In this аction under the Federal Employers’ Liability Act (“FELA”), Lois Exum sued her employer Norfolk Southern Railway, alleging that she suffered injuries as a result of Norfolk Southern’s negligence. Following the dismissal of her complaint, as a sanction fоr wilful failure to respond to discovery, Exum appeals, arguing that the trial court’s dismissal constituted an abuse of discretion. For the reasons set forth below, we affirm.
“A trial court has broad discretion to control discovery, inсluding the imposition of sanctions, and this Court will not reverse the trial court’s ruling on such matters absent the showing of a clear abuse of discretion.” Crane v. Darnell. 1 In this matter, the record shows that Exum filed her FELA action against Norfolk Southern on September 17, 2008. Norfolk Southern filed its answer on October 16, 2008, and on November 5, 2008, it served Exum with interrogatories and requests for prоduction of documents. Pursuant to OCGA §§ 9-11-33 and 9-11-34, Exum’s responses to Norfolk Southern’s discovery were due within 30 days of service, but Exum failed to respond within that time and did not request an extension of time in which to respond.
On December 17, 2008, Norfolk Southеrn’s counsel sent a letter to Exum’s counsel, requesting that Exum respond to the discovery. Receiving no response, on January 12, 2009, Norfolk Southern’s counsel sent a second letter to Exum’s counsel, again requesting responses tо the discovery. This , letter also elicited no response. Consequently, on March 17, 2009, Norfolk Southern’s counsel sent a third letter to Exum’s counsel, requesting responses to the discovery and advising that a motion to compel wоuld be filed if Exum failed to *782 respond. However, Exum again ignored the request.
On April 1, 2009, Norfolk Southern filed a motion to dismiss Exum’s complaint based on her complete failure to respond to its discovery requests. On May 22, 2009, shortly after the trial court scheduled a hearing on Norfolk Southern’s mоtion to dismiss, Exum provided objections (which of course had been waived by her failure to timely respond, see Tompkins v. McMickle 2 ) and responses to Norfolk Southern’s interrogatories and requests for production of documents. A few weeks lаter, Exum filed a response to Norfolk Southern’s motion to dismiss, in which she claimed that a lack of communicatiоn between her counsel and counsel’s legal assistant may have partially caused the delay in respоnding to Norfolk Southern’s discovery requests. After holding a hearing on the matter, the trial court, finding that Exum had wilfully ignored Norfolk Southern’s discovery requests, dismissed Exum’s complaint. This appeal followed.
1. Exum contends that the trial court abused its disсretion in dismissing her complaint for her failure to respond to Norfolk Southern’s discovery requests, arguing that such a sanction was too drastic given the fact that Norfolk Southern never filed a motion to compel. We disagree.
OCGA § 9-11-37 (d) (1) provides:
If a party or an officer, director, or managing agent of a party . . . fails to serve answers or objеctions to interrogatories submitted under Code Section 9-11-33, after proper service of the interrogatоries, or fails to serve a written response to a request for inspection submitted under Code Section 9-11-34, after proper service of the request, the court in which the action is pending on motion may make such ordеrs in regard to the failure as are just; and, among others, it may take any action authorized under subparagraphs (b) (2) (A) through (b) (2) '(C) of this Code section....
Subparagraph (b) (2) (C) of the statute authorizes the sanction of “[a]n order . . . dismissing the aсtion or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.” Importantly, “[a]n order compelling discovery is not a condition precedent for the imposition of sanctions under this Code section.”
Deep South Constr. v. Slack.
3
See
Crane,
supra, 268 Ga.
*783
App. at 312 (1);
Barrego v. OHM Remediation Svcs. Corp.;
4
Rivers v. Almand.
5
In fact, interpreting this statute, our Supreme Court in
Mayer v. Interstate Fire Ins.
Co.,
6
held that a
“total
failure to serve answers or objections would constitute a failure to respond under [Federal Rule of Civil Procedure] 37 (d) and would subject a party to immediate sanctions.” (Emphasis in original.) All that is required is a motion, notice, and a hearing to determine if the obstinate party’s failure to respond was wilful. See
Tenet Healthcare Corp. v. Louisiana Forum Corp.;
7
Crane,
supra,
In this matter, the evidence showed that Norfolk Southern served Exum with interrogatories and requests for production of documents in November 2008, and through its counsеl’s letters over the next five months, requested on three separate occasions that Exum provide resрonses to its discovery. After receiving no response whatsoever from Exum, Norfolk Southern moved to dismiss her cоmplaint. Following a hearing on the issue, the trial court granted Norfolk Southern’s motion, finding that Exum’s “failure to comply with discovery obligations was the result of a conscious or intentional failure to act and was not an acсidental or involuntary non-compliance.” Although Exum provided discovery responses nearly two months after Norfolk Southern moved to have her complaint dismissed, “once a motion for sanctions for failure to makе discovery has been filed, the opposing party may not preclude their imposition by making a belated response.”
Greenbriar Homes v. Builders Ins.
9
See
Fidelity Enterprises v. Heyman & Sizemore.
10
Given these circumstances, we cannot say that the trial court abused its discretion in dismissing Exum’s complаint on the ground that she completely and wilfully failed to respond to Norfolk Southern’s discovery requests. See
Deep South Constr.,
supra,
2. Exum also contends that the trial court abused its discretion *784 in dismissing her complaint based on its finding that two of her belated discovery responses were demonstrably false. However, in light of our holding in Division 1, we need not address this enumeration of error.
Judgment affirmed.
Notes
Crane v. Darnell,
Tompkins v. McMickle,
Deep South Constr. v. Slack,
Barrego v. OHM Remediation Svcs. Corp.,
Rivers v. Almand,
Mayer v. Interstate Fire Ins. Co.,
Tenet Healthcare Corp. v. Louisiana Forum Corp.,
McConnell v. Wright,
Greenbriar Homes v. Builders Ins.,
Fidelity Enterprises v. Heyman & Sizemore,
Roberts v. Maren Engineering Corp.,