Larry W. MONSON, Stephanie L. Monson and Mary E. Monson, Plaintiffs-Appellants-Petitioners, v. MADISON FAMILY INSTITUTE and St. Paul Fire & Marine Insurance Company, Frank Coogan, Molly Allison, Joyce Nourse and Dr. Stanley Miezio, Defendants-Respondents.
No. 89-0314
Supreme Court of Wisconsin
June 5, 1991
Submitted on briefs February 27, 1991.
470 N.W.2d 853
For the defendant-respondent, Dr. Stanley Miezio the cause was submitted on the brief of John A. Nelson and von Briesen & Purtell, S.C., Milwaukee.
For the defendants-respondents, Madison Family Institute, St. Paul Fire & Marine Insurance Company, Frank Coogan, Molly Allison, Joyce Nourse, the cause was submitted on the brief of John W. Markson, David J. Pliner and Bell, Metzner, Gierhart & Moore, S.C., Madison.
LOUIS J. CECI, J. This case is before the court on petition for review of an unpublished decision of the
One issue is presented by this review: whether the circuit court abused its discretion by dismissing the plaintiffs’ claims for failure to prosecute. We hold that the circuit court did not abuse its discretion by dismissing the plaintiffs’ claims because the record contains a reasonable basis for the circuit court‘s determination that the plaintiffs’ conduct was egregious and that there was no clear and justifiable excuse for the plaintiffs’ conduct.3
The material facts relevant to this review are not in dispute. On March 25, 1987, the plaintiffs commenced an action against the defendant Madison Family Insti-
On May 6, 1987, Madison Family Institute moved the circuit court to dismiss the plaintiffs’ complaint for failure to state a claim upon which relief can be granted.4 On September 15, 1987, the plaintiffs moved the circuit court to stay further proceedings on the motion to dismiss in order to allow them to amend their complaint. The plaintiffs contended that amendment of the complaint was necessary given newly discovered information which materially affected the merits of Madison Family Institute‘s motion to dismiss. On October 2, 1987, during a telephone conference, the court orally granted the plaintiffs’ motion to stay proceedings on the motion to dismiss and ordered the plaintiffs to amend their complaint by October 23, 1987.5
During the same telephone conference, the court also informed the parties that it would issue a preliminary scheduling order. On October 5, 1987, the court issued a preliminary scheduling order which, among other things, required all additional parties to be joined or impleaded within 60 days of the order and all interrogatories to be served at least 40 days prior to the pretrial conference set for January 13, 1988.
The plaintiffs failed to amend their complaint by October 23, 1987, as required by the circuit court‘s order of October 2, 1987. On December 4, 1987, the eve of the deadline set by the preliminary scheduling order for join-
The pretrial conference was held on January 13, 1988. The plaintiffs failed to file the required pretrial conference statement. At the pretrial conference, the court granted the plaintiffs’ motion to modify the preliminary scheduling order. The pretrial order granted the plaintiffs an extension until January 29, 1988, to amend the complaint and to implead and serve additional parties. The pretrial order also set the matter for trial on June 6, 1988.6
The plaintiffs did not file their amended complaint until February 19, 1988, 21 days after the court‘s deadline. The amended complaint joined the following defendants: Frank Coogan, Molly Allison, Joyce Nourse, and Dr. Stanley Miezio (hereinafter, defendants Coogan and Allison will be included in the references to Madison Family Institute). However, Dr. Miezio was not served until April 18, 1988, nearly three months after the court‘s deadline to join additional parties. The plaintiffs’ amended complaint added claims of breach of fiduciary duty, interference with parent/child relationship, and defamation.
On March 28, 1988, Madison Family Institute filed its answer to the plaintiffs’ amended complaint which
By order entered May 25, 1988, the circuit court dismissed all the claims against Madison Family Institute except Larry Monson‘s claims for defamation and invasion of privacy and Stephanie and Mary Monson‘s claims for negligent diagnosis and treatment. At the motion hearing, plaintiffs’ counsel indicated to the court that he would dismiss defendant Nourse because he had not served her within 60 days of joining her as a party. The record shows that defendant Nourse was never dismissed from this action. The court sua sponte removed the case from the June 27, 1988, trial calendar due to the belated joining of Dr. Miezio as a defendant.
