McKenzie v. Scheeler

97-106

No. 97-106

IN THE SUPREME COURT OF THE STATE OF MONTANA

1997

JAMES R. McKENZIE,

Plaintiff and Appellant,

v.

VALENTINE M. SCHEELER,

Defendant and Respondent.

APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable John W. Larson, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Terry Wallace, Attorney at Law, Missoula, Montana

For Respondent:

John R. Gordon; Reep, Spoon & Gordon, Missoula, Montana

Submitted on Briefs: June 19, 1997

Decided: December 2, 1997
Filed:

__________________________________________
Clerk

Justice Karla M. Gray delivered the Opinion of the Court.

James R. McKenzie (McKenzie) appeals from the judgment entered by the Fourth

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-106%20Opinion.htm (1 of 16)4/17/2007 4:25:45 PM
 97-106

Judicial District Court, Missoula County, on its order dismissing his complaint with
prejudice and from the District Court's subsequent order denying his motion to alter
or
amend the order of dismissal. We affirm.
We restate the issue on appeal as whether the District Court erred in dismissing
McKenzie's complaint with prejudice for failing to comply with discovery procedures
and
scheduling orders.
BACKGROUND
On December 8, 1994, McKenzie, a Canadian citizen, filed a complaint against
Valentine M. Scheeler (Scheeler) for damages allegedly resulting from a vehicle
accident
which occurred north of St. Ignatius, Montana, on December 9, 1992. The complaint
alleged that McKenzie had suffered property damages, personal injuries, pain and
suffering, emotional stress, medical expenses and loss of wages as a result of the
accident. After Scheeler answered the complaint, the District Court issued an order
directing McKenzie to consult with Scheeler regarding the scheduling of pretrial
matters
and submit a proposed scheduling order by June 23, 1995. When McKenzie failed to
submit a proposed order, Scheeler filed his own proposed scheduling order and the
court
adopted it. The scheduling order set deadlines for amending pleadings, providing
expert
witness disclosure statements, exchanging lay witness and exhibit lists, completing
discovery and filing pretrial motions. The order also designated dates by which a
settlement conference would be held and a pretrial order would be filed.
Scheeler served McKenzie with interrogatories and requests for production of
documents on April 17, 1995, which included requests for medical records regarding
any
injury or medical condition McKenzie suffered from prior to the December 9, 1992,
accident; records of medical expenses incurred by McKenzie as a result of the
accident;
copies of all documentary evidence McKenzie expected to offer at trial; copies of
McKenzie's income tax returns for a ten-year period; and copies of prescriptions and
prescription receipts for any drugs McKenzie purchased or used during the year prior
to
the accident. McKenzie did not respond until November 13, 1995. In addition to his
failure to serve the discovery responses within the 30-day time limit provided in
Rules
33(a) and 34(b), M.R.Civ.P., McKenzie's responses to many of the interrogatories and
requests for production admittedly were incomplete, erroneous or otherwise
inadequate.
During his deposition in January of 1996, McKenzie stated he would produce additional
medical, employment and financial records. He eventually provided Scheeler with
several additional documents in June of 1996, but the documents did not include the
medical records and tax returns Scheeler had requested in April of 1995.
The District Court's scheduling order required the parties to conduct a
settlement
conference by March 25, 1996. The settlement conference was not held and, when the
court noted that a settlement master report had not been filed, it ordered the
parties to file
a status report. McKenzie's status report stated that the case was behind schedule,

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-106%20Opinion.htm (2 of 16)4/17/2007 4:25:45 PM
 97-106

