*1 500 R. McKenzie,
James Appellant, Plaintiff v. SCHEELER, M.
VALENTINE
Respondent.
Defendant
No. 97-106.
on Briefs June
1997.
Submitted
Decided December
St.Rep. 1277.
For Attorney Law, at Missoula. Respondent: Gordon; For John R. Reep, Spoon Gordon, & Missoula. Opinion
JUSTICE GRAYdelivered the of the Court. (McKenzie) James R. McKenzie appeals judgment from the en- tered the Fourth Court, Judicial District County, Missoula on its dismissing order prejudice and from the District subsequent denying Court’s order his motion to alter or amend the order of dismissal. We affirm.
We restate the appeal issue on as whether the District Court erred in dismissing McKenzie’s complaint with prejudice for failing to discovery procedures and scheduling orders.
BACKGROUND On December McKenzie, a citizen, Canadian filed a (Scheeler) complaint against Valentine M. Scheeler damages allegedly resulting from a vehicle accident which occurred north of Montana, Ignatius, St. on December 1992. The complaint alleged that McKenzie had property suffered damages, personal injuries, pain suffering, emotional stress, expenses medical and loss of wages as a result of the accident. After Scheeler answered the complaint, District Court issued an order directing McKenzie to consult with Scheeler regarding the scheduling pretrial matters and submit a proposed scheduling June 1995. When McKenzie failed to proposed order, submit a Scheeler filed his own proposed scheduling order and the adopted court it. The scheduling order set deadlines for amending pleadings, providing expert witness statements, disclosure exchanging lay lists, witness exhibit com- pleting discovery filing pretrial motions. The order desig- also nated dates which a settlement conference would be held and a pretrial order would be filed.
Scheeler served interrogatories McKenzie with requests and for production of documents April which requests included regarding any injury for medical records or medical condition McKen- zie from prior 9, 1992, accident; suffered to the December records of medical expenses incurred McKenzie accident; as result of the all copies documentary evidence McKenzie expected to offer at trial; copies of McKenzie’s tax ten-year period; income returns for a copies prescriptions and and prescription receipts any drugs for purchased during year prior used to the accident. respond 13, McKenzie did not until November 1995. In addition to his failure to serve the responses within the 30-day time 33(a) provided 34(b), limit in Rules M.R.Civ.P., McKenzie’s re sponses many interrogatories of the and requests production for admittedly incomplete, were erroneous or otherwise inadequate. During deposition January 1996, McKenzie stated he would produce medical, employment additional and financial records. He eventually provided Scheeler with several additional documents in June of but documents did not include the medical records requested and tax returns Scheeler had in April of 1995.
The District scheduling required parties Court’s order to con- duct a settlement conference March 1996. The settlement and, held conference was not when court noted that a settlement report filed, master had not been it ordered the parties to file a status report. report McKenzie’s status stated that the case was behind schedule, in part, inability provide because of his the complete requested. information Scheeler had McKenzie requested the court modify scheduling discovery, order to reopen originally completed by February 1, was to have been report Scheeler’s status outlined McKenzie’s failure to adequately production for of medical and financial documents. Scheeler also out that McKenzie pointed had failed to meet the contained in the deadlines court’s order for statements, lay serving expert Scheeler witness disclosure wit- Additionally, Scheeler reported ness lists and exhibit lists. had a settlement arranged conference or even master; nor had he proposed proposed settlement submitted pretrial order to Scheeler. Scheeler advised the District Court that he agree reluctant to extensions of the time frames set out in in the event the court requested frames, deadlines set which would specific extended those time be result in dismissal of the if not met McKenzie. the District Court set a light reports, hearing In of the status dis- regarding parties’ scheduling June McKenzie’s counsel admitted that agreements. hearing, At inadequate, had both late and responses been *5 experiencing but asserted that he was some in obtaining difficulties required the information because of McKenzie’sCanadian residency. granted The District Court McKenzie until August 1996, to the information Scheeler provide requested that, and stated if provide necessary by McKenzie failed to information that dead line, likely sanctions, it impose would which could include dismissal action, for failure comply scheduling of the to with the order under Rule M.R.Civ.P.The District Court further stated that Scheeler days have 10 after response object would to response insufficient a hearing 4,1996, scheduled for September to review the status of matters. It expressly also ordered present, personally McKenzie to be counsel, and with at the Septem 4, 1996, hearing. ber The Minutes and Note of Ruling following this hearing reiterated that granted 15, 1996, McKenzie was until August provide requested information and that sanctions could be by if he failed to imposed that date.
