No. 8 6 - 3 0 0
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
IN RE THE MARRIAGE OF
GWEN ELIZABETH !nJ\SSEY,
Petitioner and Respondent,
and
GEORGE K E N N E T H REISER,
Respondent and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Joseph B. Gary, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Meloy Law Firm; Peter M. Meloy, Helena, Montana
For Respondent:
James J. Screnar, Bozeman, Montana
- -
Submitted on Briefs: Oct. 23, 1 9 8 6
Decided: February 24, 1987
Filed: FEB 2 4 1987
Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
George K. Reiser appeals from an order of the District
Court of the Eighteenth Judicial District, Gallatin County,
denying his motion to set aside a default judgment entered
against him. We affirm.
The issue involved in this case takes place in the
context of a petition for dissolution of marriage filed over
two years ago. On August 18, 1979, George Reiser, appellant,
and Gwen Massey, respondent, were married in Bozeman, Mon-
tana. Marital problems subsequently arose, and on June 18,
1984, Massey filed a petition for dissolution of marriage.
On the same day, Massey filed a set of interrogatories
propounded to Reiser. Several days later, Reiser was person-
ally served with a summons requiring him to answer the peti-
tion. On July 10, 1984, Reiser was represented by attorney
Karl Seel. However, what follows is a series of delays
imposed by Reiser which had the effect of bringing the dis-
covery process to a standstill.
On September 27, 1984, the court entered an order
declaring void a custody, support and property settlement
agreement entered into by Massey and Reiser in 1982. Reiser
appealed that order to the Montana Supreme Court. However,
his appeal was dismissed on January 25, 1985, for failure to
file briefs in the matter.
On December 3, 1985, Massey filed a motion for sanc-
tions in the District Court, requesting the court to impose
sanctions under Rule 37(d), M.R.Civ.P., for failure by Reiser
to answer the interrogatories served on him on June 19, 1984.
In her brief supporting the motion, Massey requested the
court to grant her the right to proceed by default and to
preclude Reiser from filing any response. A copy of the
motion and supporting brief was served on Reiser's attorney,
Karl Seel. Reiser was further advised that the hearing on
the motion would take place on December 9, 1985.
The hearing was held on December 9, and neither Reiser
nor his attorney appeared. The court ordered that Reiser had
fifteen days to complete the answers to the interrogatories.
The order further stated that should Reiser fail to do so
within that time, he would be precluded from filing any
responsive pleadings, and Massey would be permitted to pro-
ceed by default. This order was served on Reiser's attorney.
No response of any kind was submitted by Reiser.
On January 13, 1986, the court held another hearing on
the motion for sanctions. Again, neither Reiser nor his
attorney appeared. Since Reiser had not completed the an-
swers to the interrogatories and had not offered any excuse
for his failure to do so, the court entered a default judg-
ment in Massey's favor.
On January 20, 1986, notice of entry of judgment was
personally served on Reiser and on his attorney. However, it
was not until April 16, 1986, that Reiser filed a motion to
set aside the default judgment. After a hearing on the
motion and briefing by both parties, the court denied the
motion to set aside the judgment. From this order, Reiser
appeals.
The sole issue presented by this appeal is whether the
District Court abused its discretion in entering the default
judgment against Reiser as a sanction for his failure to
comply with the court's order of December 11, 1985.
Reiser contends that the default judgment should be set
aside because he was never given proper notice of the appli-
cation for judgment as required by Rule 55(b), M.R.Civ.P. If
this were simply a default judgment matter, appellant's
argument might have some merit. However, Rule 55 does not
apply in this situation; rather, Rule 37, M.R.Civ.P., is the
controlling statute.
Rule 37 provides for the imposition of sanctions for
failure to make discovery. Rule 37 (d) states:
If a party ... fails ... (2) to
serve answers or objections to interrog-
atories submitted under Rule 33, after
proper service of the interrogatories,
. .. 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.
Rule 37 (b) (2) provides in part:
Sanctions by court in which action is
pending. If a party ... fails to obey
an order to provide or permit discovery,
... 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:
(C) An order striking out pleadings or
parts thereof, or staying further pro-
ceedings until the order is obeyed, or
dismissing the action or proceeding or
any part thereof, or rendering a judg-
ment by default against the disobedient
party; . . .
It is obvious that Rule 37 does not require notice of appli-
cation for default judgment to be served on the uncooperative
party. Rather, it authorizes the court to impose immediate
sanctions on a party who fails to comply with the court's
order compelling discovery.
