KENNETH ALLEN V DETROIT NEWS INC
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STATE OF MICHIGAN
COURT OF APPEALS
KENNETH ALLEN,
UNPUBLISHED
December 2, 2003
Plaintiff-Appellant,
v
No. 241526
Wayne Circuit Court
LC No. 01-118183-NO
DETROIT NEWS, INC.,
Defendant-Appellee.
Before: Murray, P.J., and Gage and Kelly, JJ.
PER CURIAM.
Plaintiff appeals as of right the trial court’s orders dismissing the case and denying his
motion for reconsideration. We affirm. This appeal is being decided without oral argument
pursuant to MCR 7.214(E).
On May 31, 2001 plaintiff filed suit alleging that defendant,1 his former employer,
violated the Worker’s Disability Compensation Act, MCL 418.101 et seq., by terminating his
employment in retaliation for his having filed a claim for worker’s compensation benefits.
Plaintiff also asserted a claim for loss of consortium. On July 17, 2001 defendant filed an
answer and served its first set of interrogatories and requests for production of documents.
Plaintiff failed to respond to the discovery requests in a timely fashion. Defendant filed a motion
to compel answers to discovery. The trial court entered a stipulated order providing that plaintiff
would furnish “complete and accurate” responses to defendant’s first set of interrogatories and
requests for production of documents by October 5, 2001. Plaintiff produced unsigned answers
on October 9, 2001. In response to various questions, including some seeking documents such as
income tax returns, pay records, and medical records, plaintiff stated either that he was not in
possession of the information or that the information would be produced at a later time. Plaintiff
attached several pages of medical records to the responses.
On October 19, 2001 defendant served a notice of taking of deposition duces tecum, and
requested that plaintiff bring to the deposition the same documents he failed to produce in his
responses to the interrogatories and requests for documents. Plaintiff appeared for the
1
Defendant indicates that its correct corporate name is the Detroit Newspaper Agency.
-1-
deposition, but failed to produce any documents. Plaintiff’s counsel ordered plaintiff not to
answer a number of questions relating to the bases for his claims. The instructions not to answer
were not based on privilege. Plaintiff’s deposition was not completed because during the
deposition his counsel refused to continue the proceedings past 3:00 p.m. Plaintiff’s counsel
agreed to produce plaintiff to continue the deposition on another date, but subsequently refused
to do so.
On January 14, 2002 defendant moved to dismiss the case due to plaintiff’s abuse of the
discovery process. The trial court granted the motion, finding that plaintiff engaged in a pattern
of discovery abuses, including submitting incomplete answers to interrogatories, refusing to
produce requested documents, and refusing to answer proper questions posed at his deposition.
The trial court dismissed the case with prejudice.
Plaintiff moved for reconsideration. The trial court denied the motion, finding that
plaintiff had engaged in a pattern of discovery abuses, and that it considered the appropriate
factors prior to imposing the sanction of dismissal. The trial court awarded defendant $3,412.50
in costs.2
MCR 2.313(B)(2)(c) authorizes a trial court to enter an order dismissing a proceeding
against a party who fails to provide discovery. Dismissal is a drastic sanction, and should be
imposed only when a party flagrantly and wantonly refuses to facilitate discovery. The sanction
of dismissal should not be imposed if the failure to comply with a discovery request is accidental
or involuntary. The record should reflect that the trial court gave careful consideration to the
factors involved and considered all options in determining the appropriate sanction. The factors
that should be considered include: (1) whether the violation was willful or accidental; (2) the
party’s history of noncompliance with discovery; (3) the prejudice to the other party; (4) the
degree of compliance by the party with other court orders; and (5) whether a lesser sanction
would better serve the interests of justice. The trial court’s decision to impose a discovery
sanction is reviewed for an abuse of discretion. Bass v Combs, 238 Mich App 16, 26-27; 604
NW2d 727 (1999).
We review a trial court’s decision to grant or deny a motion for reconsideration for an
abuse of discretion. Churchman v Rickerson, 240 Mich App 223, 233; 611 NW2d 333 (2000).
Plaintiff argues that the trial court abused its discretion by dismissing the case. He
emphasizes that the case was only seven months old, and contends that the trial court failed to
consider whether a lesser sanction would be appropriate under the circumstances. We disagree
and affirm the trial court’s orders.
Plaintiff engaged in a pattern of discovery abuses. He failed to respond to defendant’s
interrogatories and requests for production of documents in a timely fashion. He disobeyed a
stipulated order to provide “complete and accurate” responses by a certain date, and
subsequently furnished late, incomplete, and unsigned responses. Plaintiff ignored defendant’s
2
Plaintiff does not specifically challenge the award of costs on appeal.
-2-
request that he sign the answers. He ignored defendant’s request that he produce certain
documents at his deposition. Plaintiff’s counsel refused to allow plaintiff to answer several
questions relating to the bases for his claims against defendant, and refused to allow the
deposition to be completed on the scheduled day. Plaintiff’s counsel refused to produce plaintiff
to allow the deposition to be completed, notwithstanding his agreement that he would do so.
Plaintiff violated both a stipulated order allowing him to file an amended complaint to correct
defendant’s corporate name and the trial court’s scheduling order requiring him to file his
witness list by a certain date.
The trial court did not abuse its discretion when it found that plaintiff’s discovery abuses
were willful, had continued throughout the entire case, and could not be considered accidental.
Bass, supra at 34 n 7. Additionally, the trial court also did not abuse its discretion by concluding
that defendant was prejudiced by plaintiff’s discovery abuses because the abuses prevented
defendant from gathering the material necessary to adequately prepare its defense. Plaintiff’s
assertion that dismissal was unduly harsh because counsel had assured the trial court that he
would comply with any discovery order the trial court issued is without merit in light of the
evidence that plaintiff had already failed to comply with several court orders regarding
discovery. The record discloses a history of recalcitrance or deliberate noncompliance with
discovery orders and procedures. The circumstances supported imposition of the harsh sanction
of dismissal. Thorne v Bell, 206 Mich App 625, 633-634; 522 NW2d 711 (1994). No abuse of
discretion occurred. Bass, supra at 26; Churchman, supra.
Affirmed.
/s/ Christopher M. Murray
/s/ Hilda R. Gage
/s/ Kirsten Frank Kelly
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