DASSORI v STANLEY CHEVROLET CO
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No. 86-268 IN THE SUPREME COURT OF THE STATE OF MONTANA 1986 FREDERIC D. DASSORI, Plaintiff and Appellant, ROY STANLEY CHEVROLET CO., AND ROY STANLEY, individually, Defendants and Respondents. APPEAL FROM: District Court of the Eleventh Judicial District, In and for the County of Flathead, The Honorable Michael H. Keedy, Judge presiding. COUNSEL OF RECORD: For Appellant: Murphy, Robinson, Heckathorn & Phillips; Debra D. Parker and Dana Christensen, Kalispell, Montana For Respondents: Warden, Christiansen, Johnson & Berg; Gary R. Christiansen, Kalispell, Montana Submitted on Briefs: Sept. 25, 1986 November 25, 1986 Decided: . --w* 8 Clerk Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of the Court. Frederic D. Dassori appeals the April 18, 1986, order of the Eleventh Judicial District Court dismissing, with prejudice, Dassori's complaint against Roy Stanley Chevrolet Co. and Roy Stanley, individually (defendants). We affirm the dismissal of the complaint. Dassori, a lawyer residing in the state of Maryland, represented Company. against defendants in a dispute with General Motors On October 16, 1984, Dassori filed a complaint defendants seeking to recover $71,042.59, in attorney's fees incurred in the action with General Motors Company. An amended complaint was filed October 24, 1984. An answer was subsequently filed and on January 14, 1985, defendants filed and had served their first set of for an interrogatories and a request for production. Dassori filed a motion February 13, 1985, extension of time in which to answer those interrogatories. The motion was granted February 22, 1985, extending the time in which to respond to March 18, 1985. No response was Therefore, on October 24, 1985, defendants forthcoming. filed a motion to dismiss Dassori's complaint pursuant to Rule 37 (d), interrogatories. M.R.Civ.P., A hearing for on failure the to motion was November 5, 1985, but was subsequently vacated. answer set for The hearing was finally held March 13, 1986. In the interim, defendants filed a counterclaim against Dassori. Dassori's motion to dismiss the counterclaim as untimely was denied February 11, 1986. Dassori appeared personally at the March hearing on defendants' motion to dismiss. the court with answers to the 13, 1986, He also supplied interrogatories and the requested documents at that time. Nevertheless, the trial judge dismissed Dassori's complaint by order dated April 18, 1986. Dassori's motion for reconsideration was denied at a hearing on May 22, 1986. The sole issue on appeal is whether the trial judge abused his discretion when he dismissed Dassori's amended complaint against defendants. Dassori contends the trial judqe abused his discretion in several ways. First, if any sanction should have been imposed, it should have been less severe than dismissal of the case. Second, no sanction should have been imposed as the District Court never issued an order to compel the answers and Dassori eventually responded. This Court has addressed the imposition of R-ule 37, M.R.Civ.P., primary sanctions several times in the recent past. thread binding each of those decisions is The the deference this Court gives to the decision of the trial judge. Rule 37, M.R.Civ.P., deter dilatory parties. sanctions exist in order to They provide the trial judqe with a way to prevent an excessive back-log of cases. The trial judge is in the best position to know the extent of the back-log and to know which parties callously disregard the rights of their opponents and other litigants seeking their day in court. The trial judge is also in the best position to determine which sanction is the most appropriate. [Wlhen it is not possible for this Court to make a ready, confident, and accurate determination of a party's good faith in the discovery process, we presume the correctness of the District Court's action und.er Rule 37. Owen v. F. A. Buttrey Co. (Mont. 1981), 627 ~ . 2 d 1233, 1237, 38 St.Rep. 714, 719, citing National Hockey League v. Metropolitan Hockey Club, Inc. (1976), 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2~3 747. Rule 37 (d), M. R.Civ. P., on which defendant's motion to dismiss is based, states in pertinent part: Failure of party to attend at own deposition or serve answers to interrogatories or respond to fails request for inspection. If a party (2) to serve answers or objections to interrogatories submitted under Rule 33, after the proper service of the interrogatories, court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under paragraphs (A), ( B ) , and (C) of subdivision (b) (2) of this rule. (Emphasis supplied.) ... ... ... Those authorized actions are: (A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; (B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence; (C) An order striking out pleadings or parts thereof, or staying further proceedings until the or order is obeyed, or dismissing the action proceeding or any part thereof, or rendering a judgment by default against the disobedient party. (Emphasis supplied.) Clearly, action. a permitted sanction is dismissal of the We find no abuse of discretion by the trial judge in imposing that sanction. Unlike in Rule 37 (a), M.R.Civ.P., Rule 37(d), M.R.Civ.P. no mention is made in of a motion to compel. Indeed, a motion to compel is not necessary in Rule 37(d), M.R.Civ.P. actions. See Vehrs v. Piquette (Mont. 1984), 684 P.2d 476, Furthermore, a party cannot cure his dilatory actions by presenting the requested answers and documents at the hearing on the motion to dismiss when that hearing is held 14 months after the interrogatories and request for production were received. Dassori's "last-minute tender of relevant documents could created." G-K Properties v. Redevelopment Agency of the City of San Jose not cure the problem (9th Cir. 1978), 577 F.2d [he] had previously 645, 647. To hold otherwise would contribute even more to the delay presently inherent in actions. Affirmed. We concur: ,- \ Justices - -
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