Michigan Court of Appeals; Docket #338375; Unpublished
Judges Swartzle, Shapiro, and Boonstra per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion; Link to Concurrence
STATUTORY INDEXING:
TOPICAL INDEXING:
Evidentiary Issues
CASE SUMMARY:
In this per curiam opinion, the Court of Appeals upheld the dismissal of Plaintiff Marvin Brown’s (“Brown”) claim against Defendant Michigan Assigned Claims Plan (“MACP”) because of Brown’s counsel’s failure to comply with discovery. Brown’s counsel failure to comply with the trial court’s discovery order was “willful” and repeated, and so dismissal was appropriate.
Brown sought first party PIP benefits through MACP, which denied Brown’s allegation. Brown brought an action against MACP and the trial court entered a scheduling order for a discovery-cutoff date on July 26, 2016. The order explained that failure to comply “strictly” with all terms of the order “may result in sanctions.” MACP served interrogatories and requests to produce on Brown’s counsel on March 7, 2016. After Brown’s attorney failed to respond, MACP filed a motion t compel discovery on June 17, 2016. Eventually, Brown and MACP agreed to a deposition on July 12, 2016. However, the day before the scheduled deposition, Brown cancelled. A hearing to compel was scheduled for July 29, 2016 and Brown’s attorney failed to file a timely response to the motion. Thus, an order requiring Brown to submit to a deposition was granted and Brown was required to submit to a deposition within 14 days of July 29, 2016. MACP emailed Brown’s attorney twice to schedule a deposition date. Brown’s attorney failed to schedule the date and failed to provide discovery authorization as required by the order. Finally, on October 6, 2016 the trial court entered an order for dismissal based on Brown’s attorney’s conduct.
The Court of Appeals upheld the dismissal because the violations were willful and repeated. The Court first explained that the trial court failed to address a number of factors regarding dismissal. Most importantly, the trial court failed to explain why lesser sanctions were not appropriate. The Court explained that dismissal was the harshest penalty and should typically be reserved when lesser sanctions are not appropriate. However, the Court found that the trial court’s failure to address the issue did not require remand. The Court explained that it can uphold dismissal, apart from a trial court’s error, if the record otherwise justifies it. Here, the Court found that Brown’s attorney was willful in his failure to comply. MACP reached out multiple times to seek a date that would work, the court ordered depositions, but all of that was met with silence. There was no good faith reason for the attorney’s failure in this regard. Second, the Court found that this was a repeated occurrence. For four and a half months MACP tried to schedule a date for deposition and Plaintiff’s attorney failed to comply. The Court therefore found that justice allowed dismissal of Brown’s complaint.
“When a sanction short of dismissal “would not better serve the interests of justice,” dismissal is proper as a sanction. North v Dept of Mental Health, 427 Mich 659, 662; 397 NW2d 793 (1986). . . . The record confirms that plaintiff’s failure to comply with the trial court’s discovery order was willful. The language of the order was clear and direct—plaintiff had to provide certain discovery within 30 days or his action would be dismissed with prejudice. Defendant’s counsel reached out on multiple occasions to seek a date for plaintiff’s deposition, but the entreaties were met with silence. . . . Nor was plaintiff’s refusal to cooperate a one-off occurrence. The underlying basis for the trial court’s discovery order was, after all, plaintiff’s prior refusals to cooperate. Specifically, on March 7, 2016, roughly four-and-a-half months before the original discovery deadline, defendant’s counsel contacted plaintiff’s counsel requesting dates for plaintiff’s deposition.”
Thus, the Court upheld the trial court’s dismissal based on Plaintiff’s attorney’s failure to comply with discovery.
Concurrence
Judge Shapiro concurred with only the result.
