Opinion
17-P-1340
04-23-2020
Justin DE MATOS v. CITY OF FALL RIVER & Others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Justin De Matos, an inmate acting pro se, appeals from a Superior Court judgment dismissing his complaint against the city of Fall River, the Fall River Police Department, and one of the police department's officers (collectively, the defendants), because the plaintiff failed to comply with court orders that required him to submit to a deposition. We affirm.
Background. On January 30, 2015, the plaintiff filed a complaint for damages alleging that he was injured as a result of the police officer's negligence. The case was designated as "Fast Track" pursuant to Superior Court Standing Order 1-88, with a discovery deadline of November 27, 2015, and a final pretrial conference date of May 24, 2016. The defendants had not noticed the plaintiff's deposition prior to the pretrial conference, and instead asked the judge who presided at that conference for permission to depose the plaintiff beyond the discovery deadline set forth in the court's tracking order. The plaintiff did not oppose the request, which the judge allowed. An order entered to allow for the taking of the plaintiff's deposition.
The plaintiff's motion to strike the defendants' supplemental record appendix is denied.
Following proper notice to the plaintiff, and with the court order in hand, counsel for the defendants traveled one hour to the correctional institution where the plaintiff resided in order to take his deposition. However, the plaintiff refused to be deposed, claiming not to be the person identified in the order. The defendants therefore obtained a second court order to conduct the plaintiff's deposition. On September 22, 2016, before traveling to depose the plaintiff, counsel for the defendants called the correctional facility where the plaintiff resided and spoke to the plaintiff, who advised that he would not submit to a deposition. The defendants therefore sought and obtained a third court order, which entered with a warning to the plaintiff "that continued refusal [to be deposed] can result in other sanctions, including dismissal of [the] complaint." Still, on October 26, 2016, the plaintiff refused to be deposed. Consequently, on December 6, 2016, after a hearing on the defendants' further motion to compel the plaintiff's deposition, the defendants obtained a fourth court order compelling the plaintiff's deposition (deposition order). At the hearing on that motion, the judge who issued the deposition order warned the plaintiff that his refusal to comply could result in dismissal of his lawsuit. The judge repeated that warning in a written decision denying the plaintiff's subsequent motion for relief from the deposition order.
The order identified the plaintiff as "Justin de Matos" instead of "Justin De Matos."
This time, the plaintiff claimed that he had not seen the third court order.
On December 15, 2016, the plaintiff executed an affidavit expressing his intention to "reject any further Reviews or Status conferences" in his negligence case. On January 10, 2017, pursuant to a proper notice, the defendants again attempted to depose the plaintiff. The plaintiff refused to be sworn or to answer any questions, stating that the deposition order was "void" because the defendants' motion seeking the order was filed outside of the tracking order's discovery deadline. On February 24, 2017, the defendants moved to dismiss the plaintiff's complaint pursuant to Mass. R. Civ. P. 37 (b) (2), as amended, 390 Mass. 1208 (1984), and Mass. R. Civ. P. 41 (b) (2), 365 Mass. 803 (1974), as a sanction for the plaintiff's refusal to be deposed. The plaintiff opposed the motion to dismiss and also filed a motion for summary judgment on his negligence complaint. See Mass. R. Civ. P. 56, 365 Mass. 824 (1974). After reviewing the docket and the parties' submissions, a judge (motion judge) "concluded that the plaintiff had refused to comply with four court orders for the taking of his deposition by the defendants." She allowed the motion to dismiss, and judgment entered accordingly. The plaintiff timely appealed.
Procedural framework. "After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon oral examination." Mass. R. Civ. P. 30 (a), 365 Mass. 780 (1974). For cases assigned to "Fast Track," nonexpert depositions must be completed within ten months of the filing of the complaint. Standing Order 1-88 (G) (i) (5) & n.8. All motions shall be filed within that time period, "unless the proponent of the motion first moves for and obtains leave of court to file beyond the designated tracking deadline." Standing Order 1-88 (C) (4). Motions shall be made in writing "unless made during a hearing or trial." Mass. R. Civ. P. 7 (b) (1), 365 Mass. 748 (1974). "The court may for cause shown enlarge or shorten the time for taking the deposition." Mass. R. Civ. P. 30 (b) (3), 365 Mass. 780 (1974). See Standing Order 1-88 (D) (1) ("Amendments to the tracking order of a case may be granted upon motion ... and for good cause shown").