McKenzie delivered requested some of the documents to Scheeler 15, 1996, Thereafter, the August deadline. Scheeler timely filed a Insufficiency Objection “Notice of to Plaintiff’s Tender of Discov- ery” stating that McKenzie still produced had not the complete medical records and income tax requested. returns The notice also summarized McKenzie’scontinued failure provide full expert wit- statements, lay ness disclosure list, witness an list, exhibit proposed pretrial order suggested master, and a settlement as re- quired by original scheduling order. Scheeler pointed out that any explanation had offered for failing either the orders, or the court’s and requested that complaint. court dismiss the Neither McKenzie nor appeared his counsel at the September 1996, hearing as ordered the District Court. Scheeler’s counsel appeared objections and reiterated his to McKenzie’sfailure to com- ply original scheduling with the 26, 1996, the court’s June The order. District Court entered a Note of Ruling in which it complaint, dismissed McKenzie’s but specifically days allowed 10 within which McKenzie could move to set aside the dismissal order showing good on a cause for his failure to or appear; alternatively, hearing the court scheduled a for September which, if he appeared requested discovery documents, at with all the McKenzie could move to set aside the dismissal. appeared
McKenzie’s counsel at the hearing September 1996, and from the apologized prior hearing, stating for his absence that he had misread the notice September 4, 1996, hearing; McKenzie did not appear. McKenzie’s counsel then moved the District Court to set aside its complaint, dismissal ofthe asserting that there had been no violations of the order and diligent efforts, after reasonable and simply he had been unable to locate the additional documents requested Scheeler. The District Court subsequently entered written order dismissing the action prejudice for McKenzie’s failure re quests, pretrial court-ordered scheduling procedures and scheduling orders, and denying McKenzie’s motion to set aside the dismissal. 59(g),M.R.Civ.P., filed a Rule motion alter or amend the judgment dismissing complaint, denied, which the District Court appeals. and McKenzie
DISCUSSION Did the in dismissing District Court err McKenzie’scomplaint with prejudice failing comply discovery with procedures and sched- uling orders? long party’s
It has
been the law in Montana that a
abuse of
discovery
delay
procedures which results in needless
of a case should
leniently;
not be dealt with
transgressors
punished
should be
rather
patiently encouraged
cooperate
discovery
than
in the
process.
County (1996),
329, 332,
Smith v. Butte-Silver Bow
276 Mont.
916
91,
(citing
Buttrey,
(1981),
274,
P.2d
92-93
Owen v.F.A.
Co.
192 Mont.
1235).
277-78,
1233,
627 P.2d
related
Concerns
to crowded dockets
responsibility
judicial
and the
to maintain fair and efficient
admini
impose discovery-
stration have shifted the traditional reluctance to
judicial
Smith,
related sanctions to a
intolerance of
abuses.
Thus,
imposition
This Court
defers to the decision of a trial court
regarding
comply
discovery procedures
sanctions for failure to
with
position
parties
because the trial court is in the best
to know whether
rights of
disregarding
opposing parties
are
in the course of
and which sanctions for such conduct are most
litigation
appropriate.
Smith,
Roy Stanley
We have not
stated the standard for reviewing a
imposition
district court’s
of sanctions for failure to comply with a
M.R.Civ.P.,
16(b),
scheduling
observe, however,
Rule
order. We
by a
failing
scheduling
to abide
order constitutes a failure
procedure
with the rules of
as well as a failure to comply with a court
and,
instances, delays
timely
in most
resolution of the
In that regard,
action.
the District Court’s sanction for McKenzie’s
noncompliance with the
scheduling order was
the nature of a Rule
41(b), M.R.Civ.P.,dismissal for
prosecute
failure “to
or to
these rules or
order of court ....” Our standard in
reviewing
41(b)
court’s Rule
district
dismissal is whether the court abused its
Hobble-Diamond
Triangle
(1995),
discretion.