in
part, because of his inability to provide the complete information Scheeler had
requested.
McKenzie requested the court to modify the scheduling order to reopen discovery,
which
originally was to have been completed by February 1, 1996.
Scheeler's status report outlined McKenzie's failure to respond adequately to
the
requests for production of medical and financial documents. Scheeler also pointed
out
that McKenzie had failed to meet the deadlines contained in the court's scheduling
order
for serving Scheeler with expert witness disclosure statements, lay witness lists and
exhibit lists. Additionally, Scheeler reported that McKenzie had not arranged for a
settlement conference or even proposed a settlement master; nor had he submitted a
proposed pretrial order to Scheeler. Scheeler advised the District Court that he was
reluctant to agree to any extensions of the time frames set out in the scheduling
order and
requested that, in the event the court extended those time frames, specific
deadlines be
set which would result in dismissal of the complaint if not met by McKenzie.
In light of the status reports, the District Court set a hearing for June 26,
1996,
regarding the parties' scheduling and discovery disagreements. At the hearing,
McKenzie's counsel admitted that McKenzie's discovery responses had been both late
and
inadequate, but asserted that he was experiencing some difficulties in obtaining the
information required because of McKenzie's Canadian residency. The District Court
granted McKenzie until August 15, 1996, to provide the information Scheeler requested
and stated that, if McKenzie failed to provide the necessary information by that
deadline,
it likely would impose sanctions, which could include dismissal of the action, for
failure
to comply with the scheduling order under Rule 16, M.R.Civ.P. The District Court
further stated that Scheeler would have 10 days after McKenzie's response to object
to
any insufficient response and scheduled a hearing for September 4, 1996, to review
the
status of discovery matters. It also expressly ordered McKenzie to be present,
personally
and with counsel, at the September 4, 1996, hearing. The Minutes and Note of Ruling
following this hearing reiterated that McKenzie was granted until August 15, 1996, to
provide the requested information and that sanctions could be imposed if he failed to
comply by that date.
McKenzie delivered some of the requested documents to Scheeler by the August
15, 1996, deadline. Thereafter, Scheeler filed a timely "Notice of Insufficiency and
Objection to Plaintiff's Tender of Discovery" stating that McKenzie still had not
produced
the complete medical records and income tax returns requested. The notice also
summarized McKenzie's continued failure to provide full expert witness disclosure
statements, a lay witness list, an exhibit list, a proposed pretrial order and a
suggested

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-106%20Opinion.htm (3 of 16)4/17/2007 4:25:45 PM
 97-106

settlement master, as required by the original scheduling order. Scheeler pointed
out that
McKenzie had not offered any explanation for failing to comply with either the
discovery
requests or the court's orders, and requested that the court dismiss the complaint.
Neither McKenzie nor his counsel appeared at the September 4, 1996, hearing as
ordered by the District Court. Scheeler's counsel appeared and reiterated his
objections
to McKenzie's failure to comply with the original scheduling order and the court's
June
26, 1996, order. The District Court entered a Note of Ruling in which it dismissed
McKenzie's complaint, but specifically allowed 10 days within which McKenzie could
move to set aside the dismissal order on a showing of good cause for his failure to
respond or appear; alternatively, the court scheduled a hearing for September 13,
1996,
at which, if he appeared with all the requested discovery documents, McKenzie could
move to set aside the dismissal.
McKenzie's counsel appeared at the hearing on September 13, 1996, and
apologized for his absence from the prior hearing, stating that he had misread the
notice
scheduling the September 4, 1996, hearing; McKenzie did not appear. McKenzie's
counsel then moved the District Court to set aside its dismissal of the complaint,
asserting
that there had been no violations of the scheduling order and that, after reasonable
and
diligent efforts, he simply had been unable to locate the additional documents
requested
by Scheeler. The District Court subsequently entered a written order dismissing the
action with prejudice for McKenzie's failure to comply with discovery requests,
court-
ordered pretrial scheduling procedures and scheduling orders, and denying McKenzie's
motion to set aside the dismissal. McKenzie filed a Rule 59(g), M.R.Civ.P., motion
to
alter or amend the judgment dismissing his complaint, which the District Court
denied,
and McKenzie appeals.

DISCUSSION
Did the District Court err in dismissing McKenzie's complaint with prejudice for
failing to comply with discovery procedures and scheduling orders?

It has long been the law in Montana that a party's abuse of discovery procedures
which results in needless delay of a case should not be dealt with leniently;
transgressors
should be punished rather than patiently encouraged to cooperate in the discovery
process.
Smith v. Butte-Silver Bow County (1996), 276 Mont. 329, 332, 916 P.2d 91, 92-93
(citing Owen v. F.A. Buttrey, Co. (1981), 192 Mont. 274, 277-78, 627 P.2d 1233,
1235). Concerns related to crowded dockets and the responsibility to maintain fair
and
efficient judicial administration have shifted the traditional reluctance to impose
discovery-related sanctions to a judicial intolerance of discovery abuses. Smith,

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-106%20Opinion.htm (4 of 16)4/17/2007 4:25:45 PM
 97-106

