51 P.3d 919 (Alaska 2002), S-9980, DeNardo v. ABC Inc. RVs Motorhomes

Docket Nº:S-9980.
Citation:51 P.3d 919
Opinion Judge:CARPENETI, Justice.
Party Name:Daniel DeNARDO, Appellant, v. ABC INC. RVS MOTORHOMES, and Harvey Yates, Appellees.
Attorney:Daniel DeNardo, pro se, Anchorage. Cheryl L. Graves and Laura L. Farley, Le Gros Buchanan & Paul, Anchorage, for Appellees.
Judge Panel:Before : FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
Case Date:July 26, 2002
Court:Supreme Court of Alaska

Page 919

51 P.3d 919 (Alaska 2002)

Daniel DeNARDO, Appellant,


ABC INC. RVS MOTORHOMES, and Harvey Yates, Appellees.

No. S-9980.

Supreme Court of Alaska

July 26, 2002.

Page 920

Daniel DeNardo, pro se, Anchorage.

Cheryl L. Graves and Laura L. Farley, Le Gros Buchanan & Paul, Anchorage, for Appellees.

Before : FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.

Page 921




"It is precisely because outright failures to respond to discovery halt the case development process dead in its tracks, and threaten the underpinnings of the discovery system, that [Rule 37] authorizes ... courts, in responding to this kind of misconduct, ... to impose in the first instance any of a wide range of sanctions."1 Such power, however, does not go unchecked and is the subject of this appeal. Daniel DeNardo claims the superior court abused its discretion in dismissing his complaint for failure to comply with a court order compelling discovery. DeNardo also makes constitutional as well as other claims in regards to the superior court's order. However, because DeNardo was given multiple chances to comply with discovery but each time refused, we affirm the decision of the superior court.


Daniel DeNardo was an employee of ABC, Inc. RVs Motorhomes (ABC). DeNardo applied for a position as a recreational vehicle (RV) salesperson advertised in a newspaper by submitting his resume. On March 8, 1999, ABC alleges that John and Jay Marquardt interviewed DeNardo and offered him the position. DeNardo, however, argues only John Marquardt was present during the interview. The employment agreement was oral; no written document verified the terms of DeNardo's employment. On March 12, 1999, while DeNardo was filling out an employment form designed to verify his identity and work eligibility, ABC alleges that DeNardo displayed his passport, but did not show his driver's license. ABC claims DeNardo was informed a valid driver's license was necessary for the position because he was occasionally required to drive the RVs. DeNardo claims his driver's license was never requested and that he was told he would not have to drive the RVs as a part of his employment.

DeNardo was terminated on March 25, 1999 for his failure to provide a driver's license and his hostile behavior.

DeNardo filed a complaint in superior court in May 1999 alleging breach of an oral employment contract, interference with contractual relations, and emotional distress. In response to the complaint, ABC contended that, although DeNardo was employed by the company, there was no employment contract because he was an at-will employee. ABC argues that DeNardo's dismissal was justified.

In October 1999 DeNardo filed a motion to compel production of documents, generally seeking employment information about other salespeople employed by ABC. This motion was denied by Superior Court Judge Brian Shortell. DeNardo moved for reconsideration of the issue. This motion was denied in November 1999.

Also in November 1999 ABC filed a motion to compel. The motion claimed DeNardo had failed to provide requested information regarding his prior residences and employers, his criminal and litigation history, and his subsequent employment. The motion also requested pertinent background information such as a copy of his driver's license, social security card, tax records, and signed release authorizations. Judge Shortell granted the motion and awarded $100 to ABC as attorney's fees for having to bring the motion to compel. Judge Shortell also ordered DeNardo to respond to the order compelling discovery by December 27. DeNardo moved for reconsideration, but reconsideration was denied.

DeNardo failed to comply with Judge Shortell's order compelling discovery. ABC then filed a second motion to compel requesting dismissal of DeNardo's complaint or, in the alternative, additional sanctions. The alternative ABC proposed was that "the presumption should be drawn in favor of the Defendants." ABC asked that DeNardo be prohibited from offering any of the information requested into evidence and that a presumption be established that DeNardo was an at-will employee hired on a commission

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basis, "thereby presuming no contract existed." DeNardo opposed ABC's motion and filed a second motion to compel on February 14, 2000. On February 15 Judge Shortell issued a second order against DeNardo compelling discovery, but he declined to dismiss DeNardo's lawsuit. Instead, Judge Shortell stayed any action in the lawsuit for sixty days, waiting for DeNardo to comply with the order and warning that failure to comply now might result in dismissal.