Cattle Co. v.
Irr. Co.
(citation omitted).
Here, determined the District Court that McKenzie failed to com- ply discovery procedures with both and its scheduling orders. On that basis, it dismissed McKenzie’scomplaint prejudice. We review the court’s determination of noncompliance and the pro- priety of its dismissal sanction in turn.
NONCOMPLIANCE above, As stated the District Court determined that McKenzie had discovery procedures failed to with both and the court’s arguments orders. Wefirst address McKenzie’s regarding the court’s determination that complied he had not procedures, then address his arguments regarding his noncompli- ance with the orders. *7 Noncompliance discovery
a. procedures regard With to the District Court’s determination that McKen zie’snoncompliance discovery was an abuse of procedures, McKenzie first asserts that failure part respond on his adequately to discovery requests was not an intentional trial strategy. On that basis, that noncompliance he contends his did not rise to the level of discovery procedures abuse of sufficient under our case law to war imposition rant of sanctions. (N.A.) Billings (1986), It is true that in First Bank v.Heidema — “ example, ‘[w]hen
219 Mont. 711 P.2d we stated that delay, use court litigants responses, disregard willful evasive and 508 parcel strategy, they of their trial must suffer part direction as ” Bank, Owen, at 1386 consequences.’ (quoting First 711 P.2d 1236). However, clear Bank equally it is First
P.2d at Owen, delay” only examples one ofthree ofconduct stated “willful Moreover, to warrant sanctions. sanctions abuse to be sufficient unresponsive in order to deter discovery procedures imposed are action; unresponsiveness it in an attitude parties attitude, of the intent behind that regardless judicial process, See, 78; at v. e.g., Huffine, 782 P.2d Landauer warrants sanctions. 322, 325, 839, 841; 732 P.2d Audit (1987), 225 Mont. Kehrwald Const., (1980), 94, 102, Mont. 615 P.2d v.Kraus Inc. Services 187-88. case, responses McKenzie’s initial to Scheeler’s
In this 33(a) M.R.Civ.P.,and, untimely 34(b), under Rules requests were addition, incomplete Despite or erroneous. assurances were either existed and would be requested information to Scheeler finan- complete McKenzie failed to deliver medical and forthcoming, eventually re- granted Court The District cial records. respond to the of time in which to for an extension quest including dismissal—could warned that requests, but sanctions — did More- comply. continued. McKenzie not noncompliance if result appear hearing his counsel failed to at the over, McKenzie and both 4, 1996. September set for he appear September McKenzie’s counsel did
When Instead, discovery. attempted he produce requested did not still by raising arguments new justify noncompliance by Scheeler was unavailable and that requested information directly contrary unreasonable. These assertions were were the information existed and assurances that previous to McKenzie’s Moreover, support McKenzie’scounsel did not produced. would be other evidence estab- any testimony, affidavits or arguments Unsupported unavailable. documents were lishing requested that the evidence and do not establish counsel are not arguments of See, e.g., Montana Metal argued. that are of the matters existence 471], (1997), Mont. 942 P.2d Shapiro [283 Buildings, Inc. v. respond adequately failed to to Scheeler’s repeatedly addition, with the District In he did
discovery requests. discovery requests and in full to those order that he Court’s The record justification noncompliance. for his no reasonable offered unresponsiveness attitude of clearly ongoing reflects an
509 authority and of the procedures disregard part court’s on McKenzie’s throughout the this course of action. argues pursuant 26(e), M.R.Civ.P.,
McKenzie also to Rule he previous discovery to or amend his supplement was allowed re at that sponses prior time trial and the District Court’s to comply discovery procedures by determination that he failed with complete responses to providing discovery requests Scheeler’s effectively argument nullified Rule. that McKenzie’s is without merit. 33(a) 34(b),
First, M.R.Civ.P.,require party respond Rules a interrogatories requests production full, objected in unless to, days being interrogatories served with requests. within or 26(e) interpretation Rule Accepting effectively McKenzie’s would nullify duty by allowing party drag that a out the discovery process indefinitely through continuous “supplementing” previous re fashion, in a sponses piecemeal fully without ever responding interrogatory production. request 26(e).