916 P.2d
at 92. Thus, the imposition of sanctions for failure to comply with discovery
procedures
is regarded with favor. Huffine v. Boylan (1989), 239 Mont. 515, 517, 782 P.2d 77,
78
(citations omitted).
This Court generally defers to the decision of a trial court regarding
sanctions for
failure to comply with discovery procedures because the trial court is in the best
position
to know whether parties are disregarding the rights of opposing parties in the
course of
litigation and which sanctions for such conduct are most appropriate. Smith, 916
P.2d
at 93 (citing Dassori v. Roy Stanley Chevrolet Co. (1986), 224 Mont. 178, 180, 728
P.2d 430, 431). As a result, we review a district court's imposition of sanctions
for
failure to comply with discovery procedures to determine whether the court abused its
discretion. Smith, 916 P.2d at 93.
We have not previously stated the standard for reviewing a district court's
imposition of sanctions for failure to comply with a Rule 16(b), M.R.Civ.P.,
scheduling
order. We observe, however, that failing to abide by a scheduling order constitutes
a
failure to comply with the rules of procedure as well as a failure to comply with a
court
order and, in most instances, delays the timely resolution of the action. In that
regard,
the District Court's sanction for McKenzie's noncompliance with the scheduling order
was in the nature of a Rule 41(b), M.R.Civ.P., dismissal for failure "to prosecute
or to
comply with these rules or any order of court . . . ." Our standard in reviewing a
district
court's Rule 41(b) dismissal is whether the court abused its discretion. Hobble-
Diamond
Cattle Co. v. Triangle Irr. Co. (1995), 272 Mont. 37, 40, 899 P.2d 531, 533 (citation
omitted). We adopt that same abuse of discretion standard in reviewing the District
Court's dismissal of McKenzie's complaint for failure to comply with scheduling
orders.
Here, the District Court determined that McKenzie failed to comply with both
discovery procedures and its scheduling orders. On that basis, it dismissed
McKenzie's
complaint with prejudice. We review the court's determination of McKenzie's
noncompliance and the propriety of its dismissal sanction in turn.

NONCOMPLIANCE
As stated above, the District Court determined that McKenzie had failed to
comply
with both discovery procedures and the court's scheduling orders. We first address
McKenzie's arguments regarding the court's determination that he had not complied
with

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-106%20Opinion.htm (5 of 16)4/17/2007 4:25:45 PM
 97-106

discovery procedures, then address his arguments regarding his noncompliance with the
scheduling orders.
a. Noncompliance with discovery procedures
With regard to the District Court's determination that McKenzie's noncompliance
was an abuse of discovery procedures, McKenzie first asserts that any failure on his
part
to respond adequately to discovery requests was not an intentional trial strategy.
On that
basis, he contends that his noncompliance did not rise to the level of abuse of
discovery
procedures sufficient under our case law to warrant imposition of sanctions.
It is true that in First Bank (N.A.)--Billings v. Heidema (1986), 219 Mont. 373,
711 P.2d 1384, for example, we stated that " '[w]hen litigants use willful delay,
evasive
responses, and disregard of court direction as part and parcel of their trial
strategy, they
must suffer the consequences.' " First Bank, 711 P.2d at 1386 (quoting Owen, 627 P.2d
at 1236). However, it is equally clear that, in First Bank and Owen, "willful
delay" was
only one of three examples of conduct stated to be sufficient to warrant sanctions.
Moreover, sanctions for abuse of discovery procedures are imposed in order to deter
unresponsive parties in an action; it is the attitude of unresponsiveness to the
judicial
process, regardless of the intent behind that attitude, which warrants sanctions.
See, e.g.,
Huffine, 782 P.2d at 78; Landauer v. Kehrwald (1987), 225 Mont. 322, 325, 732 P.2d
839, 841; Audit Services v. Kraus Const., Inc. (1980), 189 Mont. 94, 102, 615 P.2d
183, 187-88.
In this case, McKenzie's initial responses to Scheeler's discovery requests were
untimely under Rules 33(a) and 34(b), M.R.Civ.P., and, in addition, were either
incomplete or erroneous. Despite assurances to Scheeler that the requested
information
existed and would be forthcoming, McKenzie failed to deliver complete medical and
financial records. The District Court eventually granted McKenzie's request for an
extension of time in which to respond to the discovery requests, but warned that
sanctions--including dismissal--could result if noncompliance continued. McKenzie
did
not comply. Moreover, both McKenzie and his counsel failed to appear at the hearing
set for September 4, 1996.
When McKenzie's counsel did appear on September 13, 1996, he still did not
produce the requested discovery. Instead, he attempted to justify the noncompliance
by
raising new arguments that the information requested by Scheeler was unavailable and
that the requests were unreasonable. These assertions were directly contrary to
McKenzie's previous assurances that the information existed and would be produced.
Moreover, McKenzie's counsel did not support his arguments with any testimony,
affidavits or other evidence establishing that the requested documents were
unavailable.
Unsupported arguments of counsel are not evidence and do not establish the existence
of
the matters that are argued. See, e.g., Montana Metal Buildings, Inc. v. Shapiro
(Mont.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-106%20Opinion.htm (6 of 16)4/17/2007 4:25:45 PM
 97-106

