March 13 2012
DA 11-0449
IN THE SUPREME COURT OF THE STATE OF MONTANA
2012 MT 59N
JEFFREY S. RAPP,
Plaintiff and Appellant,
v.
SBC: SCHLAUCH BOTTCHER CONSTRUCTION,
Defendant and Appellee.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and For the County of Gallatin, Cause No. DV 09-961A
Honorable Holly Brown, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jeffrey S. Rapp, self-represented, Belgrade, Montana
For Appellee:
James T. Redmon, Redmon Law Firm, Bozeman, Montana
Submitted on Briefs: February 1, 2012
Decided: March 13, 2012
Filed:
__________________________________________
Clerk
Justice Michael E Wheat delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not serve
as precedent. Its case title, cause number, and disposition shall be included in this Court’s
quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.
¶2 Jeffrey Rapp (Rapp) appeals an order of the Eighteenth Judicial District Court,
Gallatin County, granting Schlauch Bottcher Construction’s (SBC) motion for default
judgment and awarding costs and attorneys’ fees to SBC. We affirm.
¶3 Rapp, a former SBC employee, sued SBC on October 6, 2009, alleging claims of
wrongful discharge, discrimination, slander, defamation, and fraud. Rapp also alleged SBC
denied him “proper compensation as dictated by the Dept. of Labor & Industry.” Rapp
sought $810,000 in damages, along with punitive damages and attorneys’ fees. For
approximately two years, SBC attempted to engage in the discovery process and mediation,
to no avail. Ultimately, SBC moved for default judgment against Rapp as a discovery
sanction.
¶4 On July 22, 2011, the District Court granted SBC’s motion for default, finding that
Rapp:
willfully and consistently refused to participate in the discovery process in any
meaningful way. It further appears that [Rapp] has failed to comply with
Orders of the Court regarding timely and complete responses to propounded
discovery, as well as his attendance at and meaningful participation in [SBC’s]
taking of [Rapp’s] deposition. [SBC] has noticed [Rapp’s] deposition no less
than six times, yet [Rapp] appeared for only one of those dates, was
uncooperative, was evasive and non-responsive in answering questions, failed
to provide requested documents, and left the deposition before it was
completed. [Rapp] further failed to appear on any date noticed by [SBC]
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following this Court’s August 10, 2010 Order granting [SBC’s] Motion to
Compel [Rapp] to appear for his deposition. [Rapp] also has failed to respond
to this Court’s August 10, 2010 Order granting [SBC’s] Motion to Compel
[Rapp] to provide an exhibit list in conjunction with his lay witness list. It
further appears that [Rapp] failed to comply with this Court’s directive in the
September 16, 2010 Amended Scheduling Order requiring both parties to
schedule and ‘participate in the mediation in good faith.’
¶5 The District Court further found that SBC was prejudiced by Rapp’s failures to
participate in discovery and follow court orders. Finally, the District Court found it warned
Rapp “on numerous occasions” of the “serious sanctions” which could be imposed for failure
to comply with court orders and the Montana Rules of Civil Procedure.
¶6 In addition to granting SBC’s motion for default and dismissing Rapp’s claims, the
District Court awarded SBC its “reasonable costs and attorney’s fees incurred in defending
this action.” It appears the amount of this award was not determined by the District Court, as
Rapp filed the present appeal before SBC could file its memorandum of costs and attorneys’
fees.
¶7 We review a district court’s imposition of discovery sanctions, including dismissal as
a discovery sanction, for an abuse of discretion. Peterman v. Herbalife International, Inc.,
2010 MT 142, ¶ 14, 356 Mont. 542, 234 P.3d 898. We have “repeatedly articulated a low-
tolerance approach toward discovery abuse, encouraging district courts not to give
transgressors second chances but rather to impose sanctions.” Peterman, ¶ 17.
¶8 In reviewing the discovery sanction imposed, in this case dismissal, we look to: (1)
whether the consequences imposed by the sanctions relate to the extent and nature of the
actual discovery abuse; (2) the extent of prejudice to the opposing party resulting from the
discovery abuse; and (3) whether the court expressly warned the abusing party of the
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consequences. Xu v. McLaughlin Research Institute for Biomedical Science, Inc., 2005 MT
209, ¶ 26, 328 Mont. 232, 119 P.3d 100. Dismissal is appropriate for refusal to comply with
discovery orders and failure to attend one’s deposition. Xu, ¶ 29.
¶9 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our
Internal Operating Rules, which provides for noncitable memorandum opinions. The issue
in this case is one of judicial discretion. After reviewing the record, we conclude there
clearly was not an abuse of discretion. We affirm and remand for the District Court to
determine the reasonable amount of costs and attorneys’ fees SBC incurred while defending
this action.
¶10 SBC also requested sanctions on appeal pursuant to M. R. App. P. 19(5). We
conclude such sanctions are not appropriate in this case.
¶11 Affirmed.
/S/ MICHAEL E WHEAT
We Concur:
/S/ MIKE McGRATH
/S/ JAMES C. NELSON
/S/ BRIAN MORRIS
/S/ JIM RICE
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