Brown v. Black

Present: All the Justices

PAULINE BROWN

v. Record No. 992751

WILLIAM BLACK, ET AL.
OPINION BY JUSTICE LEROY R. HASSELL, SR.
September 15, 2000
ELAINE HUGHES

v. Record No. 992752

WILLIAM BLACK, ET AL.

FROM THE CIRCUIT COURT OF SUSSEX COUNTY
James A. Luke, Judge

I.

In these consolidated appeals from two separate

judgments, we consider whether the circuit court, which had

not entered orders compelling discovery, erred in dismissing

the plaintiffs' motions for judgment because of their failure

to respond to the defendants' discovery requests.

II.

Pauline Brown and Elaine Hughes, represented by the same

counsel, filed separate motions for judgment against William

Black, National Railroad Passenger Corporation, d/b/a Amtrak,

Paul Jones Elliott, Car Center, and CSX Transportation, Inc.

The plaintiffs alleged that they were injured while traveling

as passengers on the same train operated by Amtrak and that

the defendants breached certain duties owed to them.
 In June 1998, defendants Black, Amtrak, and CSX

Transportation propounded interrogatories to the plaintiffs in

the separate actions. Defendants Elliot and Car Center

"joined" with the co-defendants in these discovery requests.

The plaintiffs failed to respond to the discovery requests.

In May 1999, defendants Black, Amtrak, and CSX Transportation

filed motions "to compel answers to interrogatories,

deposition of plaintiff, independent medical examination of

plaintiff or in the alternative to dismiss plaintiff's motion

for judgment with prejudice" in both actions.

These defendants asserted in their motions that the

plaintiffs failed to respond to certain interrogatories

propounded to them, that the defendants' counsel "wrote to

[plaintiffs'] counsel requesting answers to the

interrogatories," and that in March 1999 "defendants' counsel

wrote [plaintiffs'] counsel requesting dates for [the

plaintiffs' depositions and independent medical

examinations.]" According to the allegations in the

defendants' motions, even though plaintiffs' counsel replied

that she would "get back shortly" to defendants' counsel, she

failed to do so. The defendants' counsel requested that the

circuit court enter orders requiring the plaintiffs to comply

with the discovery requests or, in the alternative, that the

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court dismiss with prejudice the plaintiffs' motions for

judgment.

After the plaintiffs did not respond to the defendants'

motions, the defendants gave the plaintiffs notice of a

hearing. At the hearing, the circuit court permitted

defendants Elliott and Car Center to "join in" the motions.

Counsel did not appear for either plaintiff. However, a

lawyer, who was apparently contemplating serving as new

counsel for the plaintiffs in these actions, attended the

hearing but specifically declined to be named as counsel of

record for the plaintiffs. The court ruled that it would

dismiss both motions for judgment.

The plaintiffs filed motions for reconsideration after

the court had ruled, but before the entry of orders dismissing

their motions for judgment. Plaintiffs' counsel argued that

Rule 4:12 authorizes a circuit court to dismiss a motion for

judgment only if the plaintiff has failed to obey a discovery

order. The plaintiffs asserted that the circuit court should

not have dismissed their motions for judgment because the

court had not entered orders compelling discovery in their

respective cases. The circuit court concluded that the

plaintiffs were derelict in the prosecution of their cases and

declined to change its ruling. Subsequently, the circuit

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court entered orders dismissing the motions for judgment. The

plaintiffs appeal.

III.

Rule 4:12 states in relevant part:

"(a) Motion for Order Compelling Discovery. — A
party, upon reasonable notice to other parties and
all persons affected thereby, may apply for an order
compelling discovery as follows:

. . . .

