Grier v. Rowland
| Decision Date | 06 December 1979 |
| Docket Number | No. 13918.,13918. |
| Parties | Dorothy GRIER et al., Appellants, v. Gerald ROWLAND et al., Appellees. |
| Court | D.C. Court of Appeals |
Before NEWMAN, Chief Judge, and NEBEKER and KERN, Associate Judges.
Appellants' civil action was dismissed ex parte for failure to comply with an order requiring discovery of documents and records. This discovery order had been entered thirteen days earlier, also ex parte, and in derogation of the notice requirements of the Superior Court Civil Rules. Upon learning of the dismissal, appellants filed a Motion to Reinstate the action, asserting as grounds that due process was denied them by the lack of any notice of, or an opportunity to be heard in opposition to, the Motion to Compel Discovery. The Motion to Reinstate was denied and this timely appeal followed. We reverse the denial of appellants' motion for reinstatement because of three violations of the Superior Court Civil Rules which provide for notice of the filing of motions and orders. These violations had the effect of denying appellants the due process of law guaranteed by the Fifth Amendment.1
Plaintiffs-appellants initiated this personal injury action by a complaint against defendants on January 21, 1976. After various pretrial motions and proceedings a pretrial conference was held before Judge McArdle on March 28, 1978, and a pretrial order entered. The pretrial order did not require production of any documents, although counsel for appellants acknowledges here that production of some documents, pursuant to a previous request for production served by appellees-defendants, was contemplated by the pretrial statements. Throughout these proceedings, however, the nature and existence of the documents has been controverted.
On April 14, 1978, the defendants filed a Motion to Compel Production of Documents and plaintiffs subsequently filed an Opposition to the motion. Both the Motion and the Opposition were returned to respective counsel on May 3, 1978, by the Civil Motions Commissioner's Office because, with a pretrial order having been filed, such a motion could not be filed without leave of court. Super.Ct.Civ.R. 16-I(a). With the Motion rejected, the Opposition became superfluous, although both the Motion and the Opposition remained in the record.
On May 23, 1978, defendants lodged their Motion to Compel Production of Documents, together with a Motion for Leave to do so, and also filed a Motion to Amend [the] Pre-Trial Statement. At this time counsel for plaintiffs did not oppose the Motion for Leave, in order that the Motion to Compel could be heard and resolved. Filing an Opposition to the substantive Motion to Compel would have been premature, however, until the Motion for Leave had been granted, particularly in these circumstances where the Opposition had been returned once already as superfluous.
Thereafter, on June 9, 1978, Judge McArdle, sitting as Civil Motions Judge, granted appellees' Motion for Leave in an order which deemed the Motion to Compel filed "as of the date of this Order." Simultaneously, Judge McArdle also issued orders granting defendants' Motion to Compel and their Motion to Amend Pre-Trial Statement, the latter order actually amending the Pre-Trial Order "to reflect defendants' Pre-Trial Statement regarding production of documents by plaintiffs." The order granting the Motion to Compel gave plaintiffs ten days in which to comply.
No opportunity was provided plaintiffs to oppose the substantive motions, although the motions were deemed to have been filed the same day as granted and Superior Court Civil Rule 12-I(e) allows ten days for filing an opposition to a motion. Counsel for plaintiffs not being present, notice of the three orders was mailed. Pursuant to Superior Court Civil Rule 6(e), regulating the computation of time, three additional days are to be allowed when notice of an order is mailed. In addition, Superior Court Civil Rule 77(d) requires the court clerk to note in the docket the fact of the mailing of the notice, but no such entry was ever made in this case.
On June 22, 1978, exactly thirteen days after the entry of the June 9 orders, counsel for defendants, without giving any notice of her intention to do so, filed a handwritten affidavit of non-receipt of the documents requested and succeeded, through an ex parte proceeding, in having the case dismissed in a Praecipe by Judge Pryor.2 Apparently Judge Pryor was not made aware of the fact that notice of the order to compel had been mailed, requiring an allowance of an additional three days for compliance, nor of the circumstances of the entry of the ex parte discovery order. No notice of the dismissal was mailed to plaintiffs' counsel.
Two days before the dismissal, on June 20, 1978, plaintiffs' counsel upon returning from a four-day trip, first received notice of the June 9 orders, and thereupon filed, on June 29, a Motion for Reconsideration and for Stay of Orders of June 9, 1978. From defendants' Opposition to this motion, filed July 7, 1978, plaintiffs first learned of the dismissal. Plaintiffs' counsel then filed their Motion to Reinstate on July 20, 1978, which was denied per Order of August 4, 1978, by Judge McArdle, from which denial this appeal was taken.
We reverse the denial of the motion to reinstate and remand for further proceedings. The several violations of the Superior Court Civil Rules denied appellants both an opportunity to oppose the Motion to Compel and the full time period allowed for compliance with the order to compel, thus denying appellants due process of law. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 94 L.Ed. 865 (1950) (); Societe Internationale v. Rogers, 357 U.S. 197, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958) ().
With regard to appellants' opportunity to oppose the Motion to Compel, the motions judge committed error in simultaneously granting both the Motion for Leave to File and the Motion to Compel where opposing counsel was not present and was not given an opportunity to oppose the Motion to Compel. Failure to oppose the Motion for Leave operated as a concession of that Motion, Super.Ct.Civ.R. 12 — I(e), but did not so affect the Motion to Compel, which was properly deemed to have been filed only on the day the Motion for Leave was granted. Upon the filing of the substantive Motion to Compel, appellants were entitled to "reasonable notice" of the motion, Super.Ct.Civ.R. 37(a), which Superior Court Civil Rule 12-I(e) suggests should be a minimum of ten days' time in which to file a statement of opposing points and authorities. Here the appellants were given no notice and absolutely no...
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