On April 7 ABC wrote to DeNardo advising him of the imminent deadline and its intent to renew the motion to dismiss if he did indeed fail to comply. No response was received. Sixty days passed and DeNardo again failed to comply. ABC again moved to dismiss. On May 9 DeNardo filed a motion for discovery, alleging he needed information from ABC in order to respond to ABC's motion to dismiss. By this time, because of Judge Shortell's retirement, Superior Court Judge Stephanie E. Joannides had been assigned the case. Upon review of the pleadings, Judge Joannides dismissed the lawsuit under Alaska Rule of Civil Procedure 37(b)(2)(C) for DeNardo's failure to comply with the court's previous discovery orders. DeNardo subsequently moved for reconsideration and renewal of his previous discovery motions. ABC opposed reconsideration and reconsideration was denied.

DeNardo now appeals the superior court's order of dismissal.


We review a trial court's imposition of sanctions under Alaska Rule of Civil Procedure 37(b) for a party's failure to comply with a discovery order for an abuse of discretion.2 However, a "trial court's discretion is limited when the effect of the sanction it selects is to impose liability on the offending party, establish the outcome of or preclude evidence on a central issue, or end the litigation entirely."3

Whether a trial court weighed the appropriate factors in issuing a discovery order is reviewed de novo.4 Factual findings by the trial court are reviewed under the clearly erroneous standard.5

"When interpreting the Civil Rules we exercise our independent judgment, adopting the rule of law that is most persuasive in light of reason, precedent, and policy."6 Constitutional questions are reviewed de novo.7


A. The Superior Court Was Within Its Discretion in Dismissing DeNardo's Complaint.

DeNardo argues that Judge Joannides was not within her discretion in dismissing his complaint for violation of a discovery order. We disagree.

Alaska Rule of Civil Procedure 37 "affords trial courts broad power to enforce discovery orders by the use of sanctions."8 Rule 37(b)(2)(C) provides in relevant part that when a party fails to obey an order to provide discovery, the court may enter an order dismissing the action. However, the sanction of dismissal is only allowed in extreme cases because " 'a party should not be barred from his or her day in court where an alternative remedy would suffice to make the adverse party whole.' "9

Because of the extreme nature of dismissal, the Rules of Civil Procedure require that Before a case is dismissed the trial court must first find (1) that the non-complying party acted willfully to violate the order in

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question, (2) that there is resulting prejudice to the opposing party, and (3) that the imposed dismissal is sufficiently related to the violation at issue. In addition, the court must consider a reasonable exploration of alternatives to dismissal and whether those alternatives would adequately protect the opposing party as well as deter other discovery violations.10

1. DeNardo's failure to comply with Judge Shortell's discovery order was willful.

DeNardo claims that the superior court's order deleting six categories of discovery from ABC's original motion to compel shows that his failure to comply with the court's order was not willful. Moreover, he argues that, if he had been allowed to answer ABC's motion to dismiss with the discovery material he sought from ABC, it would show that ABC had committed many misrepresentations. ABC responds that DeNardo willfully disobeyed the court's order. Willfulness in this context is defined as a "conscious intent to impede discovery, and not mere delay, inability or good faith resistance."11

Although the court did limit the amount of discovery that ABC had originally requested, this order in itself does nothing to show that the remaining discovery requests that were allowed were unwarranted, or that DeNardo's actions in failing to comply with the court's order were in good faith. If anything, the limiting order shows the superior court's effort to ensure that DeNardo was not being harassed through the discovery process, not that the remaining discovery was irrelevant.

DeNardo also argues that if the court had granted his motion to compel he could have obeyed the court's order. However, we rejected this argument in Hikita v. Nichiro Gyogyo Kaisha, Ltd.12 In Hikita we held that a discovery request cannot be satisfied by a party claiming "it is 'attempting to ascertain the answers,' and putting off its obligation to a later date."13 And, as in Hughes v. Bobich,14 DeNardo's argument here "misallocates the applicable burden of proof on the issue of willfulness. Once noncompliance has been demonstrated, the noncomplying party bears the burden of proving that the failure to comply was not willful."15 DeNardo fails to meet this burden. Rather than showing that his failure to comply was...

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