"(b) Failure to Comply With Order. — (1)
Sanctions by Court in County or City Where
Deposition Is Taken. If a deponent fails to be
sworn or to answer a question after being directed
to do so by the court in the county or city in which
the deposition is being taken, the failure may be
considered a contempt of that court.
"(2) Sanctions by Court in Which Action Is
Pending. If a party or an officer, director, or
managing agent of a party or a person designated
under Rule 4:5(b)(6) or 4:6(a) to testify on behalf
of a party fails to obey an order to provide or
permit discovery, including an order made under
subdivision (a) of this Rule or Rule 4:10, the court
in which the action is pending may make such orders
in regard to the failure as are just, and among
others the following:
"(A) An order that the matters regarding which the
order was made or any other designated facts shall be
taken to be established for the purposes of the action in
accordance with the claim of the party obtaining the
order;
"(B) An order refusing to allow the disobedient
party to support or oppose designated claims or defenses,
or prohibiting him from introducing designated matters in
evidence;
"(C) An order striking out pleadings or parts
thereof, or staying further proceedings until the order
is obeyed, or dismissing the action or proceeding or any
part thereof, or rendering a judgment by default against
the disobedient party;

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 . . . .

"(d) Failure of Party to Attend at Own
Deposition or Serve Answers to Interrogatories or
Respond to Request for Inspection. — If a party or
an officer, director, or managing agent of a party
or a person designated under Rule 4:5(b)(6) or
4:6(a) to testify on behalf of a party fails (1) to
appear before the officer who is to take his
deposition, after being served with a proper notice,
or (2) to serve answers or objections to
interrogatories submitted under Rule 4:8, after
proper service of the interrogatories, or (3) to
serve a written response to a request for inspection
submitted under Rule 4:9, after proper service of
the request, the court in which the action is
pending on motion may make such orders in regard to
the failure as are just, and among others it may
take any action authorized under paragraphs (A),
(B), and (C) of subdivision (b)(2) of this Rule. In
lieu of any order or in addition thereto, the court
shall require the party failing to act or the
attorney advising him or both to pay the reasonable
expenses, including attorney's fees, caused by the
failure, unless the court finds that the failure was
substantially justified or that other circumstances
make an award of expenses unjust."
"The failure to act described in this
subdivision may not be excused on the ground that
the discovery sought is objectionable unless the
party failing to act has applied for a protective
order as provided by Rule 4:1(c)."

(Emphasis added).

The plaintiffs contend that even though Rule 4:12 grants

a circuit court the authority to dismiss an action because of

a party's failure to comply with discovery, such dismissal is

appropriate only when that party has violated a court order

compelling a party to comply with a discovery request. The

defendants respond that Rule 4:12(d) grants a circuit court

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the authority to dismiss an action if a plaintiff fails to

serve answers to interrogatories submitted under Rule 4:8

after proper service of the interrogatories and that "[t]he

violation by a party of an order is not a condition precedent

to the imposition of sanctions under Rule 4:12." Continuing,

the defendants say the dismissals were justified in these

cases because the plaintiffs failed to respond to

interrogatories filed more than a year before the dismissals,

did not appear at the hearing on the motion to compel

discovery, and had not pursued their respective causes of

action with diligence for more than one year. We disagree

with the defendants' arguments.

Rule 4:12(a) sets forth the procedure that a party must

follow to obtain an order compelling discovery and permits a

court to award attorney's fees and expenses. Rule 4:12(b)

enumerates the sanctions that a court may impose if a party

"fails to obey an order to provide or permit discovery."

Thus, a party's failure to obey such an order is a

prerequisite for the imposition of sanctions under paragraphs

(A), (B), and (C) of Rule 4:12(b)(2).

Rule 4:12(d) permits a circuit court to take the actions

authorized under paragraphs (A), (B), and (C) of Rule

4:12(b)(2) when a party acts or fails to act in the

circumstances set forth in Rule 4:12(d). As stated above,

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however, those actions are only authorized when a party has

failed "to obey an order to provide or permit discovery."

Thus, we conclude that the limitation on the circuit court's

power to impose sanctions specified in paragraphs (A), (B),

and (C) of Rule 4:12(b)(2), that a party has failed to obey an

order to provide or permit discovery, necessarily restricts

the circuit court's exercise of those powers under Rule

4:12(d).

We also note that both Rule 4:12(b)(2) and Rule 4:12(d)

provide that "the court in which the action is pending may

make such orders in regard to the failure [to comply with

discovery] as are just." This language, which gives a circuit

court broad discretion to tailor its sanctions to the

particular conduct of a party in a given case, was not

intended to confer upon a court the power to dismiss an action

unless a party has violated an order compelling discovery.

Neither Rule 4:12(b)(2) nor Rule 4:12(d) permits such a

drastic sanction in the absence of the violation of an order

compelling discovery.

