The plaintiff-appellant is the special administrator of the estate of Elsie E. Trispel who died in
The plaintiff-appellant’s original complaint was served on April 2, 1976 and amended on June 21, 1976. The following day the court ordered the amended complaint against Kohl’s Food Stores dismissed but granted the plaintiff-appellant leave to amend so as to make the complaint more definite and certain and stating a cause of action. A second amended complaint was then served on June 25, 1976. The court held a pre-trial conference on October 7, 1976, attended by the parties’ respective counsel. In a letter memorandum order dated October 7, 1976 the trial court summarized the matters discussed and agreed upon at the pre-trial conference. The letter reflects that the court ordered the plaintiff-appellant to:
(1) post security bond without delay.
(2) submit authorization for the release of medical, doctor and hospital records by October 15, 1976.
(3) produce a medical report establishing a causal connection between the accident referred to in the complaint and the decedent’s death no later than December 15, 1976.
(4) submit an itemized claim for pecuniary loss. The pre-trial order also required that all discovery be completed by March 15, 1977 in order for the parties to prepare for the scheduled trial of May 31, 1977. Further,the order explicitly stated that “A motion to dismiss is contemplated and will be undoubtedly filed” and “There will be no deviation from this order except on proper motion.”
On February 28, 1977 the defendants-respondents served a motion for dismissal for failure to comply with the pre-trial order concerning the plaintiff’s failure to file a medical report and to post the security. The plaintiff-appellant then requested leave of the court to amend his complaint to remove all claims of damages for wrongful death and rely solely on a claim for pain and suffering. At a hearing on March 21, 1977 the plaintiff-appellant’s attorney stated that the deceased’s treating physician had been seriously ill and thus he was unable to provide the report as ordered. In an order dated March 29, 1977 the trial court denied the motion to amend the complaint for a third time and granted the defendants-respondents’ motion to dismiss the action. The trial judge stated his reasoning for the order of dismissal was the plaintiff-appellant’s “inexcusable failure to comply with the pre-trial order and belated attempt to shift the theory and nature of this action by the recently filed motion to amend the complaint.”
Issues
1. Did the trial court abuse its discretion by not granting leave for the plaintiff-appellant to amend his complaint for the third time some 3% months after the final date for the production of evidence pursuant to the court’s pre-trial order of October 7,1976?
2. Did the trial court abuse its discretion in dismissing the plaintiff’s action with prejudice in accordance with sec. 805.03, Stats?
The plaintiff-appellant has alleged that the trial court abused its discretion in refusing to grant leave “to conform his pleadings to his proof.” The plaintiff-appellant,
The amendment of pleadings is provided in sec. 802.09, Stats., and reads as follows:
“Sec. 802.09(1) (1975). AMENDMENTS. A party may amend his pleading once as a matter of course at any time prior to the entry of the scheduling order provided in s. 802.10(1). Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be given freely when justice so requires. ... At any stage of the action, the court may allow amendment of any process or proceeding if justice requires it.” (Emphasis supplied.) 1
This court recognizes the statutory intent in sec. 802.09 (1975) allowing a one-time amendment of the pleadings before the scheduling order and further providing for an amendment only by leave of the court where justice requires, or written consent of the adverse party. In
Celmer v. Quarberg,
However, in this case, the liberal attitude toward granting leave for the amendment of pleadings must be balanced against the court’s concern for the orderly administration of justice. Thus, we examine the question of whether or not the court abused its discretion in dismissing the appellant’s complaint for failure to comply with the pre-trial orders including the required production of a medical report establishing the causal connection between the alleged fall and Mrs. Trispel’s death.
The trial court granted respondents’ motion for dismissal pursuant to sec. 805.03, Stats., which reads:
“For failure of any claimant to prosecute or for failure of any party to comply with the statute governing procedure in civil actions or to obey any order of the court,the court in which the action is fending may make such orders in regard to the failure as are fust, including but not limited to orders authorized under sec. 804.12(2) (a). Any dismissal under this section operates as an adjudication on the merits unless the court in its order for dismissal otherwise specifies for good cause shown recited in the order.” (Emphasis supplied.)
Authoritative commentaries in review of sec. 805.03 sanctions point out that a dismissal of an action for failure to comply with a pre-trial order should rarely be granted. The Judicial Council Committee’s Notes accompanying the statute state that “. . . Because of the harshness of the sanction, a dismissal under this section should be considered appropriate only in cases of egregious conduct by a claimant.” W.S.A. sec. 805.03 at p. 414 (1974), In Graczyk, “Wisconsin Rules of Civil Procedure, Chapters 805-07 . . .” 59 Marq. L. Rev. 671, 675 (1976) it is further stated:
“Although the section allows dismissal for non-compliance with even the most trivial procedural . . . orders, a dismissal with prejudice should be granted only in extreme circumstances.”
The appellant argues that the dismissal was an abuse of discretion for two reasons: first, there was good cause for his failure to comply with the pre-trial order for production of the medical report and; second, that his due process right to notice was violated as he was not informed that his failure to comply with the pre-trial order could result in a dismissal of the action.
In making the claim that there was good cause for his noncompliance, the appellant argues that it was impossible for him to produce the medical report because of the serious illness of Mrs. Trispel’s treating physician.