1997), 942 P.2d 694, 698, 54 St.Rep. 731, 733.
McKenzie repeatedly failed to respond adequately to Scheeler's discovery
requests.
In addition, he did not comply with the District Court's order that he respond in
full to
those discovery requests and offered no reasonable justification for his
noncompliance.
The record clearly reflects an ongoing attitude of unresponsiveness to discovery
procedures and disregard of the court's authority on McKenzie's part throughout the
course of this action.
McKenzie also argues that, pursuant to Rule 26(e), M.R.Civ.P., he was allowed
to supplement or amend his previous discovery responses at any time prior to trial
and
that the District Court's determination that he failed to comply with discovery
procedures
by not providing complete responses to Scheeler's discovery requests effectively
nullified
that Rule. McKenzie's argument is without merit.
First, Rules 33(a) and 34(b), M.R.Civ.P., require a party to respond to
interrogatories and requests for production in full, unless objected to, within 30
days of
being served with the interrogatories or requests. Accepting McKenzie's
interpretation
of Rule 26(e) would effectively nullify that duty by allowing a party to drag out the
discovery process indefinitely through continuous "supplementing" of previous
responses
in a piecemeal fashion, without ever fully responding to the interrogatory or
request for
production.
Second, McKenzie misapprehends the nature of Rule 26(e). Rule 26(e),
M.R.Civ.P., addresses the limited circumstances under which a party who has responded
to a discovery request "with a response that was complete when made . . . " must
supplement that complete response. In the present case, it is undisputed that
McKenzie's
initial responses to Scheeler's discovery requests were not complete. Thus, Rule 26
(e),
M.R.Civ.P., is inapplicable here.
We conclude that McKenzie repeatedly failed to fully and timely comply with
discovery requests propounded by Scheeler and that the District Court did not err in
determining that McKenzie's noncompliance was an abuse of discovery procedures.
b. Noncompliance with scheduling orders
McKenzie also contends that the District Court erred in determining that he
failed
to comply with its scheduling orders. In this case, the scheduling orders at issue
consist
of the original June 30, 1995, scheduling order and the June 26, 1996, order
extending
the deadline by which McKenzie was to respond fully to the discovery requests. While
the June 26, 1996, order is a discovery-related order in that it ordered McKenzie to
respond fully to Scheeler's long-pending discovery requests, it also constitutes a
scheduling order in that the District Court made a limited modification of the
discovery

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-106%20Opinion.htm (7 of 16)4/17/2007 4:25:45 PM
 97-106

deadline contained in the original scheduling order. See Rule 16(b), M.R.Civ.P.
Rule 16(b), M.R.Civ.P., provides that a district court shall enter a scheduling
order in each case delineating the time frames within which all pretrial matters
will be
completed by the parties. The District Court duly entered a scheduling order in this
action on June 30, 1995, and it is undisputed that McKenzie failed to comply with
those
portions of the scheduling order which required him to provide Scheeler with an
exhibit
list, a lay witness list, expert witness disclosure statements, a proposed pretrial
order and
a suggested settlement master.
McKenzie asserts, however, that, because the court amended the time frames in
the scheduling order, it was impossible for him to comply with the original schedule
deadlines. We disagree. At the June 26, 1996, hearing, the District Court extended
the
deadline by which McKenzie was required to fully respond to Scheeler's earlier
discovery
request until August 15, 1996. The court did not extend any of the other deadlines
contained in the original scheduling order. Absent such an extension of the other
original
deadlines, McKenzie's failure to provide Scheeler with witness and exhibit lists and
expert witness disclosure statements constituted a continuing violation of the
court's
original scheduling order.
Moreover, at the time the District Court granted McKenzie's request for an
extension of the discovery deadline, the other deadlines set in the original
scheduling
order had passed. Thus, McKenzie already had failed to comply with those deadlines.
The court's extension of the time in which McKenzie was to respond to the discovery
requests had no bearing on the fact that McKenzie had already failed to provide
Scheeler
with a witness list, an exhibit list and expert witness disclosure statements by the
originally set deadlines, and apparently made no effort to comply even after the
June 26,
1996, order extending one--and only one--deadline.
Additionally, the District Court's June 26, 1996, order extending the time in
which
McKenzie was to respond to Scheeler's discovery requests and requiring McKenzie to
appear on September 4, 1996, was, in essence, a revised scheduling order with which
McKenzie also failed to comply. He neither fully responded to the discovery requests
by the August 15, 1996, deadline nor appeared at the subsequent hearing. We conclude
that the District Court did not abuse its discretion in determining that McKenzie
failed
to comply with its scheduling orders.
REVIEW OF SANCTION IMPOSED
After determining that McKenzie had committed discovery and scheduling abuses,
the District Court dismissed McKenzie's complaint with prejudice. We review the
court's
dismissal sanction to determine whether the court abused its discretion. Smith, 916
P.2d
at 95.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-106%20Opinion.htm (8 of 16)4/17/2007 4:25:45 PM
 97-106