Our interpretation of Rule 4:12(b)(2) does not render

meaningless the provisions in Rule 4:12(d). Unlike Rule

4:12(b)(2), Rule 4:12(d) specifically limits the discretion of

circuit court to deny a request for sanctions for the

proscribed conduct by providing that a circuit court may not

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excuse a party's failure to act unless that party has applied

for a protective order as provided in Rule 4:1(C). We further

note that Rule 4:12 does not impose different requirements for

obtaining sanctions based on the severity of a discovery

violation, but uniformly subjects every failure to comply with

an order compelling discovery to the circuit court's

discretionary authority provided in that Rule.

As the defendants have recognized, the federal courts, in

interpreting Federal Rule of Civil Procedure 37 which is

substantially similar to Rule 4:12, have held that federal

district courts may dismiss an action for a party's failure to

comply with discovery even though an order compelling

discovery has not been entered. See, e.g., Aziz v. Wright, 34

F.3d 587, 589 (8th Cir. 1994). However, it is the

responsibility of this Court to interpret our own Rules

regarding pretrial procedures for the parties in the courts of

this Commonwealth. And, even though the federal courts'

interpretations of their rules in some instances may be

informative, those interpretations are not binding on this

Court's interpretation of our Rules.

Accordingly, we hold that Rule 4:12(d), when read with

the other provisions in Rule 4:12, authorizes a circuit court

to dismiss a motion for judgment only when the plaintiff fails

to comply with a court's order to provide or permit discovery.

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Therefore, the circuit court erred in dismissing the

plaintiffs' motions for judgment.

IV.

We will reverse the judgments of the circuit court, and

we will remand these cases for further proceedings.

Record No. 992751 — Reversed and remanded.
Record No. 992752 — Reversed and remanded.

JUSTICE KINSER, with whom JUSTICE LACY and JUSTICE LEMONS
join, concurring.

Because I believe the trial court abused its discretion

under Rule 4:12, I concur in the result reached by the

majority; however, I cannot subscribe to the majority’s

interpretation of Rule 4:12(d). Therefore, I write separately

to discuss the analytical framework established by the plain

language of Rule 4:12, in particular the relationship among

subsections (a), (b)(2), and (d) of that rule.

First, subsection (a) authorizes a party to move for an

order compelling discovery if a deponent fails to answer a

question; if a party fails to answer an interrogatory; or, if

in response to a request for inspection, a party fails to

respond that the inspection will be permitted or to permit the

inspection. For purposes of subsection (a), an evasive or

incomplete answer is treated as a failure to answer. Rule

4:12(a)(3). If the requesting party prevails on the motion to

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compel, the court may, depending on the relief requested in

the motion, order the opposing party to answer a particular

question or interrogatory, or provide additional information.

However, the only sanction that the court may impose, if

appropriate, is an award of expenses, including attorney's

fees. Rule 4:12(a)(4).

Subsection (b)(2) provides that if a party fails to obey

an order to provide or permit discovery, including an order

made under subsection (a), a court may enter such orders as

are just and may impose the sanctions enumerated in paragraphs

(A), (B), (C), (D) and (E) of subsection (b)(2). These

paragraphs authorize sanctions such as directing that certain

matters or facts shall be taken to be established; refusing to

allow the disobedient party to support or oppose designated

claims or defenses; striking the pleadings, or some part of

them; dismissing the action; or treating the failure to obey

as a contempt of court.

Finally, subsection (d) applies when a party fails to do

one of the following: (1) appear for a deposition after being

served with proper notice, (2) serve answers or objections to

interrogatories after proper service of the interrogatories,

or (3) serve a written response to a request for inspection

after proper service of the request. In these instances of a

complete failure to respond, a court may make such orders as

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are just and may impose any of the sanctions enumerated in

paragraphs (A), (B), and (C) of subsection (b)(2). Subsection

(d) further provides that a party’s failure to act in one of

the enumerated instances is not excused on the basis that the

discovery is objectionable unless the party failing to act has

applied for a protective order under Rule 4:1(c).