On May 27, 1988, defendant Dr. Miezio moved the court to dismiss the plaintiffs’ claims against him. Dr. Miezio argued that Stephanie and Mary Monson‘s negligence claims and Larry Monson‘s defamation and invasion of privacy claims were barred by the applicable statute of limitations. Dr. Miezio further argued that the plaintiffs’ remaining claims should be dismissed for failure to state a claim upon which relief may be granted—the same reason they were dismissed against Madison Family Institute.
On June 15, 1988, the circuit court heard Dr. Miezio‘s motions. By order dated June 27, 1988, the circuit court dismissed all the plaintiffs’ claims against Dr. Miezio, except Larry Monson‘s claims for defamation and invasion of privacy,7 and ordered the plaintiffs to “submit a Second Amended Complaint not later than
The record shows that the circuit court required the plaintiffs to amend their complaint because, as plaintiffs’ counsel appeared to concede, the complaint did not state the plaintiffs’ claims with sufficient clarity to enable the defendants to defend against the action. Furthermore, the complaint did not clearly state which claims were being asserted against each defendant.
The plaintiffs never amended the complaint as required by the circuit court‘s order of June 27, 1988. On July 14, 1988, two weeks after the court‘s deadline for the plaintiffs to file a second amended complaint, Dr. Miezio‘s counsel wrote to plaintiffs’ counsel to request that the complaint be amended or his client be dismissed from the action. In response, plaintiffs’ counsel advised Dr. Miezio‘s counsel that he would be in contact with him the week of July 25, 1988.
The record shows that plaintiffs’ counsel did not contact Dr. Miezio‘s counsel as promised. On September 1, 1988, two months after the court‘s deadline to file the second amended complaint, Dr. Miezio‘s counsel again wrote to plaintiffs’ counsel, requesting the dismissal of his client or the filing of the amended complaint within one week. In the same letter, Dr. Miezio‘s counsel advised plaintiffs’ counsel that “I will have to file an appropriate motion should you fail to either dismiss my client or replead the complaint . . . .”
The record shows that the plaintiffs never amended their complaint. The record also shows that the plaintiffs never responded to a request for production of documents from Dr. Miezio‘s counsel dated May 4, 1988.8
The plaintiffs did not respond to either motion in any fashion other than appearing at the motion hearing on December 14, 1988. The court granted the defendants’ motion for summary judgment for two reasons. First, the plaintiffs did not clarify their theory of recovery by filing an amended complaint. Therefore, the circuit court concluded that the defendants were not able to defend against the action because the complaint did not clearly state the nature of the plaintiffs’ claims and which claims were being asserted against each defendant. Second, the plaintiffs relied on the pleadings and did not file any affidavits, depositions, or answers to interrogatories to counter the defendants’ affidavits. Therefore, there were no material issues of fact.
After orally granting the defendants’ motion for summary judgment, the circuit judge stated that he would deny any motion that might be brought by the plaintiffs to amend the complaint to permit the case to
The circuit judge did not base his conclusion merely upon the plaintiffs’ failure to file the second amended complaint as required by his order of June 27, 1988. Rather, the circuit judge based his decision upon a review of the entire record, including the following undisputed facts: the plaintiffs failed to meet two other deadlines to amend the complaint; the plaintiffs joined Dr. Miezio 20 days after the deadline set for joining additional parties; the plaintiffs delayed in serving Dr. Miezio, in violation of the scheduling order, resulting in the case being taken off the trial calendar for June 27, 1988; the plaintiffs failed to serve Dr. Miezio with a copy of the scheduling order as required by the terms of said order; the plaintiffs’ brief for the April 29, 1988, motion to dismiss hearing was filed late; the plaintiffs failed to respond to Dr. Miezio‘s request for production of documents; the plaintiffs had not conducted any discovery in the 21 months since the complaint was filed; and the plaintiffs failed to respond in any fashion to the motion to dismiss for failure to prosecute and the motion for summary judgment other than appearing at the motion hearing.10
The circuit court reasoned that it had to balance the plaintiffs’ interests in having the case go forward with
In reaching its conclusion, the circuit court rejected plaintiffs’ counsel‘s excuses for failing to prosecute the case. The circuit court rejected plaintiffs’ counsel‘s excuse that he experienced difficulty in obtaining cocounsel because the court concluded that the press of business is not cause for excusable neglect. The circuit court rejected his excuse that the case presented novel and difficult legal theories because the facts that gave rise to the plaintiffs’ claims were not complicated. The circuit court also rejected plaintiffs’ counsel‘s excuse for not conducting formal discovery—that he was conducting an informal investigation—because the court thought that if a private investigation was going to bear fruit, it would have done so in 21 months.