McKenzie does not contend that the District Court lacked authority to impose the
sanction of dismissal. Indeed, Rules 16 and 37, M.R.Civ.P., provide the District
Court
with the authority to impose the dismissal sanction. Rule 16(f), M.R.Civ.P.,
provides
that, if a party fails to obey a scheduling order, the court may make such orders as
are
just, including the dismissal sanction authorized by Rule 37(b)(2)(C), M.R.Civ.P.
Additionally, Rule 37(b)(2), M.R.Civ.P., provides that if a party fails to obey an
order
to provide discovery, the court may make such orders as are just, including "(C) [a]n
order . . . dismissing the action . . . ."
McKenzie argues, however, that any noncompliance on his part did not warrant
the imposition of sanctions at all and that, if sanctions were warranted, the court's
dismissal of his complaint with prejudice was too extreme under these
circumstances.
a. Imposition of sanctions
McKenzie asserts that he should not have been sanctioned for not complying with
the original scheduling order because the District Court's June 26, 1996, order
directing
him to comply with Scheeler's discovery requests did not also require him to comply
with
the original scheduling order and the court did not warn him that sanctions would be
imposed if he did not comply with the scheduling order. We disagree.
The June 30, 1995, scheduling order was an order of the court which, by its
terms, required McKenzie to comply with all of the deadlines set forth therein, at
all
times thereafter, unless modified by the court upon a showing of good cause. Rule 16
(b),
M.R.Civ.P. McKenzie had a continuing obligation to comply with the scheduling order
and that obligation did not evaporate merely because the deadlines set out in the
order had
passed without being met.
Moreover, even though Rule 16(f), M.R.Civ.P., which provides that a district
court may impose sanctions for failure to obey a scheduling order, does not require
that
a party be given notice of failure to comply or that sanctions could be imposed, it
is clear
that McKenzie did have such notice. Scheeler's status report, filed before the
hearing in
June of 1996, summarized McKenzie's failure to meet the various deadlines set out in
the
scheduling order and requested that, in the event the court extended any of the
originally
scheduled deadlines, any failure by McKenzie to comply with the new deadlines should
result in dismissal of the complaint. When the District Court granted McKenzie
additional time to respond to the discovery requests, it warned that failure to
comply with
the extended deadline could result in a Rule 16 sanction for not complying with a
scheduling order and that such sanction most likely would consist of dismissal of his
complaint. Further, Scheeler's subsequent notice of insufficiency--to which McKenzie
also did not respond--reiterated McKenzie's noncompliance with the original

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-106%20Opinion.htm (9 of 16)4/17/2007 4:25:45 PM
 97-106