Second, misapprehends the nature of Rule Rule 26(e), M.R.Civ.P., addresses limited circumstances under which a who has to a party responded discovery request “with a response complete that when made ...” supplement complete must that case, In the it response. present undisputed is that McKenzie’sinitial discovery responses Thus, Scheeler’s were not complete. 26(e), M.R.Civ.P., inapplicable Rule is here. repeatedly fully
We conclude that McKenzie failed to timely discovery requests propounded Scheeler and that the in District Court did not err determining noncompli- discovery procedures. ance was an abuse of Noncompliance b. with scheduling orders McKenzie also contends that the District Court erred in determining that he failed to its scheduling orders. In case, scheduling orders at this issue consist of the June original 26, 1996, scheduling and the extending order June order respond fully which McKenzie deadline was to discovery-related While the June order requests. order fully it long-pend in that ordered McKenzie to to Scheeler’s it also ing requests, scheduling constitutes order District Court made a limited modification of the 16(b), original scheduling deadline contained in the order. See Rule M.R.Civ.P. 16(b), M.R.Civ.P., district enter a provides
Rule that a court shall delineating order in each case time frames within completed will be The pretrial parties. which all matters duly June Court entered this action on District undisputed and it is that McKenzie failed to *9 scheduling required provide of the order which him to portions those list, list, lay an a witness expert Scheeler with exhibit witness statements, proposed pretrial suggested order and a disclosure settlement master. however, asserts, that, the court the
McKenzie because amended scheduling order, impossible in it was for him to time frames the At the June disagree. with the schedule deadlines. We comply original the hearing, by District Court extended deadline which 26,1996, the fully required respond was to to Scheeler’s earlier discov- McKenzie 15,1996. any did not the until The court extend ery request August in the order. Absent original scheduling deadlines contained other deadlines, original the other McKenzie’sfailure such an extension of expert exhibit lists and witness to Scheeler with witness and provide a continuing constituted violation ofthe court’s disclosure statements original scheduling order. time re-
Moreover, granted at the District Court McKenzie’s the deadline, the discovery an of the other deadlines quest for extension Thus, original scheduling passed. order had McKenzie set in the exten- failed with those deadlines. The court’s already had to discovery respond the time which McKenzie was sion of already no on the fact that McKenzie had failed bearing had requests list, expert an exhibit list and Scheeler with witness provide deadlines, and originally the set disclosure statements witness 1996, after the made effort to even June no apparently only extending one—and one—deadline. order extending Additionally, June the District Court’s was to Scheeler’s time in which McKenzie the 4, 1996, September appear McKenzie to requiring requests also essence, a order with which McKenzie was, revised fully comply. responded He neither failed to at subsequent appeared deadline nor August did not its discre- the District Court abuse We conclude that hearing. schedul- with its McKenzie failed determining that tion in ing orders.
REVIEW OF SANCTION IMPOSED determining After that had McKenzie committed abuses, the Court District dismissed com- prejudice. We review the plaint court’s dismissal sanction to Smith, determine whether court its discretion. abused 916 P.2d at not contend does that District Court lacked author-
ity Indeed, to impose the sanction of dismissal. Rules 16 and M.R.Civ.P., provide authority the District Court with impose 16(f),M.R.Civ.P., that, the dismissal sanction. Rule provides party if a obey scheduling order, may fails to the court make such orders as just, including the are dismissal sanction authorized Rule 37(b)(2)(C), Additionally, 37(b)(2), M.R.Civ.P. Rule M.R.Civ.P., pro- an party obey vides if a fails to order to provide discovery, “(C) may just, such including court make orders are [a]n as order ... dismissing the action....” however, argues, noncompliance part on his did imposition warrant of sanctions at all and if sanctions warranted, the
were court’s dismissal of with prejudice too under extreme these circumstances.
