Xu v. Mclaughlin Research Institute, 04-625.

Decision Date23 August 2005
Docket NumberNo. 04-625.,No. 04-816.,04-625.,04-816.
Citation119 P.3d 100,2005 MT 209
CourtMontana Supreme Court
PartiesDr. Xin XU, Plaintiff and Appellant, v. McLAUGHLIN RESEARCH INSTITUTE FOR BIOMEDICAL SCIENCE, INC., and Dr. George Carlson, Individually, and in his Capacity as Director and Senior Scientist for the McLaughlin Research Institute for Biomedical Sciences, Inc., Defendants and Respondents.

For Appellant: Ronald L. Bissell, Bissell Law Offices, Missoula, Montana (Cause No. 2003-945); Dr. Xin Xu, pro se, Missoula, Montana (CDV 2004-005).

For Respondents: Jean E. Faure and Jason T. Holden, Church Harris Johnson & Williams, Great Falls, Montana.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 Dr. Xin Xu (Xu) filed two claims against his former employer, McLaughlin Research Institute for Biomedical Sciences. Both claims arise out of the termination of his employment contract. Xu appeals the Eighth Judicial District Court's dismissal with prejudice of his claim in Cause No. CDV 03-945, and the District Court's grant of Respondent McLaughlin's Motion for Summary Judgment in Cause No. CDV 04-005. We affirm.


¶ 2 A restatement of the relevant issues is:

¶ 3 Did the District Court abuse its discretion by dismissing with prejudice Xu's action in Cause No. CDV 03-945?

¶ 4 Did the District Court abuse its discretion by granting McLaughlin's Motion for Summary Judgment in Cause No. CDV 04-005?


¶ 5 On September 11, 2003, counsel for Xu filed a Complaint and Demand for Jury Trial in the Montana Eighth Judicial District Court, Cascade County. This matter was assigned Cause No. 03-945. The Complaint set forth the following facts:

¶ 6 In November 1999, Xu accepted a three-year contract as a scientist with the McLaughlin Research Institute for Biomedical Sciences, Inc., in Great Falls, Montana. Dr. George Carlson was the Director and Senior Scientist at McLaughlin Research at the time Xu was hired. (Hereinafter both McLaughlin Research Institute and Dr. Carlson will be collectively referred to as "MRI.") In July 2001, MRI extended Xu's appointment by one year. Then, in September 2002, MRI terminated Xu's employment. At that time, MRI provided Xu with a check for his salary and medical and life insurance through November 15, 2003.

¶ 7 Xu's Complaint alleged that MRI: 1) terminated his employment without good cause in violation of the Montana Wrongful Discharge from Employment Act; 2) blacklisted him and prevented him from obtaining employment; 3) discriminated against him because of his race, national origin, and marital status in violation of the Montana Human Rights Act; 4) violated the covenant of good faith and fair dealing; 5) intentionally and negligently inflicted emotional distress; and 6) negligently breached the duty of care it owed to him in providing information to prospective employers. He subsequently attempted to file three amended complaints, none of which were allowed by the court.

¶ 8 Xu retained counsel shortly after receiving his termination letter from MRI in September 2002. After failed settlement negotiations on October 31, 2002, Xu fired this attorney. He engaged another attorney to prepare the September 2003 Complaint. Subsequently, on November 12, 2003, she requested permission to withdraw, which was granted on November 14, 2003. Xu acted as his own counsel for the remainder of the District Court proceeding. He retained an attorney to assist him in this appeal.

¶ 9 MRI served written discovery requests upon Xu on October 8, 2003. The request plainly indicated that under Rules 33, 34, and 36 of Montana's Rules of Civil Procedure, Xu had thirty days in which to respond in writing. At the time Xu received the requests, he was represented by counsel although counsel withdrew shortly thereafter. On January 6, 2004, Xu submitted incomplete, inappropriate, and unacceptable responses. On January 18, counsel for MRI notified Xu that his responses were inadequate and incomplete. Additionally, she provided further explanation for six requests to which Xu had answered "Need more specific information." Defense counsel informed Xu that he had to supplement his responses by January 23, or MRI would file a motion to compel. Xu did not respond.

¶ 10 On February 25, 2004, MRI filed a Motion, seeking an Order compelling Xu to respond appropriately and completely. Then, after unsuccessful correspondence seeking an available date to schedule Xu's deposition, MRI gave timely notice to Xu of its intent to take his deposition on May 11, 2004. Without response or explanation, Xu did not attend his deposition. On May 12, 2004, MRI sought an Order compelling Xu's attendance at the deposition and imposing sanctions, including dismissal of Xu's claims, for his failure to attend the May 11 deposition.