scheduling
order and requested the District Court to enter an order dismissing the complaint.
McKenzie had clear notice that he was not in compliance with the original scheduling
order and that the court was considering the possibility of sanctions--specifically,
dismissal of the action--if the noncompliance continued.
McKenzie also asserts that Scheeler was required to file a motion requesting the
imposition of sanctions for his failure to comply with the discovery requests and the
scheduling orders before the District Court could impose any sanction, and that
Scheeler
failed to file such a motion in this case. McKenzie's foundational premise is
flawed.
Rule 16(f), M.R.Civ.P., provides that, if a party fails to comply with a Rule 16(b)
scheduling order, the court may impose such sanctions as are just on its own
initiative.
It contains no requirement that a party move for imposition of such sanctions.
As to McKenzie's failure to comply with discovery procedures, sanctions for such
conduct are governed by Rule 37, M.R.Civ.P. As discussed above, Rule 37(b)(2),
M.R.Civ.P., provides that "[i]f 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 . . . ." It contains no requirement that an opposing
party move
for sanctions. Here, the District Court entered a specific order on June 26, 1996,
requiring McKenzie to provide discovery responses to Scheeler by August 15, 1996.
The
June 26, 1996, order was, therefore, "an order to provide . . . discovery" under Rule
37(b)(2), M.R.Civ.P. McKenzie did not comply with that order. Thus, Rule 37(b)(2),
M.R.Civ.P., authorized the court to sanction McKenzie for that noncompliance.
We conclude that the District Court did not abuse its discretion in determining
that
McKenzie's noncompliance with the scheduling orders and discovery procedures
warranted the imposition of sanctions.
b. Dismissal sanction
First, McKenzie argues that the District Court erred in relying on Dassori as
support for dismissal of the complaint in the present case. He contends that
Dassori is
clearly distinguishable because "[t]here was no pattern in this case of either the
type or
extent of dilatory 'tactics' referred to in Dassori." We disagree.
In Dassori, the plaintiff requested and received an additional month in which to
answer interrogatories served on him the previous month. The plaintiff failed to
respond
within the extended time. Dassori, 728 P.2d at 431. Seven months later, the
defendants
filed a motion to dismiss the complaint based on the plaintiff's failure to respond;
a
hearing was held on the motion to dismiss approximately five months thereafter.
Dassori,
728 P.2d at 431. Although the plaintiff appeared at the hearing and presented the
court
with the required discovery responses, the district court dismissed the complaint.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-106%20Opinion.htm (10 of 16)4/17/2007 4:25:45 PM
 97-106

Dassori, 728 P.2d at 431. We affirmed the dismissal sanction, reiterating our
deference
to a district court's decision regarding the imposition of sanctions on parties who
fail to
comply with discovery procedures. Dassori, 728 P.2d at 431.
In the present case, Scheeler served his discovery requests on McKenzie on April
17, 1995. McKenzie did not object or request an extension of the time in which to
respond, and did not respond at all until November 13, 1995. Moreover, his tardy
responses were incomplete. Two months later, during his deposition, McKenzie stated
that he would produce additional financial and medical records for Scheeler, but he
produced nothing until June of 1996, and his production of documents at that time
also
was incomplete. Eventually, the District Court set a hearing to discuss the parties'
discovery and scheduling disagreements, at which the court granted McKenzie
additional
time to respond to the discovery requests. McKenzie still failed to comply, despite
assurances to both Scheeler and the District Court that the requested documents
existed
and were available. Finally, seventeen months after Scheeler served the initial
discovery
requests on McKenzie, the court dismissed McKenzie's complaint for failure to comply
with discovery procedures and scheduling orders.
The present case reveals a pattern of conduct by McKenzie throughout the
proceedings at least comparable to, if not more egregious than, that before us in
Dassori.
In Dassori, the dismissal of the plaintiff's complaint resulted from a twelve-month
delay
in providing discovery responses. Here, the delay was sixteen months. Furthermore,
unlike the plaintiff in Dassori, McKenzie never produced complete responses to
Scheeler's discovery requests. On the basis of McKenzie's discovery abuses alone,
Dassori provides sufficient authority for the District Court's dismissal of the
complaint.
Moreover, in addition to his discovery abuses, McKenzie also failed to comply
with the deadlines set out in the court's original scheduling order and he and his
attorney
both failed to appear at a hearing the court specifically ordered them to attend.
He also
failed to comply with the court's order requiring him to fully respond to the
discovery
requests and provided no reasonable justification for his failure to comply.
McKenzie's
disregard of the District Court's orders provides significant additional support for
the
court's determination that the sanction of dismissal was appropriate.
As discussed above, this Court generally defers to the decision of a district
court
regarding sanctions for abuses of controlling procedural rules because that court is
in the
best position to know which sanction is most appropriate under the circumstances of
the
case. See Smith, 916 P.2d at 93. While dismissal is an extreme sanction, the record
before us indicates a pattern of discovery abuses and disregard of court orders by

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-106%20Opinion.htm (11 of 16)4/17/2007 4:25:45 PM
 97-106