A deponent's failure to be sworn or to answer a question after being directed to do so by the court "may be considered a contempt of that court." Mass. R. Civ. P. 37 (b) (1), as appearing in 423 Mass. 1406 (1996). Sanctions available to a judge for a party's failure to engage in discovery include the entry of an order dismissing the action. Mass R. Civ. P. 37 (b) (2) (C), as amended, 390 Mass. 1208 (1984). "On motion of the defendant, with notice, the court [also] may, in its discretion, dismiss any action for failure of the plaintiff ... to comply with these rules or any order of court." Mass. R. Civ. P. 41 (b) (2), 365 Mass. 803 (1974). Such a dismissal "operates as an adjudication upon the merits." Mass. R. Civ. P. 41 (b) (3), as amended, 454 Mass. 1403 (2009).
Standard of review. The motion judge who dismissed the plaintiff's complaint as a sanction for the plaintiff's noncompliance had the inherent power to enforce the prior court orders, see Sommer v. Maharaj, 451 Mass. 615, 621 (2008), and the discretion to impose that particular sanction for the plaintiff's refusal to submit to a deposition, see Short v. Marinas USA Ltd. Partnership, 78 Mass. App. Ct. 848, 852 (2011). We review the decision to impose a sanction, as well as the
appropriateness of the sanction, for an abuse of that discretion. Mattoon v. Pittsfield, 56 Mass. App. Ct. 124, 131-132 (2002). In general, "we are loath to interfere with orders arising out of the management of a case by the trial judge." Maywood Bldrs. Supply Co. v. Kaplan, 22 Mass. App. Ct. 944, 945 (1986). Thus, we will find an abuse of discretion only where we conclude that the judge made a clear error of judgment in weighing the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives. L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). The factors we consider in our analysis "include the relative clarity with which it appears that the judgment was unjust, the relative fault of parties, and the balance to be struck." Greenleaf v. Massachusetts Bay Transp. Auth., 22 Mass. App. Ct. 426, 429 (1986).
Discussion. The plaintiff claims that the motion judge abused her discretion when she concluded that the plaintiff's refusal to comply with the prior court orders, despite being warned that dismissal would result, presented the "extreme situation," Monahan v. Washburn, 400 Mass. 126, 128 (1987), that would justify the "severe sanction" of dismissal, Litton Business Tel. Sys., Inc. v. Schwartz, 13 Mass. App. Ct. 113, 114 (1982). "The considerations to be balanced in deciding [whether dismissal is appropriate] for failure to make discovery are, on one hand, a concern about giving parties their day in court, and, on the other, not so blunting the rules that they may be ignored with impunity" (quotation and citations omitted). Greenleaf, 22 Mass. App. Ct. at 429-430.
The motion judge considered that the defendants had to obtain four court orders to depose the plaintiff in connection with his own lawsuit, due to the plaintiff's "persistent and substantive" refusal to provide the defendants with information to which they were entitled under the rules of civil procedure. Maywood Bldrs. Supply Co., 22 Mass. App. Ct. at 945. The plaintiff's refusals continued, even in the face of two explicit warnings from the court that noncompliance with its orders could result in dismissal. The plaintiff had no basis for flouting the last deposition order. His refusal to be sworn on January 10, 2017, or to answer any of defense counsel's questions, "represent[s] abuse to which courts [and officers thereof] ought not to be subjected." Levings v. Forbes & Wallace, Inc., 8 Mass. App. Ct. 498, 505 (1979). In our view, the motion judge did not err when she concluded that it would be unfair to allow the plaintiff to have his day in court while at the same time ignoring with impunity prior court orders and his obligations under our rules. See Greenleaf, 22 Mass. App. Ct. at 429-430. Her decision, that the plaintiff's refusal to submit to a deposition "justified imposition of the ultimate sanction of judgment" dismissing the complaint, Roxse Homes Ltd. Partnership v. Roxse Homes, Inc., 399 Mass. 401, 404 (1987), does not fall outside the range of reasonable alternatives. Even if a lesser sanction could have been devised, "it is not our province to substitute our judgment for that of the judge." Short, 78 Mass. App. Ct. at 853.
Although not a basis for the motion judge's dismissal order, we add that defense counsel secured the attendance of a court reporter and traveled a considerable distance, all at the public's expense, on each occasion the plaintiff's deposition was convened.
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Judgment affirmed.