a. of Imposition sanctions McKenzie asserts that he not should have been sanctioned not for the complying original scheduling with order because the District 26, 1996, directing comply Court’s June order him to with Scheeler’s did him require comply not also to the with original scheduling the order and court did warn not him that imposed sanctions would be if did not with comply scheduling he the We disagree. order. 30,1995, scheduling
The June order anwas order of the court which, by terms, required comply its McKenzie to with the all of therein, thereafter, deadlines set forth at all times unless modified good 16(b), the court a upon showing of cause. Rule M.R.Civ.P. continuing McKenzie had a to with obligation comply scheduling the merely obligation evaporate order and that did not because the passed in the being deadlines set out order had without met. 16(f), Moreover, though M.R.Civ.P., provides which that even Rule may obey to impose scheduling district court sanctions for failure a a order, require given comply does that be offailure party not notice to it imposed, that sanctions could be is clear that McKenzie did have or filed the in June report, hearing notice. Scheeler’s status before such failure meet the dead- 1996, summarized McKenzie’s to various of that, event scheduling requested set out in the order in the lines originally deadlines, any extended the scheduled the court comply to with the new deadlines should result failure McKenzie complaint. granted the District Court dismissal of the When in respond time it requests, additional the McKenzie that the extended deadline could result comply failure with warned for with a complying scheduling a Rule sanction order in likely most would consist of dismissal of his that such sanction Further, insufficiency subsequent Scheeler’s notice complaint. —to also did not McKenzie’s non- McKenzie which —reiterated original scheduling the order and the requested compliance dismissing complaint. Court enter an order District original he in with the compliance clear notice that was not had considering that scheduling possibility order and the court noncompli- dismissal of action—if specifically, of sanctions— continued. ance required that Scheeler was to file a
McKenzie also asserts imposition ofsanctions for failure to requesting motion discovery requests and the orders before sanction, impose any and that Scheeler failed Court could District this is premise in case. McKenzie’s foundational file such motion M.R.Civ.P., party if a fails to 16(f), provides Rule flawed. 16(b) order, may the court such impose Rule awith its no just requirement as own initiative. It contains sanctions are imposition such sanctions. party that a move procedures, As to McKenzie’sfailure to As governed by Rule M.R.Civ.P. conduct are sanctions such M.R.Civ.P., 37(b)(2), party above, provides “[i]f Rule discussed discovery,... the court obey provide permit order to fails to an ... may regard make such orders pending action requirement opposing It no an just... are .” contains failure as Here, specific the District Court entered a move for sanctions. party provide discovery requiring on June order June *11 1996. The August to Scheeler responses 37(b)(2), discovery” ... under Rule therefore, was, provide “an Thus, Rule that order. did McKenzie not M.R.Civ.R court McKenzie M.R.Civ.P., the to sanction 37(b)(2), authorized noncompliance. We that the Court conclude District did not abuse its discretion in determining noncompliance that McKenzie’s with the scheduling orders discovery procedures and warranted the of imposition sanctions.
b. Dismissal sanction
First,
argues
McKenzie
the District Court erred in
relying
support
on Dassori as
of
for dismissal
the
complaint
the
present
clearly distinguishable
case. He contends that Dassori
pattern
“[t]here
because
was no
in this case
either
type
of
the
or extent
dilatory
‘tactics’ referred to in Dassori.”
disagree.
We
Dassori,
In
the plaintiff requested and received an additional
interrogatories
month in which to answer
previous
served on him the
plaintiff
respond
month. The
failed to
within the extended time.