The principle is firmly established that in order to demonstrate that a dismissal order based upon the failure to prosecute was an abuse of discretion, the aggrieved party must show “a clear and justifiable excuse” for the delay.
Taylor v. State Highway Comm.,
“It is considered well established that a court has the inherent power to resort to a dismissal of an action in the interest of the orderly administration of justice. The general control of the judicial business before it is essential to the court if it is to function.” Id. at 314.
A recent decision closely parallels the present case wherein the court considered a plaintiff’s failure to produce an allegedly defective tie-rod for defense analysis. In
Furrenes v. Ford Motor Co.,
The court in Furrenes further stated that the information, although relevant as to the appropriateness of the penalty imposed for non-compliance, did not “alter or explain the reasons for non-compliance prior to the passage of the court-set deadline for production.” Id at 264. In other words, the other “possibly extenuating circumstances” did not erase the fact of non-compliance or the failure to seek an extension or modification of the order before the deadline had passed. The court concluded that the plaintiff’s actions in failing to comply with the court order for the production of the evidence or to offer a timely explanation for his failure amounted to bad faith. The court stated the following, indicating that a dismissal of the complaint on its merits is a warranted sanction for a party’s bad faith failure to comply with a court order:
“If matters of expediting court proceedings and assuring proper and prompt administration of justice are to be more than mere matters on the agenda at judicial or bar association workshops, the lead of the nation’s high court is to be followed in upholding dismissals on the merits where, as the trial court found in the National Hockey League Case, and we see in the case before us, there has been a ‘callous disregard of responsibilities’ owed by plaintiff and plaintiff’s counsel to the court and to the adversary parties.” Id. at 267.
In the instant case there is no information in the record nor affidavit on file showing a clear and justifiable excuse for plaintiff’s counsel’s failure to comply with the pre-trial order of October 7, 1976 directing the filing of a medical report concerning the causal connection between the alleged accident and Mrs. Trispel’s death. At the hearing on the motion to dismiss, March 21, 1977, the
We hold the trial court’s order dismissing the appellant’s claim was not an abuse of discretion in light of the plaintiff’s failure to comply with the pre-trial order or at the very least to inform the court on or before December 15th of his inability to produce the medical report. In this case, the plaintiff-appellant could easily have protected his rights by informing the court and opposing party of his inability to provide the required information before the deadline set by the trial court. His failure to provide a timely, clear or justifiable explanation for his non-compliance was inexcusable. Pursuant to these facts, it was not an abuse of discretion to dismiss the appellant’s action as
Alexander v. Farmer’s Mut. Auto Ins.,
The appellant contends that he was not given adequate warning that his failure to provide the medical report
In Latham the court reviewed the dismissal of an action pursuant to the Milwaukee County Civil Court Rules of Procedure applicable at that time. This' court stressed that the Milwaukee County Civil Court Rules, unlike the Federal Rules of Civil Procedure, did not disclose the existence of any court rule providing for sanctions or penalties for the non-appearance of counsel at a pre-trial hearing. As a result, the court concluded the following:
“The due process clause of the Fourteenth Amendment requires at least a fair and adequate warning by court rule or notice of the imposition of sanctions or penalties to be invoked for the failure to comply with a court order. Lacking such a forewarning, a hearing should be had on the imposition of a penalty.” Latham v. Casey & King Corp., supra at 316.
Since the Wisconsin Rules of Civil Procedure (effective January 1, 1976)' have been amended and patterned after the Federal Rules, the appellant misplaces his reliance on the Latham decision. Sec. 805.03, Stats., is sufficient notice to attorneys practicing in this state of the action which a court may take after a party’s failure to comply with pre-trial orders. The dismissal of an action under appropriate circumstances is not an extreme measure if the trial courts are to be encouraged to facilitate and expedite the trial of their cases. ,
We cannot find that the appellant was denied due process notice when the pre-trial order of October 7, 1976 alerted counsel of the likelihood of dismissal for failing to comply with the court’s orders. Specifically, the trial court’s order stated “There will be no deviation from this
This court in
Hauer v. Christon,
“We hold the trial court has an inherent power to dismiss a complaint and also to strike an answer and grant a default judgment, but whether such power is inherent or given by statute, the exercise of the power is limited by the requirement of due process of the fourteenth amendment of the United States Constitution. . . .” Id. at 154.
Hauer
cites
Hammond Packing Co. v. Arkansas,
In the case at bar, the trial court had the statutory authority to dismiss the complaint and grant judgment to
The interests of justice do not favor permitting a party to amend his pleadings in order to allege a new theory of recovery, after the original theory has been foreclosed due to his failure to comply with a pre-trial order. Rather, the interests of justice favor the compliance with court orders designed to prevent the unnecessary protraction of litigation.
By the Court. — Order affirmed.
Notes
Amended by Supreme Court order dated March 14, 1978, effective July 1, 1978 and reads:
“(1) AMENDMENTS. A party may amend his pleading once as a matter of course at any time within 6 months after the summons and complaint are filed or within the time set in a scheduling order under s. 802.10. Otherwise a party may amend the pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given at any stage of the action when justice so requires. A party shall plead in response to an amended pleading within 20 days after service of the amended pleading unless (a) the court otherwise orders or (b) no responsive pleading is required or permitted under s. 802.01(1).”