Opinion
No. 12–P–1331.
2013-09-24
Tyrone CALLOWAY v. AVALON SUMMIT by AVALONBAY COMMUNITIES, INC.
By the Court (HANLON, BROWN & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Tyrone Calloway, appeals from a judgment dismissing his complaint for noncompliance with two separate discovery orders. We affirm.
While this case began as a summary process matter in the Quincy District Court, the present appeal arises from a matter in the Superior Court where Calloway filed a complaint, alleging, among other things, a breach of contract relating to his tenancy with the defendant landlord, Avalon Summit By AvalonBay Communities, Inc. (Avalon). On September 21, 2010, Avalon served Calloway with document requests and interrogatories. The ensuing discovery litigation occupied more than a year and the attention of at least two motion judges.
On April 22, 2011, the first motion judge allowed Avalon's motion to compel discovery, ordering Calloway to respond to all outstanding discovery requests within thirty days. On May 18, 2011, the same judge denied Calloway's “emergency motion” for an extension of time to produce discovery and, overruling his objection to the allowance of Avalon's motion to compel, the judge ordered Calloway to “comply with his discovery obligations as ordered by the court.” Calloway then provided supplemental responses to interrogatories that were evasive or incomplete; he failed to produce any documents.
On August 11, 2011, a second judge denied Avalon's motion to dismiss and permitted Calloway an additional thirty days to respond to the earlier discovery orders; the judge also ordered Avalon to provide previously ordered discovery within thirty days. On August 22, 2011, Calloway provided additional supplemental responses to interrogatories and document requests; again, the responses were evasive and incomplete. On September 29, 2011, Calloway provided another supplemental response to document requests, but failed to produce any actual documents.
After a hearing, on November 9, 2011, the first motion judge allowed Avalon's second motion to dismiss pursuant to Mass.R.Civ.P. 37(b)(2), as amended 390 Mass. 1208 (1994), based on Calloway's failure to comply with previously mandated discovery deadlines. In allowing the motion, the judge wrote that she was “familiar with the history of [Calloway's] recalcitrance on his discovery obligations” and paid “particular attention to [his] purported attempts to give the impression that he has complied.” In the end, she was “not persuaded” that Calloway had, in fact, complied. On appeal, Calloway argues that the judge erred (1) by failing to enter a default judgment against Avalon for untimely answers to discovery requests and for noncompliance with Superior Court Rule 9C, (2) by failing to fulfill a duty to examine whether Avalon committed fraud with regard to a hearing continuance, (3) by failing to reverse or enter a default judgment against Avalon for contempt and failing to answer or oppose Calloway's Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), motion, and (4) by failing to inquire as to whether Avalon initiated a rule 9C conference with Calloway.
On November 28, 2011, Calloway filed a motion for reconsideration; however, he does not raise the denial of that motion on appeal, but rather, argues only that Avalon failed to file an opposition. We therefore do not address this argument.
“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,” including “dismissing the action.” Mass. R.Civ.P. 37(b)(2)(C). In evaluating whether the judge abused her discretion in entering a judgment of dismissal, we examine whether the judge's “exercise has been characterized by arbitrary determination, capricious disposition, whimsical thinking, or idiosyncratic choice.” Clamp–All Corp. v. Foresta, 53 Mass.App.Ct. 795, 805 (2002) (citation omitted).
We see no abuse of discretion here; under the rules, it was within the judge's discretion to sanction Calloway's noncompliance by dismissing his complaint. See Mass.R.Civ.P. 37(b)(2)(C); Keene v. Brigham & Women's Hosp., Inc., 56 Mass.App.Ct. 10, 24 (2002). As evidenced by the record, Calloway's noncompliance with the judges' discovery orders continued throughout the pendency of the case. Even after he was given several extensions of time to comply and then compelled to respond, his responses were, at best, evasive and/or incomplete. Under the rules such responses are treated as “a failure to answer.” Mass.R.Civ.P. 37(a)(3). Nothing in the record presented demonstrates that the order was unjust. See Greenleaf v. Massachusetts Bay Transp. Authy., 22 Mass.App.Ct. 426, 429 (1986).
An example of the incomplete answers is the following: “ Question 18 Identify each person that you intend to call as a witness, at any hearing or trial in this matter ... [and] the substance of the facts and opinions to which the person is expected to testify. [ Answer ] Objection, without waiving of such objection; Although; the defendants has reached its limit of allowable questions for interrogatories, Plaintiff intends to call Quincy Police, UPS drivers, Avalon Employees, Quincy Hospital and Harvard Vanguard personnel, doctors and other, ... Plaintiff intends to call Mr. Brown of Brown's Lampshades plaintiff's physicians at the Quincy Medical Center, Harvard Vanguard and Faulkner Hospitals and others, plaintiff also intends to call Quincy Police Officers, UPS drivers and pass and present employees of Avalon.”
Calloway also argues that Avalon failed to comply with Superior Court rule 9C in neglecting to include the required “certificate” with its motion to dismiss; the purpose of the certificate is give notice of Avalon's initiative to confer with the parties in making a “good faith effort to narrow areas of disagreement.” Superior Court Rule 9C. Although a separate certificate was not appended to Avalon's motion to dismiss, we perceive no abuse of discretion in the judge's decision to accept the representations in Avalon's motion as a substitute for a rule 9C certification ; functionally, the statement accomplished the same purpose. Cf. Meschi v. Iverson, 60 Mass.App.Ct. 678, 682 n. 10 (2004).
In paragraph three of the “relevant facts” section of the defendant's motion to dismiss, the defendant states that the “parties engaged in a 9C conference on May 9, 2011 to discuss the inadequacy of the supplemental responses.”
We have carefully considered the remaining issues raised in the plaintiff's brief and find them to be without merit.,
The requests of each party for appellate attorney's fees and costs is denied.
Avalon's motion to file late its brief and appendix is allowed. Calloway's objection to the appellee nonconforming brief and motion in opposition is denied.
Judgment affirmed.