Fallon v. Casco-Northern Corp., CASCO-NORTHERN
| Decision Date | 11 July 1983 |
| Docket Number | CASCO-NORTHERN |
| Parties | John FALLON v.CORPORATION. |
| Court | Maine Supreme Court |
John D. Fallon, pro se.
Louise K. Thomas (orally), Portland, for defendant.
Before GODFREY, NICHOLS, ROBERTS and WATHEN, JJ., and DUFRESNE, A.R.J.
John Fallon appeals pro se from an order dismissing his complaint "with prejudice" entered in the Superior Court, Cumberland County. Fallon filed his complaint against the defendant Casco-Northern Corporation, purportedly pursuant to 13-A M.R.S.A. § 626 (1981), to compel inspection of the defendant's corporate records. As a sanction for Fallon's failure to testify at court-ordered depositions, the Superior Court dismissed the action and granted the Corporation affirmative relief with respect to any future shareholder inspection actions brought by Fallon against the Corporation. We modify the order granting affirmative relief. As so modified, we affirm the judgment.
In August of 1980, Fallon tried unsuccessfully to inspect the defendant's corporate records. The Corporation refused inspection because of its concern that Fallon's request was not for a proper and legitimate purpose, relating clearly to his interests as a stockholder. Rather, the Corporation expressed concern that Fallon sought inspection as a result of his interest in other litigation with one of the Corporation's subsidiaries. That litigation related to various loan requests and transactions.
Fallon filed a complaint in the Superior Court in September of 1980 seeking to inspect and copy "without limitation" unspecified corporate books and records of the defendant. On November 24, 1980, the Corporation filed a notice to produce documents and to depose Fallon on December 4, 1980. Fallon responded with a motion requesting a protective order pursuant to M.R.Civ.P. 26(c) prohibiting any deposition, an award of $500.00 in expenses pursuant to M.R.Civ.P. 26(c) and 37(a)(4), and disciplinary action against defense counsel for "willful violation" of M.R.Civ.P. 11. The motion alleges, inter alia, defective notice, bad faith, and harassment. At Fallon's request a hearing on the motion was set for January 14, 1981.
Fallon failed to appear at the January 14 hearing. By order dated January 15, 1981, the Superior Court denied Fallon's motion. In addition, the Superior Court ordered Fallon to appear for his deposition on January 30, 1981. Fallon again moved for a protective order on January 23, 1981, and requested another hearing for March 13, 1981. This motion to reconsider alleged that the Superior Court denied the previous motion without affording the plaintiff notice and an opportunity to be heard.
Fallon failed to appear at his court-ordered deposition on January 30, 1981. Consequently, on February 9, 1981, the Corporation filed a motion for sanctions against Fallon pursuant to M.R.Civ.P. 37(b)(2)(A)-(D). The hearing on the Corporation's motion was set to be heard with Fallon's motion to reconsider on March 13, 1981. Following the hearing, the Superior Court again ordered Fallon to submit to discovery and to appear for his deposition on May 5, 1981. Finally, the order warned that if Fallon failed to appear and testify and to produce documents, the court would consider "severe and appropriate sanctions, including, without limitation, prohibiting Fallon from pursuing any action until his deposition is taken."
Thereafter, on April 1, 1981, Fallon filed, inter alia, the following motions: (1) a motion to report the discovery orders to the Law Court on the grounds that the orders raise "a serious question" regarding the scope of M.R.Civ.P. 26; (2) an alternative motion to alter judgments pursuant to M.R.Civ.P. 59(e) or to request dismissal of the plaintiff's action if the plaintiff "elects" not to comply with discovery (so that "he might have a judgment which could be appealed to the Law Court"); and (3) an "ex parte" motion to stay the discovery orders until hearing and disposition of the latter motions. Two days later, on April 3, 1981, Fallon also moved for summary judgment.
The Corporation filed, on April 6, 1981, a motion to compel production of documents and an objection to the "ex parte" motion for stays. The Corporation also moved, on April 9, 1981, to continue Fallon's motion for summary judgment until after the depositions scheduled for May 5. Following an April 13 hearing, the Superior Court denied all pending motions.
Fallon appeared on May 5 but refused to be deposed for two reasons: (1) the court reporter did not have written evidence that he was properly qualified, pursuant to M.R.Civ.P. 28, to take depositions; and (2) defense counsel and the court reporter did not furnish written guarantees that they would observe the rules of civil procedure, particularly in preparing the deposition transcript. The thirty minute discussion between defense counsel and Fallon was quite heated and ended when Fallon walked out the door. Thereafter, on May 21, 1981, the Corporation again moved for sanctions against Fallon, specifically requesting dismissal with prejudice and costs, or an order that, for the purposes of the litigation, Fallon's request to inspect the Corporation's records would be presumed to be for improper purposes and in bad faith.
In August of 1981, Fallon's appeal to the Law Court was dismissed as interlocutory. Over a year later, on September 14, 1982, the Corporation requested that the May 21 motion for sanctions be set for hearing on November 19, 1982. Notice of the request for hearing was sent to Fallon and the hearing was in fact set for November 19, 1982. Fallon filed a "Verified Ex Parte Motion for Continuance" dated November 17, 1982, stating that he had not received notice of the hearing until November 16 and that he had "long-standing" plans to be out of the state on personal business on November 19.
The hearing on the Corporation's motion for sanctions proceeded on November 19, but evidently Fallon failed to appear. Following the hearing, the Superior Court determined that Fallon's reasons for refusing to be deposed were "totally frivolous" and issued an order denying Fallon's motion to continue and granting the Corporation's motion for sanctions. The Superior Court dismissed the complaint "with prejudice" and further ordered: "In this and any other action John Fallon commences against Casco-Northern Corporation for shareholder inspection of the books and records of the Corporation, it shall be taken to be established that John Fallon seeks the inspection of Casco-Northern Corporation's records for improper purpose and in bad faith." Thereafter, Fallon filed a timely notice of appeal to...
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