In finding that the trial court in the present cases

erred in dismissing the motions for judgment filed by Pauline

Brown and Elaine Hughes, the majority interprets subsection

(d) of Rule 4:12 as implicitly containing a provision like

that found in Rule 4:12(b)(2), specifically that a party must

fail to obey an order providing or permitting discovery before

the sanctions prescribed in subsections (b)(2)(A), (B), and

(C) may be imposed. Because the sanctions enumerated in these

subsections are permitted under subsection (b)(2) only when a

party has failed to obey an order to provide or permit

discovery, the majority reasons that the predicate provision

of Rule 4:12(b)(2), i.e., prior issuance of an order

compelling discovery, limits a trial court’s exercise of its

powers under subsection (d) as well as under subsection

(b)(2). I do not agree.

Subsection (a) of Rule 4:12 is implicated when a party

provides only a portion of the information sought through

discovery. Subsection (b)(2) is invoked after a trial court

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issues an order to provide or permit discovery, including an

order to compel pursuant to subsection (a), and that order is

disobeyed. However, the discovery problems addressed in

subsections (a) and (b)(2) are different from those covered by

subsection (d). Subsection (d) applies when a party

completely fails to respond to discovery requests, such as not

appearing at a deposition after proper service or not

responding at all to a set of interrogatories. In those

instances, a trial court has the discretion to make such

orders as are just and to utilize the sanctions specified in

paragraphs (A), (B), and (C) of subsection (b)(2) without

first issuing an order compelling a party to attend a

deposition, to serve answers or objections to interrogatories,

or to serve a written response to a request for inspection.

However, the majority’s construction of Rule 4:12(d) prevents

a trial court from imposing any of the permitted sanctions

directly upon a party’s complete failure to respond to

discovery requests. The majority reaches this result even

though subsection (d) addresses the most egregious discovery

abuses and provides that “the failure to act described in this

subdivision may not be excused on the ground that the

discovery sought is objectionable unless the party failing to

act has applied for a protective order . . . .”

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 In interpreting court-adopted rules, courts should apply

the same principles that govern statutory construction.

Hanson v. Commonwealth, 29 Va. App. 69, 77, 509 S.E.2d 543,

546 (1999) (citing Green v. Lewis Truck Lines, Inc., 443

S.E.2d 906, 907 (S.C. 1994)). One of those principles is

preserving the harmony of the entire scheme of a statute or

rule. However, the majority’s decision in this case ignores

the “settled principle of statutory construction that every

part of a statute is presumed to have some effect and no part

will be considered meaningless unless absolutely necessary.”

Sansom v. Board of Supervisors of Madison County, 257 Va. 589,

595, 514 S.E.2d 345, 349 (1999). Once the predicate requiring

violation of an order regarding discovery is imported to

subsection (d), that subsection is subsumed entirely into

subsection (b)(2) and, consequently, rendered meaningless.

Thus, I conclude that Rule 4:12(d) expressly provides for the

use of the sanctions contained in paragraphs (A), (B), and (C)

of subsection (b)(2) upon a party's failure to attend a

deposition, to serve answers or objections to interrogatories,

or to serve a written response to a request for inspection,

absent a prior order compelling such action. ∗

∗
As noted below, selection of the severity of the
sanction imposed is a matter of discretion depending on the
circumstances presented to the court.

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 This reading of the operation of Rule 4:12(d) comports

with the manner in which federal courts have applied Rule 37

of the Federal Rules of Civil Procedure. The pertinent terms

of both rules are essentially identical. Federal courts have

consistently interpreted subsection (d) of Rule 37 as

authorizing a trial court to impose sanctions for the

discovery abuses addressed in that subsection even though a

party has not violated any prior court order regarding

discovery. See Aziz v. Wright, 34 F.3d 587, 589 (8th Cir.

1994) (Federal Rule of Civil Procedure 37(d) allows court to

dismiss action if party fails to appear for deposition; no

motion to compel is required before such dismissal); Sigliano

v. Mendoza, 642 F.2d 309, 310 (9th Cir. 1981) ("Dismissal is a

proper sanction under Rule 37(d) for a serious or total

failure to respond to discovery even without a prior order.");

Dorey v. Dorey, 609 F.2d 1128, 1135 (5th Cir. 1980) (Rule 37

sanctions are ordinarily imposed following violation of court

order; only exceptions are situations involving Rule 37(c) and

(d); Al Barnett & Son, Inc. v. Outboard Marine Corp., 611

F.2d 32, 35 (3rd Cir. 1979) (direct order by court is not

necessary predicate to imposing sanctions under Rule 37(d));

Robison v. Transamerica Ins. Co., 368 F.2d 37, 39 (10th Cir.