McKenzie throughout the course of this litigation which effectively halted the
discovery
process and delayed any progress toward resolving the action.
Notwithstanding this abysmal record, McKenzie contends that the District Court
abused its discretion in dismissing the complaint. First, he argues that, because
he did
produce at least some of the requested documents and made a good faith effort to
substantially comply with the requested discovery, the court should have imposed a
sanction less extreme than dismissal.
Scheeler's requests for production included requests for medical records
regarding
any injury or medical condition from which McKenzie suffered prior to the December
9, 1992, accident; medical records relating to any injuries McKenzie claimed to have
suffered as a result of the accident; records of medical expenses incurred by
McKenzie
as a result of the accident; copies of prescriptions and receipts for any medications
McKenzie purchased or used during the year prior to the accident; and copies of his
income tax returns for a ten-year period.
While the record before us is not altogether clear regarding what documents were
produced by McKenzie or the extent to which he complied with the discovery requests,
it appears that McKenzie's initial responses to the requests for production
consisted of
two letters from doctors, a credit card charge slip and incomplete tax records
covering
a period of four years. The additional documents produced by McKenzie on June 4,
1996, apparently consisted of two letters and several forms relating to McKenzie's
employment history with two trucking companies, a letter signed by Mrs. Donna
McKenzie stating that McKenzie was disabled and in bed between June and November
of some unspecified year, and a computer printout from a physical therapy clinic
listing
the dates on which McKenzie visited the clinic. Finally, McKenzie apparently
produced
tax returns for a portion of the time period requested, two medical reports and a
computer
printout of visits to a physician during June and July of 1993.
Considering the limited documents of record and the absence of any testimony,
affidavits or other evidence detailing the efforts McKenzie may have made to procure
additional documents or the reasons for any inability to procure such documents, we
are
reluctant to determine whether McKenzie's efforts were, indeed, in good faith and
substantial. When this Court cannot make a ready, confident and accurate
determination
of a party's good faith compliance with the discovery process, we will presume the
correctness of a district court's action in imposing sanctions. Landauer, 732 P.2d
at 840
(citations omitted); Dassori, 728 P.2d at 431(citations omitted). On the record
before us,
we will not disturb the District Court's determination that dismissal of the
complaint was
the appropriate sanction for McKenzie's failure to comply with the discovery
requests.
Finally, McKenzie asserts that, contrary to the requirements set forth in Smith,

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-106%20Opinion.htm (12 of 16)4/17/2007 4:25:45 PM
 97-106

dismissal of his complaint was inappropriate because there was no indication that his
failure to comply with discovery procedures or the scheduling order resulted in any
prejudice to Scheeler. In this regard, we stated in Smith that "[t]he extent of the
'consequences' imposed by a district court . . . should relate to the extent and
nature of
the actual discovery abuse and the extent of the prejudice to the opposing party
which
results therefrom." Smith, 916 P.2d at 97.
The accident at issue in this case occurred in December of 1992 and McKenzie
filed his complaint against Scheeler in December of 1994. Scheeler subsequently
served
interrogatories and requests for production on April 17, 1995. Over the course of
the
following seventeen months, McKenzie continuously failed to provide complete
responses
to the discovery requests and offered no justification for his failure to respond
fully; he
also failed to comply with a court order requiring him to provide complete discovery
responses to Scheeler. Thus, when the District Court dismissed McKenzie's complaint,
nearly four years had passed since the accident and two years had elapsed since he
filed
his complaint. In that period of time, McKenzie still had not provided Scheeler
with the
most basic information documenting his various claims for personal injuries, pain and
suffering, medical expenses and lost wages. Without such information, Scheeler was
prevented from assessing the bases for, and developing a defense against, McKenzie's
claims.
Such a refusal to provide discovery essentially prevents the case from
progressing
and is the precise reason for the availability of sanctions pursuant to Rule 37, M.R.
Civ.P.
See In re Marriage of Massey (1987), 225 Mont. 394, 398, 732 P.2d 1341, 1344. When
a party's failure to comply with discovery procedures effectively halts the discovery
process, it results in impermissible prejudice to the opposing party. See First
Bank, 711
P.2d at 1386 (citation omitted). Thus, McKenzie's failure to comply with discovery
procedures was, in itself, prejudicial to Scheeler.
Moreover, while the District Court made no finding regarding the extent to which
Scheeler had been prejudiced by McKenzie's failure to comply with discovery
procedures
and scheduling orders, it clearly found McKenzie's noncompliance, which it
characterized
as "flagrant, repeated and continuous," to be so extensive as to warrant a dismissal
in its
own right. We agree. McKenzie repeatedly ignored the rules governing discovery and
disregarded court orders. Although the extent of the discovery abuse and prejudice
to an
opposing party are both factors to be considered in determining an appropriate
sanction,
a party's disregard of the court's orders and authority is an additional
consideration. In
this case, McKenzie's continuous discovery abuses, his unresponsive attitude toward