Dassori,
later,
In Scheeler served requests his on McKenzie on April object 1995. McKenzie did not request an extension of the respond, respond time which to and did not at all 13,1995. Moreover, until tardy November his responses were incom- plete. later, deposition, Two months during McKenzie stated that produce he would additional financial and medical records for Scheeler, but he until produced nothing produc- June and his incomplete. Eventually, tion of at that time documents also District Court set hearing parties’ discovery to discuss the at disagreements, granted which the court discovery requests. additional time to McKenzie still comply, failed to both despite assurances Scheeler and District Court that requested documents existed were available. Finally, seventeen months after Scheeler served the initial McKenzie, court dismissed McKenzie’s discovery procedures failure orders. pattern The reveals a of conduct present case to, throughout proceedings comparable at least if more *12 Dassori, In the than, us in dismissal egregious before Dassori. delay from a in plaintiff’s of the resulted twelve-month delay discovery responses. Here, the was sixteen months. providing Dassori, pro- Furthermore, plaintiff unlike the McKenzie never discovery requests. On the complete responses to Scheeler’s duced alone, provides abuses Dassori suffi- basis of McKenzie’s authority for the Court’s dismissal of the complaint. cient District Moreover, discovery abuses, his McKenzie also failed in addition to out original to with the deadlines set court’s at a attorney appear hearing and he his both failed to and He failed ordered them attend. also specifically court fully him to to the requiring with the court’s order justification and no reasonable for failure provided requests provides of the District Court’s orders disregard McKenzie’s comply. for the court’s determination that support additional significant appropriate. sanction of dismissal was above, to the of generally this Court defers decision
As discussed controlling proce- for abuses of regarding a court sanctions district position is in to know which rules that court the best dural because of See appropriate under the circumstances the case. sanction is most sanction, the is an extreme Smith, 916 P.2d at While dismissal disregard a abuses and pattern record before us indicates McKenzie throughout litigation the course of this of court orders delayed any pro- effectively discovery process halted the and which resolving action. gress toward record, that the abysmal this McKenzie contends
Notwithstanding
dismissing
complaint.
abused its discretion in
District Court
he
at least some of
First,
argues
produce
he
because
did
substantially
made a
faith effort
good
documents and
requested
discovery,
imposed
the court should have
requested
with the
requests
pro-
than
Scheeler’s
extreme
dismissal.
sanction less
any injury
requests
regarding
for medical records
duction included
prior to the
which McKenzie suffered
or medical condition from
injuries
9, 1992, accident;
relating
any
medical records
December
accident; records
a result ofthe
claimed to have suffered as
McKenzie
accident;
as a result ofthe
incurred McKenzie
expenses
ofmedical
receipts for
medications
prescriptions
and
copies
accident;
copies
year
to the
during
prior
purchased
used
ten-year period.
tax returns for
of his income
regarding what
altogether
is not
clear
before us
While
record
he
extent to
by McKenzie or the
produced
were
documents
discovery requests,
appears
with the
it
complied
McKenzie’s
responses
production
initial
consisted oftwo letters
doctors,
charge
from
a credit card
slip
incomplete tax records
years.
covering period
of four
The additional documents produced
4,1996,
apparently
McKenzie on June
consisted of
two letters
forms
relating
employment history
several
two
trucking companies,
signed by
a letter
Donna
stating
Mrs.
that McKenzie was disabled and in bed between June and November
unspecified year,
printout
and a computer
of some
from a physical
therapy clinic listing the dates on which McKenzie visited the clinic.
Finally, McKenzie apparently produced tax returns for a portion of
period requested,
reports
the time
two medical
computer
and a
printout
physician during
July
visits to a
June and
of 1993.
*13
Considering the limited
of
documents
record and the absence
any
affidavits
testimony,
of
or other
detailing
evidence
the efforts
may
to procure
McKenzie
have made
additional
or the
documents
any inability
procure
documents,
reasons
such
we are reluctant
were, indeed,
to determine whether McKenzie’sefforts
in
faith
good
ready,
and substantial. When this Court cannot make a
confident and
party’s
accurate determination of a
good
compliance
faith
with
discovery process,
presume
we will
the correctness ofa district court’s
(citations
in imposing
Landauer,
action
sanctions.
