’s motion to dismiss plaintiff’s case because of ‘Plaintiff’s repeated discovery abuses.’”
The panel said there was no merit to plaintiff’s argument that the trial court failed to address factors that may be considered before imposing this sanction.
“[N]either plaintiff nor her counsel of record were present at the hearing when the trial court granted defendant’s motion to dismiss plaintiff’s case for violation of the court’s order and for a history of discovery abuses,” the panel pointed out. “In fact, plaintiff’s counsel of record rarely appeared at any of the court hearings held in this matter — not even at the hearing on plaintiff’s motion for relief from the order dismissing the case.”
The trial court had imposed lesser sanctions on plaintiff’s counsel with no results.
“[T]his was a three-year old accident and only very minimal discovery had been allowed by plaintiff’s counsel, including the incomplete deposition testimony of the plaintiff herself. Further, defendant had incurred substantial unnecessary expense because of defense counsel having to file numerous motions and then attend numerous hearings on those motions — which took hours because plaintiff’s counsel did not appear or was late.”
As such, there was no abuse of discretion on the trial court’s part.
“In summary, it is clear from the record that the trial court considered several relevant factors pertaining to the circumstances of this case before deciding to impose the sanction of dismissal,” the panel concluded.
Judges Mark T. Boonstra, Mark J. Cavanagh and Stephen L. Borrello sat on the panel that issued the unpublished
decision.
Sidney A. Klingler, a partner with Secrest Wardle in Troy, represented the defendant. She said the appellate panel got it right when it affirmed dismissal of the plaintiff’s case with prejudice based on a “persistent and extensive history of discovery abuses and dilatory conduct” on the part of plaintiff’s counsel.
“The panel clearly felt that there was a flagrant and wanton failure to facilitate discovery, and also that the trial court fulfilled its duty to consider the circumstances of the case and determine that the drastic sanction of dismissal was just and proper,” she said. “In particular the panel noted that the trial court had imposed a monetary sanction on plaintiff’s counsel to no avail, and that the trial court noted this on the record.”
She also said that, of the three orders compelling discovery the trial court entered, the plaintiff violated two of them.
“Plaintiff’s counsel twice cancelled plaintiff’s deposition on the eve of the scheduled deposition, and — as the panel noted — simply no-showed for a third scheduled deposition,” she added.
Finally, as the appellate court observed, the trial court took into consideration several of the factors enumerated in Vicencio v. Ramirez, before imposing dismissal as a sanction.
Plaintiff’s appellate counsel could not be reached before deadline.
—Refusal to participate
Plaintiff Sheila Green was injured in a March 2016 motor vehicle accident; she filed a first-party no-fault action for PIP benefits including replacement services and attendant care provided by her service providers in June 2018.
Defendant Esurance refused to pay and, two months later, served written discovery requests, including interrogatories and a request for production of documents.
In September 2018, the Wayne County Circuit Court issued its scheduling order, stating that the plaintiff “shall identify all known services providers” with contact information.
That’s when the back-and-forth began.
The defendant filed a motion to compel after plaintiff’s responses weren’t timely filed; plaintiff’s counsel did not appear at the hearing so that motion was granted.
Again, the trial court issued its order; again, plaintiff’s counsel failed to timely submit responses.
Getting the plaintiff’s deposition also proved difficult. It was scheduled three different times, but she failed to appear. The defendant filed another motion to compel, and plaintiff’s counsel failed to appear at that hearing.
In December 2018, the trial court granted defendant’s motion and issued a sanction of $500 in costs.
With the new year came a new round of motions. Plaintiff’s counsel failed to appear at multiple hearings or respond to defense requests in January and February 2019.
The defendant filed a motion to dismiss for violation of discovery or to compel the discovery depositions of the plaintiff’s service providers.
Defense counsel argued that “plaintiff’s blatant and continuous refusal to participate in the discovery process from the start of this case had caused substantial prejudice” and should result in dismissal under MCR 2.313.
In March 2019, plaintiff’s counsel showed up to the hearing on the motion to dismiss.
According to the opinion, he said defense counsel “whined about a lot of stuff” and that “if she wants depositions for care providers, she’s gotta serve a subpoena on them, and until she does that this Court doesn’t have jurisdiction over them.”
The trial court said that while it was true defense counsel could subpoena the plaintiff’s care providers, it was also true that plaintiff’s counsel could cooperate.
That was when plaintiff’s counsel responded: “I mean if she, if she’s nice about it I’ll be happy to do that,” adding that he was “not dealing with all this ranting and raving.”
The trial court denied the defendant’s motion, saying the care providers had to be subpoenaed, but that plaintiff’s counsel had to provide all of the contact information within 21 days.
After plaintiff’s counsel violated the court’s order — first by failing to provide contact information and then supplying untimely and incomplete contact information — the defendant refused to withdraw its motion to dismiss.
The hearing on this motion took place in April 17, 2019; plaintiff’s counsel did not appear.
The court dismissed the case with prejudice. The court granted an additional $500 in sanctions after it was told that plaintiff’s counsel still had not paid the previously ordered sanction of $500.
The next day, the plaintiff filed a motion for relief from the court’s order dismissing the case; counsel thought the motion would be heard on April 19 so dismissal due to this “inadvertent mistake” was too harsh.
The defendant’s response was simple: dismissal was a proper sanction due to “numerous and flagrant discovery violations.”
In May 2019, at the hearing for the plaintiff’s motion for relief from dismissal, plaintiff’s counsel of record did not appear.
The trial court concluded that, “while the court is willing to disregard Plaintiff’s counsel’s failure to attend the hearing, the Court cannot disregard the merits of the motion to dismiss, i.e., Plaintiff’s repeated failure to provide discovery in this case, nor can the Court disregard Plaintiff’s failure to account for this conduct.”
Holding that there was no basis for granting relief from the order of dismissal, it denied the plaintiff’s motion.
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