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-106%20Opinion.htm (13 of 16)4/17/2007 4:25:45 PM
 97-106

the
judicial process and his disregard of the District Court's authority, combined with
the
inherent prejudice to Scheeler, clearly warranted the sanction of dismissal. We
conclude
that the District Court did not abuse its discretion in dismissing McKenzie's
complaint
with prejudice as a sanction for his failure to comply with discovery requests and
scheduling orders.
Finally, we address the District Court's denial of McKenzie's motion to alter or
amend its order dismissing his complaint which was based, in part, on McKenzie's
failure
to present the court with any reason justifying his continued failure to comply with
the
court's orders. Our standard of review of a district court's denial of a motion to
alter or
amend is whether the court abused its discretion. Estate of Nielsen v. Pardis
(1994), 265
Mont. 470, 478, 878 P.2d 234, 238.
In light of our conclusion that the District Court did not abuse its discretion
in
dismissing the complaint, we further conclude that the court did not abuse its
discretion
in denying McKenzie's motion to alter or amend the order of dismissal. We hold that
the District Court did not err in dismissing McKenzie's complaint with prejudice
based
on his failure to comply with discovery procedures and scheduling orders.
Affirmed.

/S/ KARLA M. GRAY

We concur:

/S/ JAMES C. NELSON
/S/ JIM REGNIER
/S/ WILLIAM E. HUNT, SR.

Justice W. William Leaphart, dissenting.

I concur with the conclusion that McKenzie's failure to timely respond to the
discovery requests constitutes noncompliance with both the rules of procedure and the
court's scheduling order. I further agree that the court did not abuse its
discretion in
determining that McKenzie's conduct was sanctionable. I would hold, however, that
the
District Court abused its discretion in its choice of sanctions; that is, in
dismissing the
complaint with prejudice.
The Court notes that a dismissal for failure to comply with a Rule 16, M.R.Civ.
P.,
scheduling order is akin to a dismissal for failure to prosecute under Rule 41(b),

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-106%20Opinion.htm (14 of 16)4/17/2007 4:25:45 PM
 97-106

M.R.Civ.P. The Court cites our decision in Hobble-Diamond Cattle Co. v. Triangle
Irr.
Co. (1995), 272 Mont. 37, 40, 899 P.2d 531, 533, for the proposition that we review
Rule 41(b) dismissals for an abuse of discretion. As noted in Hobble-Diamond, "we
have
established four factors to be considered in determining whether a district court
abused
its discretion in dismissing an action under Rule 41(b), M.R.Civ.P.: 1) plaintiff's
diligence in prosecuting the claim; 2) prejudice to the defense caused by
plaintiff's delay;
3) availability of alternate sanctions; and 4) existence of a warning that the case
is in
danger of dismissal." Hobble-Diamond, 899 P.2d at 534.
Here we have a period of 16 months in which the plaintiff failed to adequately
respond to discovery requests. While I agree that a 16-month delay is sanctionable,
I
seriously question whether a dismissal with prejudice is appropriate. Although
there is
no definitive standard as to how long a delay must be before a dismissal is
warranted, I
note that we have held that dismissal after a delay of "slightly more than two and
one-half
years" was held an abuse of discretion in Becky v. Norwest Bank Dillon, N.A. (1990),
245 Mont. 1, 8, 798 P.2d 1011, 1016.
Accordingly, given that the 16-month delay was not as egregious as others we
have
addressed, combined with the fact that the only prejudice to the defendant was the
prejudice which is presumed from the delay itself, I would require that the District
Court
consider alternate sanctions before invoking the extreme sanction of dismissal.
"[D]ismissals should be imposed sparingly and must remain the exception rather than
the
rule." Hobble-Diamond, 899 P.2d at 535. In Hobble-Diamond, we reversed a dismissal
under Rule 41(b) where there had been a one-year delay. We determined that "the
'availability of alternate sanctions' factor weighs in Hobble-Diamond's favor given
the
plethora of alternate sanctions and remedies available and the period of delay at
issue."
Hobble-Diamond, 899 P.2d at 535. The 16-month period in the present case is not
significantly longer than the 12-month delay in Hobble-Diamond. As in Hobble-
Diamond, the District Court should have looked to the plethora of less severe
alternate
sanctions, for example refusing to allow McKenzie to support designated claims or
prohibiting him from introducing designated matters in evidence. Rule 37(b)(2)(B),
M.R.Civ.P. For these reasons, I would reverse the dismissal and remand for
appropriate
alternate sanctions under Rule 37(b)(2), M.R.Civ.P.

/S/ W. WILLIAM LEAPHART

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-106%20Opinion.htm (15 of 16)4/17/2007 4:25:45 PM
97-106

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-106%20Opinion.htm (16 of 16)4/17/2007 4:25:45 PM