¶ 11 The District Court held a hearing on June 7, 2004, to address MRI's motions. During the hearing, the court carefully explained to Xu his obligation to comply with the Montana Rules of Civil Procedure, including answering discovery and attending depositions. The court ordered Xu to provide the required written responses to MRI's October 2003 discovery requests by June 30, 2004. The court also ordered Xu to appear for a deposition to be scheduled no later than June 30, 2004.

¶ 12 After an exchange of correspondence, Xu agreed to appear at a deposition scheduled at noon on June 30, 2004. MRI reminded Xu of the deposition date through timely notice on June 10. Xu filed a pleading on June 22, confirming his appearance. On June 24, counsel for MRI reminded Xu by letter that he was under court order to provide supplemental written responses to the October discovery requests by June 30. Counsel requested that the answers be provided before his noon deposition of the same day. In response, Xu, without seeking permission, immediately and unilaterally filed a written pleading with the District Court "rescheduling" his June 30 deposition. Counsel for MRI promptly responded in writing, urging him to attend the June 30 deposition as scheduled or MRI would seek the sanction of dismissal. Xu did not attend the deposition.

¶ 13 MRI promptly moved for sanctions against Xu for failure to attend the scheduled and ordered deposition. The sanctions requested included attorneys fees and costs, including court reporter costs for both missed depositions, and possible dismissal of Xu's claims. The District Court held a hearing on August 2, 2004, to consider MRI's motion. During the hearing Xu offered no excuse for his failure to attend the deposition other than his belief that written discovery should be completed prior to taking depositions and that MRI's counsel's letter requesting the answers to the October discovery requests somehow constituted new discovery.

¶ 14 On August 3, 2004, the District Court, relying on Rule 37(d), M.R.Civ.P., dismissed Xu's action with prejudice for failure to attend two scheduled depositions, one of which was court-ordered. The court noted that Xu had been sufficiently forewarned of the possibility of dismissal as a sanction for failing to appear at his June deposition.

¶ 15 On January 5, 2004, as Cause No. 03-945 was proceeding, Xu filed another complaint against MRI in the Montana Eighth Judicial District Court, Cascade County. This case was assigned Cause No. 04-005. The Complaint was prepared by Xu, pro se, and arose from the same facts as Cause No. 03-945. However, Xu did not serve MRI with this second Complaint until August 12, 2004, approximately one week after Cause No. 03-945 was dismissed. MRI filed a Motion for Summary Judgment with respect to this Complaint based on res judicata and collateral estoppel. Xu argued that principles of res judicata and collateral estoppel did not apply because there had been no final adjudication on the merits in Cause No. 03-945. Xu also argued that because he included a new claim of defamation in the Complaint in Cause No. 04-005, this claim was not subject to res judicata or collateral estoppel.

¶ 16 Relying on Rules 41(b) and 37(d), M.R.Civ.P., the District Court concluded that dismissal of Cause No. 03-945 was a "dismissal with prejudice," and constituted an adjudication upon the merits. In response to Xu's alternative argument, the District Court held that the defamation claim could have been raised in the original Complaint, as it arose from the same set of facts and circumstances as did Cause No. 03-945. The court also noted that in both actions, the parties, the subject matter, the issues, and the parties' capacities in relation to the subject matter was the same. After concluding that there was a final adjudication on the merits in Cause No. 03-945, the court determined that both res judicata and collateral estoppel applied to Cause No. 04-005. It therefore granted MRI's Motion for Summary Judgment. Xu filed timely appeals in both of these cases. We granted a motion to consolidate these two cases for purposes of review.


¶ 17 We review a district court's imposition of discovery sanctions for an abuse of discretion. We have consistently deferred to a district court's imposition of sanctions because "the trial judge is in the best position to know . . . which parties callously disregard the rights of their opponents and other litigants seeking their day in court. The trial judge is also in the best position to determine which sanction is the most appropriate." Smart v. Molinario, 2004 MT 21, ¶ 8, 319 Mont. 335, ¶ 8, 83 P.3d 1284, ¶ 8 (internal citations omitted).

¶ 18 We review a district court's grant or denial of a motion for summary judgment de novo. Therefore, we apply the same Rule 56, M.R.Civ.P., criteria as applied by the district court. Pursuant to Rule 56, M.R.Civ.P.:

The movant must demonstrate that no genuine issues of material fact exist. Once this has been accomplished, the burden then shifts to the non-moving party to...

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