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Rivers v. Almand

The Court of Appeals sanctioned the plaintiff's attorney for appealing the dismissal of her complaint after she failed to respond to any discovery or appear at her noticed deposition.

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To sanction plaintiff Mary Rivers for her total noncompliance with the discovery process, the trial court dismissed her complaint with prejudice, cast costs upon her, and awarded $500 in attorney fees. On appeal, Rivers seeks to challenge the order dismissing her case. We affirm.

Rivers instituted a personal injury lawsuit against James Almand in July 1998. Almand answered and served interrogatories and requests for production of documents on August 12, 1998. When Rivers completely failed to respond, Almand’s counsel wrote a letter dated September 21, 1998, inquiring as to whether there was a problem and offering to agree to an extension if one was needed. After no reply was forthcoming, Almand’s counsel sent a second letter on October 30, 1998, again requesting a response. When again met with silence, on November 24, 1998, Almand’s counsel wrote another letter to Rivers’s counsel seeking a response and suggesting that counsel contact him “if there is some problem of which I am unaware.” Almand’s counsel advised, however, that if the documents were not provided within ten days, he would file a motion to compel seeking sanctions. Subsequently, Almand moved to compel or in the alternative for sanctions including dismissal of the complaint due to “plaintiff’s total and wilful failure to respond to discovery.” About two weeks after this motion was filed, neither Rivers nor her counsel appeared for a noticed deposition. A court reporter certified the nonappearance of Rivers and her attorney. Almand then filed a supplemental brief to his motion to compel, pointed to this additional evidence of misconduct, and again requested the dismissal of Rivers’s complaint.

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