1966) (sanctions under Rule 37(d) apply irrespective of

whether court has ordered delinquent party to appear for

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deposition or to answer interrogatory); but see United States

v. Certain Real Property Located at Route 1, Bryant, Alabama,

126 F.3d 1314, 1317 (11th Cir. 1997) (although Rule 37(d) does

not require issuance of order compelling discovery before

sanctions are authorized, “judicial interpretation of the

rule” requires such order or motion to compel before default

judgment may be imposed as a sanction).

The structure of Rule 37 has been described as a system

of "progressive discipline." 7 James Wm. Moore et al.,

Moore's Federal Practice ¶ 37.90 (3rd ed. 2000). I believe

that description is equally applicable to Rule 4:12. Viewed

in that manner, the function of subsection (d) in both rules

becomes apparent.

The misconduct at which subdivision (d) is directed
consists of a party's complete failure to respond, by way
of appearance, objection, answer, or motion for
protective order, to a discovery request. Such a
complete failure strikes at the very heart of the
discovery system, and threatens the fundamental
assumption on which the whole apparatus of discovery was
designed, that in the vast majority of instances, the
discovery system will be self-executing.

* * * *

Thus, if a party . . . does not appear for a
properly noticed deposition, does not answer or object to
interrogatories properly served, or does not make a
written response to a proper request for production or
inspection, the court may impose sanctions directly,
without first issuing an order to compel discovery.

Id.

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 Accordingly, I cannot conclude, as the majority does,

that the dismissal of the motions for judgment pursuant to

Rule 4:12(d) in the absence of a violation of an order

compelling discovery was legal error. Rather, I maintain that

the trial court’s decision to dismiss the plaintiff’s motions

for judgment under Rule 4:12(d) based on the failure to

respond to the defendants’ discovery requests should be

reviewed pursuant to an abuse of discretion standard. See

Rappold v. Indiana Lumbermens Mut. Ins. Co., 246 Va. 10, 15,

431 S.E.2d 302, 305 (1993) (trial court’s decision under Rule

4:12 will not be reversed unless decision amounts to abuse of

discretion). In applying that standard, I adhere to the view

that, when the most severe sanctions are imposed, one part of

the inquiry is whether a trial court could have furthered the

goals of discovery through less drastic measures. See Wilson

v. Volkswagen of America, 561 F.2d 494, 503-06 (4th Cir.

1977), cert. denied, 434 U.S. 1020 (1978) (trial court’s range

of discretion is more narrow when imposing most severe

sanction in range of sanctions available); Mutual Federal

Savings & Loan v. Richards & Assoc., 872 F.2d 88, 92 (4th Cir.

1989) (when trial court uses most severe sanction, court’s

decision “is confronted head-on by the party’s rights to a

trial by jury and a fair day in court”).

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 Applying that guiding principle, I am convinced that the

trial court’s decision to dismiss the instant cases amounted

to an abuse of discretion. In the prayers for relief

contained in the defendants’ motions, the defendants requested

the trial court to order Brown and Hughes to answer

interrogatories, to submit to depositions, and to undergo

independent medical examinations, all to be completed within

30 days. In the alternative, they asked for dismissal of the

cases with prejudice. In ruling on the defendants' motions,

the trial court declined to grant the primary relief requested

in lieu of the far more severe sanction of dismissal.

Considering not only that the trial court did not determine

whether a less drastic sanction would have resolved the

discovery abuse and at the same time furthered the goals of

discovery, but also that it did not make any findings

regarding whether the plaintiffs had acted in bad faith; to

what extent, if any, the defendants had been prejudiced by the

discovery delay; or whether plaintiffs had engaged in other

discovery abuses, I would hold that the trial court abused its

discretion by imposing the most severe sanction in these

cases.

For these reasons, I respectfully concur only in the

judgment of the majority opinion.

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