By order dated December 28, 1988, the circuit court granted the defendants’ motions to dismiss for failure to prosecute and summary judgment, dismissing the complaint and amended complaint filed against the defendants. The plaintiffs appealed from the judgment of the circuit court dismissing the action. Before the court of appeals, the plaintiffs argued that the circuit court abused its discretion by dismissing their claims because the circuit court did not and could not find that the plaintiffs acted egregiously or in bad faith. The plaintiffs further argued that the circuit court improperly imputed
The court of appeals held that the circuit court did not abuse its discretion by dismissing the plaintiffs’ claims for failure to prosecute and vacated the circuit court‘s grant of summary judgment because the dismissal for failure to prosecute completely disposed of the matter. The court of appeals concluded that the circuit court did not abuse its discretion by dismissing the plaintiffs’ claims for four reasons. First, the circuit court implicitly found that plaintiffs’ counsel‘s conduct was egregious and in bad faith. Second, plaintiffs’ counsel demonstrated no clear and justifiable excuse for the delays. Third, the delays prejudiced the defendants’ interests and the court‘s goal of the efficient administration of justice. Fourth, the circuit court did not abuse its discretion by imputing to the plaintiffs the omissions of their counsel, even though the plaintiffs were not responsible for the delays, because the circuit court balanced the interests of the plaintiffs and the defendants before imputing the omissions of plaintiffs’ counsel to the plaintiffs.
The plaintiffs petitioned this court for review of the decision of the court of appeals. We granted the petition along with petitions in two other cases involving dismissals for failure to prosecute, Schneller v. St. Mary‘s Hospital Medical Center, 162 Wis. 2d 296, 470 N.W.2d 873 (1991) and Johnson v. Allis Chalmers Corp., 162 Wis. 2d 261, 470 N.W.2d 859 (1991).
The case at bar does not present either of the situations in which dismissal for failure to prosecute constitutes an abuse of discretion. The plaintiffs’ numerous failures to comply with court-ordered deadlines and other omissions, set forth above at 221, are a reasonable basis for the circuit court‘s implicit determination that the plaintiffs’ conduct was egregious.
Furthermore, the plaintiffs have not established a clear and justifiable excuse for their numerous delays. The circuit court properly concluded that the inability to obtain co-counsel and the complexity of the legal issues involved in a case are not clear and justifiable excuses for almost two years (21 months) of delay. For example, the
By the Court.—The decision of the court of appeals is affirmed.
SHIRLEY S. ABRAHAMSON, J. (dissenting). For the reasons set forth in my concurring opinion in Johnson v. Allis Chalmers Corp., 162 Wis. 2d 261, 470 N.W.2d 859 (1991), I would reverse the order, Carter v. Albert Einstein Medical Center, 804 F.2d 805 (3d Cir. 1986), or at least remand this case to the circuit court, Dunbar v. Triangle Lumber and Supply Co., 816 F.2d 126 (3d Cir. 1987), to hold a hearing giving the plaintiffs notice and opportunity to be heard, and to determine the appropriate sanction considering the extent of the plaintiffs’ personal responsibility for counsel‘s failure to follow court orders.