Thompson v. Ziebarth
Decision Date | 12 May 1983 |
Docket Number | No. 10331,10331 |
Citation | 334 N.W.2d 192 |
Parties | Hayden THOMPSON, Raymond Buckle, and Donald A. Thompson, Plaintiffs and Appellants, v. Silver ZIEBARTH, Defendant and Appellee. Civ. |
Court | North Dakota Supreme Court |
Lundberg, Conmy, Nodland, Lucas & Schulz, Bismarck, for plaintiffs and appellants; argued by A. William Lucas, Bismarck.
William W. Binek, Bowman, for defendant and appellee.
This is an appeal by the plaintiffs, Hayden Thompson, Raymond Buckle, and Donald A. Thompson, from an order of the District Court of Ward County, dated August 10, 1982, dismissing their action against the defendant, Silver Ziebarth, under Rule 37, N.D.R.Civ.P., as a sanction for failure to make discovery. We reverse and remand.
On January 30, 1979, the plaintiffs filed this action against Ziebarth for the purchase price of cattle allegedly purchased by Ziebarth from the plaintiffs. The plaintiffs previously filed a complaint against Ziebarth on December 30, 1975, which was substantially identical to the complaint filed in this action. That complaint was dismissed, without prejudice, on February 21, 1978, for want of prosecution.
Ziebarth filed a motion for dismissal of this lawsuit on two grounds: (1) that the plaintiffs have failed to appear for depositions and have failed to make discovery; and (2) that the action was not commenced within four years after the cause of action accrued as required under Section 41-02-104, N.D.C.C. The district court, without discussing the statute of limitations issue, entered an order on August 10, 1982, holding Donald Thompson in contempt of court for failing to appear at his scheduled deposition and dismissing the action against all of the plaintiffs for violating the discovery rules.
On appeal the plaintiffs assert that the district court abused its discretion in dismissing the action as a sanction under Rule 37, N.D.R.Civ.P., because a less harsh sanction would have been adequate.
Rule 37, N.D.R.Civ.P., which is patterned after Rule 37 of the Federal Rules of Civil Procedure, provides the trial court with a broad spectrum of sanctions which it may impose where there has been an abuse of the discovery rules. The sanctions imposed by the court will not be set aside on appeal unless they constitute an abuse of discretion by the trial court. St. Aubbin v. Nelson, 329 N.W.2d 874 (N.D.1983); See also, National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747, reh'g denied, 429 U.S. 874, 97 S.Ct. 197, 50 L.Ed.2d 158 (1976); Edgar v. Slaughter, 548 F.2d 770 (8th Cir.1977).
In Erling v. Haman, 144 N.W.2d 215 (N.D.1966), this Court, in reversing the trial court's dismissal of an action as a sanction under Rule 37, N.D.R.Civ.P., quoted approvingly from an article written by the Honorable Sterry R. Waterman, Associate Justice of the Second Circuit of the United States Court of Appeals:
" 'The sanctions of dismissal and of judgment by default are severe sanctions, and appellate judges believe they would be remiss in their duties if they chose only to rubber stamp such orders of lower courts. To be sure, these drastic sanctions are indeed provided for by the Rules, but I am certain that the draftsmen did not propose that they should be used liberally in order to eliminate the actual trial of cases.
Dismissal of an action or entry of a default judgment as a sanction for discovery abuse should generally be imposed only where there is a deliberate or bad faith non-compliance which constitutes a flagrant abuse of or disregard for the discovery rules. See, National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747, reh'g denied, 429 U.S. 874, 97 S.Ct. 197, 50 L.Ed.2d 158 (1976); Edgar v. Slaughter, 548 F.2d 770 (8th Cir.1977).
In dismissing the plaintiffs' action, the district court appears to have relied primarily upon the following factors: (1) that Donald Thompson did not appear to take his deposition as scheduled on July 11, 1982; (2) that on at least two other occasions one or more of the plaintiffs failed to appear for scheduled depositions; and (3) that Hayden Thompson and Donald Thompson have failed to pay expenses for previous failures to attend depositions as ordered by the court on November 23, 1981, and June 30, 1982, respectively. Although we are not condoning the actions of plaintiffs and their counsel in this lawsuit, we do not believe the factors relied upon by the trial court in dismissing this case are sufficient to warrant a dismissal of the action at this time.
The district court entered an order, dated November 23, 1981, holding the plaintiff, Hayden Thompson, in contempt of court for failure to appear for the taking of his deposition in violation of a court order dated November 9, 1981. The court ordered Thompson to pay Ziebarth's costs of preparing for the deposition in an amount not to exceed $2,500.00 "payment to be made on or before the date set for trial of this action." The plaintiffs assert that Hayden, who resides in Colorado, didn't attend the deposition because the plaintiffs' attorney, Pat Conmy, was unable to locate and notify him of the deposition in sufficient time to avoid a conflicting commitment in Hastings, Nebraska, on the date scheduled for the deposition. Hayden subsequently made himself available in Bismarck where his deposition was taken by Ziebarth on December 2, 1981.
On June 30, 1982, the district court entered an order finding the plaintiff, Donald A. Thompson, in contempt of court for failure to appear for the taking of his deposition, and the court ordered in relevant part, "that all discovery work be completed forthwith, and, if any of the parties refuse to cooperate, the action will be dismissed or Judgment by Default entered, as appropriate" and "that the plaintiff, Donald Thompson, reimburse the defendant for costs, including attorneys fees, for the failure to appear for the taking of his deposition on June 11, 1982, in the sum of $750, payable on or before the taking of the deposition; ..." The plaintiffs assert that Donald, who resides in Canada, planned to attend the deposition at Minot with his Canadian attorney, Richard Hornung, but Hornung was involved with a trial in the province of Saskatchewan...
To continue reading
Request your trial-
State v. Kolstad
...less drastic sanction is available and just as effective." Dakota Bank & Trust Co. , 377 N.W.2d at 556 (citing Thompson v. Ziebarth , 334 N.W.2d 192 (N.D. 1983) ; St. Aubbin v. Nelson , 329 N.W.2d 874 (N.D. 1983) ). [¶28] Though much of the discussion at trial surrounding dismissal of the r......
-
Vorachek v. Citizens State Bank of Lankin, 11239
...of Fargo v. Foss, 391 N.W.2d 622 (N.D.1986); Dakota Bank & Trust Co. of Fargo v. Brakke, 377 N.W.2d 553 (N.D.1985); Thompson v. Ziebarth, 334 N.W.2d 192 (N.D.1983); St. Aubbin v. Nelson, 329 N.W.2d 874 (N.D.1983); see also Gohner v. Zundel, 411 N.W.2d 75 (N.D.1987) (discussing application o......
-
Estate of Murphy, Matter of
...abuse of or flagrant bad faith disregard for the rules of discovery," reversal is not an appropriate remedy. See Thompson v. Ziebarth, 334 N.W.2d 192, 194-5 (N.D.1983) (finding the trial court abused its discretion by dismissing a case in which depositions were not taken due to miscommunica......
-
Kitzmann v. Kitzmann, 890378
...on appeal unless there is an abuse of discretion. Dakota Bank & Trust Co. of Fargo v. Brakke, 377 N.W.2d 553 (N.D.1985); Thompson v. Ziebarth, 334 N.W.2d 192 (N.D.1983). Upon reviewing the record, we are not convinced that the trial court abused its discretion in denying Gloria's request fo......