Reiser maintains that the notice requirements of Rule
55 must still be complied with before a default judgment can
be entered, even though it is entered as a sanction pursuant
to Rule 37. We do not agree. The authority provided to
courts under Rule 3? is independent of the authority provided
to them under the other rules. Rule 37 is a specific statute
pertaining to the consequences of a party's failure to allow
discovery. If a party violates a court order compelling
discovery, as Reiser did in this case, Rule 37 authorizes the
court to impose the sanctions provided therein. One of the
sanctions allowed is entry of default judgment.
The United States Supreme Court has considered whether
Rule 37 grants a court sufficient authority to impose the
sanctions provided therein, independent of any other authori-
ty the court may possess. In Societe Internationale v.
Rogers (1958), 357 U.S. 197, 78 S.Ct. 1087, 2 L.Ed.2d 1255,
the District Court dismissed with prejudice a complaint
because the plaintiff had failed to comply fully with a
pretrial production order. The court found power to take
this action under Rule 37(b)(2), Fed.R.Civ.P., as well as its
inherent power. This rule is the same in all pertinent
respects as Montana's Rule 37. The Court of Appeals affirmed
the dismissal but not on the basis of Rule 37. It concluded
that the District Court was empowered to dismiss the com-
plaint by Rule 41 (b), Fed.R.Civ. P., and by its own inherent
power. The Supreme Court considered the source of a district
court's authority to dismiss a complaint for failure of the
plaintiff to comply with a production order. It stated:
In our opinion, whether a court has
power to dismiss a complaint because of
noncompliance witx a production order
depends exclusively upon - -37, which
Rule
addresses itself with particularity to
the consequences of a failure to make
discovery by listing a variety of reme-
dies which a court may employ as well as
by authorizing any order which is
"just." There is no need to resort to
Rule 41 (b), which appears in that part
of the Rules concerned with trials and
which lacks such specific references to
discovery. [Emphasis added.]
Societe Internationale, 357 U.S. at 207, 78 S.Ct. at 1093, 2
L.Ed.2d at 1264. The federal courts have followed this
holding by affirming the rulings of district courts entering
default judgments against various parties for failure to
comply with their orders compelling discovery. The defaults
were entered as a sanction under Rule 37, and the moving
party was not required to serve notice of application for
judgment prior to the entry of default. Anderson v. Air
West, Inc. (9th Cir. 1976), 542 F.2d 1090, 1093; aski ins v.
Lister (8th Cir. 1980), 626 F.2d 42, 43.
Massey filed a motion for sanctions pursuant to Rule 37
on December 3, 1985. Hearing on that motion was held on
December 9, and Reiser did not appear. The court, exercising
extreme leniency and patience, ordered that Reiser had fif-
teen days within which to answer the interrogatories. If he
did not comply, he would not be permitted to file any respon-
sive pleadings and Massey would be permitted to proceed by
default. Reiser was silent. Thus, on January 13, 1986, the
court entered a default judgment in Massey's favor.
We find no abuse of discretion in the court's ruling.
The petition for dissolution and the interrogatories were
served on Reiser in June 1984. No answer was ever filed.
The court gave Reiser more than enough time to respond to the
interrogatories. For over one and one-half years, no re-
sponse was ever filed by Reiser and no excuse for his recal-
citrance was ever offered. Furthermore, Reiser willfully
disobeyed an order of the court compelling him to answer the
interrogatories. Reiser's refusal to allow discovery pre-
vented the progress of Massey's case. This type of behavior
is the precise target of Rule 37. We find that the District
Court was well within its discretion in imposing the sanction
of default judgment.
Finally, Reiser urges that if fault existed, it was
caused by his attorney and not by Reiser himself. However,
Reiser does not offer any facts showing that he was not
apprised of the progress of the case. From the initial
filing of the petition, to the court's denial of his motion
to set aside the judgment, Reiser was represented by the same
attorney. There are no facts indicating that Reiser was
abandoned by his attorney. Moreover, over eighteen months
elapsed from personal service of the summons to default
judgment, yet Reiser made no response or communication of any
kind. On the record before us, we conclude that Reiser, as
well as his attorney, willfully and flagrantly violated an
order of the court mandating discovery. Reiser has not
presented any facts which would indicate his good faith and
lack of fault.
We affirm the District Court's denial of Reiser's
motion to set aside default judgment.
J a.ywA
Chief Justice
4
We concur: