Pamplin v. Victoria

Decision Date22 December 1993
Citation123 Or.App. 388,859 P.2d 1185
PartiesIra PAMPLIN and Loretta Pamplin, Appellants, v. Shermona Lynn VICTORIA, Respondent. 16-91-06925; CA A75958.
CourtOregon Court of Appeals

Kevin Keaney, Portland, argued the cause for appellants. With him on the briefs was Pozzi, Wilson, Atchison, O'Leary & Conboy, Portland.

Michael H. Long, Eugene, argued the cause for respondent. With him on the brief was Brown, Roseta, Long & McConville, Eugene.

Before WARREN, P.J., and EDMONDS and LANDAU, JJ.


Plaintiffs appeal the trial court's judgment that dismissed their complaint with prejudice as a sanction for their failure to comply with a discovery order. ORCP 46B(2)(c). 1 We affirm.

Plaintiffs filed a complaint against defendant to recover damages for personal injuries. In October, 1991, defendant served on plaintiffs a request for production of medical bills, reports and charts, photographs and tax returns. ORCP 43. Also, there was evidence from which the trial court could have found that, from October, 1991, through April, 1992, defendant wrote two letters and made three phone calls to plaintiffs' attorney to request the documents. Plaintiffs did not respond to defendant's letters or phone calls. 2 After plaintiffs did not respond to the requests, defendant filed and served a motion on them on March 3, 1992, to compel production of the documents. ORCP 46A(2). Plaintiffs did not file a response to the motion, and the trial court granted it on April 9, 1992. It ordered plaintiffs to comply with the request within ten days. Plaintiffs' counsel says that he did not learn about the order until April 27.

Trial was set for July 7, 1992. Defendant did not receive any of the documents within the ten days provided by the trial court's order and, on April 24, 1992, filed a motion for dismissal of plaintiffs' complaint as a sanction for their failure to provide discovery. On May 4, 1992, and before the hearing on the motion to dismiss, defense counsel received some of the requested documents. The trial court granted defendant's motion and dismissed plaintiffs' complaint. We review to determine whether the trial court abused its discretion. Hahm v. Hills, 70 Or.App. 275, 279, 689 P.2d 995 (1984).

Under their first assignment of error, plaintiffs argue that defendant's motion to dismiss should have been denied, because defendant failed to make a good faith effort to confer with plaintiffs. UTCR 5.010(2) requires the moving party under ORCP 46 to "[make] a good faith effort to confer with the other parties concerning the issues in dispute." We hold that the evidence that defendant sent two letters and made three phone calls to plaintiffs during the six months preceding the filing of her motion to dismiss and the fact that defendant filed her motion to compel nearly two months before filing her motion to dismiss are facts that support a finding implicit in the trial court's conclusion that defendant complied with UTCR 5.010 by making a good faith effort to confer with plaintiffs.

Next, plaintiffs argue that defendant failed to demonstrate that she was prejudiced by their failure to comply with the trial court's order compelling production or that they wilfully disobeyed the order, and that, therefore, the trial court abused its discretion in dismissing their complaint with prejudice as a sanction. ORCP 46B(2)(c) does not expressly require a showing of prejudice or wilful disobedience. In Stronach v. Ellingsen, 108 Or.App. 37, 40, 814 P.2d 175, rev. den. 312 Or. 151, 817 P.2d 758 (1991), we said "In the light of the facts that a request for production had been pending [for six months prior to defendant's motion to dismiss], that numerous requests for production had not been complied with and that the order to compel had been in effect for approximately two weeks before defendant moved for sanctions, we cannot say that the trial court abused its discretion by imposing the sanction of dismissal with prejudice."

The facts of this case are not dissimilar. Harm to the opposing party is not the only consideration for a trial court confronted with a motion to dismiss under ORCP that follows a prolonged period of disregard for requests for production. The trial court is charged with the efficient administration of court business. Delays in compliance with procedural requirements not only affect the parties to the litigation but also have an impact on other litigants who must wait in line to have their day in court. ORCP 46B(2)(c) is rendered impotent if litigants can avoid its effect by untimely compliance or by the claim, "no harm, no foul." Despite a six month period of requests, formal and informal, for production, plaintiffs did not provide discovery until faced with a motion for sanctions. Under such circumstances, ORCP 46 necessarily contemplates that trial courts have the authority to impose a sanction of dismissal with prejudice.

Finally, plaintiffs...

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3 cases
  • Chong Ok Chang v. Eun Hee Chun
    • United States
    • Court of Appeals of Oregon
    • 1 Julio 2020
    ...standards of review. We review for abuse of discretion a trial court's decision to strike a claim under ORCP 46 B. Pamplin v. Victoria , 123 Or. App. 388, 391, 859 P.2d 1185 (1993), rev'd on other grounds , 319 Or. 429, 877 P.2d 1196 (1994) (citing Hahm v. Hills , 70 Or. App. 275, 279-80, 6......
  • Pamplin v. Victoria
    • United States
    • Supreme Court of Oregon
    • 4 Agosto 1994
    ...its discretion. The Court of Appeals affirmed the sanction of dismissal of plaintiff's complaint with prejudice. Pamplin v. Victoria, 123 Or.App. 388, 859 P.2d 1185 (1993). On review, we reverse and ORCP 46 B(2)(c) is a statute, to which we apply the usual method of statutory interpretation......
  • Pamplin v. Victoria
    • United States
    • Supreme Court of Oregon
    • 28 Enero 1994
    ...1386 867 P.2d 1386 318 Or. 325 Pamplin v. Victoria NOS. A75958, S40867 Supreme Court of Oregon Jan 28, 1994 123 Or.App. 388, 859 P.2d 1185 ...

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