Finally, that, contrary McKenzie asserts to the requirements Smith, in set forth dismissal of his inappropriate was because there was no indication that his failure with comply discovery procedures preju or the scheduling order resulted in regard, dice to Scheeler. In this we in Smith “[t]he stated extent ‘consequences’imposed by of the court district ... should relate to discovery and nature the actual abuse of extent of and the extent party Smith, to the prejudice opposing results therefrom.” at 97. 916 P.2d accident at in this case in 1992
The issue occurred December of complaint against filed his Scheeler in December of and McKenzie interrogatories 1994. Scheeler served and subsequently 17,1995. of the seven- April following Over the course production months, re- continuously provide complete McKenzie failed teen for his discovery requests justification to the and offered no sponses 516 fully; comply he also failed to with a court order
failure to him to Scheeler. provide complete responses requiring complaint, McKenzie’s Thus, the District Court dismissed when years accident and two had years passed had since the nearly four time, period In that complaint. he filed his elapsed since information Scheeler with the most basic provided had not still injuries, pain and suf- personal his various claims for documenting information, such wages. and lost Without fering, expenses medical for, assessing developing from the bases prevented Scheeler McKenzie’sclaims. against, a defense discovery essentially provide prevents
Such a refusal availability reason for the precise and is progressing case from In re Marriage to Rule M.R.Civ.P. See pursuant sanctions P.2d 1344. When a (1987), 225 Mont. Massey effectively halts discovery procedures failure to party’s impermissible prejudice it results in discovery process, omitted). (citation Bank, First 711 P.2d at party. See opposing was, discovery procedures Thus, failure to itself, to Scheeler. prejudicial finding regarding Moreover, the District Court made no while by McKenzie’s prejudiced had been to which Scheeler the extent orders, it discovery procedures and failure it characterized as noncompliance, which clearly found McKenzie’s continuous,” as to warrant to be so extensive repeated “flagrant, ignored agree. repeatedly We right. in its own a dismissal Although court orders. disregarded governing the rules opposing party to an prejudice abuse and the extent of the determining appropriate an to be considered are both factors *14 authority an the court’s orders and is sanction, disregard of party’s case, continuous discov In this McKenzie’s consideration. additional judicial process abuses, unresponsive attitude toward ery his with the authority, combined the District Court’s disregard his of of Scheeler, clearly warranted sanction prejudice inherent did not abuse its that the District Court We conclude dismissal. prejudice as complaint McKenzie’s dismissing discretion sched discovery requests and for his failure sanction uling orders. denial of McKenzie’s the District Court’s
Finally, address we dismissing complaint amend its order motion to alter or the court with present McKenzie’sfailure based, part, comply with the court’s failure to his continued justifying reason orders. Our standard of review of a district court’s denial of a motion to alter amend is whether the court abused its discretion. Estate (1994), Nielsen v. Pardis Mont. 878 P.2d light
In of our conclusion that the District Court did not abuse its discretion in dismissing the we complaint, further conclude that the court did not abuse its denying discretion in McKenzie’s motion to alter or amend the order of dismissal. Wehold that the District Court dismissing did not err in complaint with prejudice based on his failure to with discovery procedures and scheduling orders.
Affirmed. NELSON,
JUSTICES REGNIER and HUNT concur. LEAPHART, JUSTICE dissenting.
I concur with the conclusion that McKenzie’s failure timely requests constitutes noncompliance with procedure both the rules of and the court’s scheduling I order. further agree that the court did not abuse its discretion in determining that McKenzie’sconduct was I hold, however, sanctionable. would that the District Court abused its discretion in its sanctions; is, choice of in dismissing prejudice.
The Court notes that a dismissal for failure to comply with a Rule
16, M.R.Civ.P.,scheduling order is akin to a dismissal for failure to
prosecute
41(b),
under Rule
M.R.Civ.P.The Court cites our decision
in Hobble-Diamond Cattle Co. v. Triangle Irr. Co. (1995), 272 Mont.
37, 40, 899
41(b)
P.2d
for the proposition that we review Rule
dismissals for an abuse of discretion. As noted in Hobble-Diamond,
“we have established four factors to be considered in determining
whether a district court abused its discretion in dismissing an action
1)
41(b),
under Rule
plaintiff’s
M.R.Civ.P.:
diligence in prosecuting
2)
claim;
3)
prejudice
the defense caused
plaintiff’s delay;
4)
availability
sanctions;
of alternate
existence of a warning that
danger
the case is in
Hobble-Diamond,
dismissal.”
Accordingly,
only
the fact that the
addressed, combined with
have
we
as others
presumed
from
prejudice
was the
the defendant
prejudice
Court consider
that the District
itself,
require
I would
delay
of dismiss-
invoking the extreme sanction
before
sanctions
alternate
and must remain the
imposed sparingly
should be
“[D]ismissals
al.
Hobble-Diamond,
In