Opinion
358944
01-04-2022
Ernesto Arellano v. US Ecology Livonia Inc
LC No. 19-007067-NO
Kirsten Frank Kelly Michael J. Riordan Judges
ORDER
CYNTHIA DIANE STEPHENS PRESIDING JUDGE
Pursuant to MCR 7.205(E)(2), in lieu of granting the application for leave to appeal, the trial court's October 1, 2021 order is VACATED, and the matter REMANDED for reconsideration. The trial court, without conducting a hearing and without providing any written explanation, granted a motion for a default against defendant as a sanction for purported discovery violations. While a default is one potential sanction at the court's disposal, it is "a drastic measure and should be used with caution." Frankenmuth Mut Ins Co v ACO, Inc, 193 Mich.App. 389, 396; 484 N.W.2d 718 (1992). Several factors must be considered before imposing this drastic sanction. See id. at 396-397; Traxler v Ford Motor Co, 227 Mich.App. 276, 286; 576 N.W.2d 398 (1998). "The court must also evaluate on the record other available options before concluding that a drastic sanction is warranted." Frankenmuth Mut Ins Co, 193 Mich.App. at 397. "The sanction of default judgment should be employed only when there has been a flagrant and wanton refusal to facilitate discovery, that is, the failure must be conscious or intentional, not accidental or involuntary." Id. The trial court wholly failed to articulate its reasoning, and did not comply with its obligation to evaluate any other potential sanctions on the record. On remand, the trial court is directed to reconsider the motion and make a record of its decision.
This order is to have immediate effect. MCR 7.215(F)(2). We do not retain jurisdiction.