Opinion
No. 345547
11-26-2019
VIVIAN PEARSON, Plaintiff-Appellant, v. MORLEY COMPANIES INCORPORATED, doing business as MORLEY COMPANIES INC., Defendant-Appellee.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Saginaw Circuit Court
LC No. 17-035031-CD Before: TUKEL, P.J., and SAWYER and RIORDAN, JJ. PER CURIAM.
Plaintiff, Vivian Pearson, appeals as of right the trial court's September 18, 2018 order dismissing with prejudice her hostile work environment lawsuit against defendant-employer, Morley Companies, Inc., as a sanction for plaintiff's failure to comply with discovery and scheduling orders. For the reasons discussed below, we affirm.
I. STATEMENT OF FACTS
On December 6, 2017, plaintiff filed this action against defendant, her former employer. In her one-count complaint, plaintiff alleged that she experienced unwelcome sexual communication and conduct by her supervisor during her employment with defendant and that defendant knew or should have known of the sexually hostile work environment. Defendant filed its answer on March 5, 2018.
On June 18, 2018, defendant filed a motion to compel discovery. Defendant alleged that plaintiff had been uncooperative and that although plaintiff's response to its first request for interrogatories was due by March 28, 2018, no response had yet been filed. Subsequently, in a July 5, 2018 reply brief to plaintiff's response to defendant's motion to compel discovery, defendant stated that plaintiff had in the interim served responses to its first request for interrogatories; however, plaintiff had failed to respond to defendant's document production requests and its first discovery request. Defendant cited several issues with plaintiff's interrogatory responses, including improper objections and incomplete responses to the questions. On July 17, 2018, the trial court issued an order granting defendant's motion to compel. The court ordered plaintiff to serve responses to defendant's interrogatories, request for production of documents, and request for admissions by July 31, 2018; additionally, the court specifically ordered plaintiff to produce her Facebook history as requested, subject to a protective order. The trial court also ordered that plaintiff's deposition occur by August 31, 2018, and that facilitation would take place on September 6, 2018.
Defendant filed a motion to dismiss on August 13, 2018, alleging that plaintiff had failed to comply with the court's order. At the hearing on the motion, defendant stated that it had sought discovery from plaintiff since February 2018 and that none of the required responses or documents were received by July 31 pursuant to the court order. Defendant further noted that plaintiff did not provide defendant with any additional discovery by the time of the facilitation and that plaintiff was ill-prepared for the facilitation, which had to be adjourned because plaintiff's counsel "didn't know much about the facts of the case" and requested one million dollars to settle but was unable to articulate the basis for the requested damages. Defendant argued that this behavior warranted dismissal.
Plaintiff argued that dismissal was an inappropriate sanction. Plaintiff's counsel admitted that some discovery had not been provided, which was attributable to the turnover of attorneys within counsel's firm. Plaintiff's counsel stated that she believed discovery had been completed when she received the case and requested an opportunity to cure the deficiencies. The trial court granted defendant's request for dismissal with prejudice.
II. ANALYSIS
Plaintiff argues that the trial court abused its discretion by dismissing the case. We disagree.
"A trial court's decision to dismiss an action is reviewed for an abuse of discretion." Donkers v Kovach, 277 Mich App 366, 368; 745 NW2d 154 (2007). A trial court abuses its exercise of discretion when its decision is outside the range of reasonable and principled outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006).
"[T]rial courts possess the inherent authority to sanction litigants and their counsel, including the power to dismiss an action." Id. at 389. The court rules also explicitly confer this authority. Id. at 391. MCR 2.504(B)(1) provides that, upon motion by an opposing party (or sua sponte), a trial court may dismiss a case or enter a default if a party fails to comply with the Michigan Court Rules or a court order. However, "[b]efore imposing dismissal as a sanction, the trial court must carefully evaluate all available options on the record and conclude that dismissal is just and proper." VandenBerg v VandenBerg, 231 Mich App 497, 502; 586 NW2d 570 (1998). See also Vicencio v Ramirez, 211 Mich App 501, 506; 536 NW2d 280 (1995). To determine whether dismissal is a just and proper result, relevant factors the trial court should consider include, but are not limited to
(1) whether the violation was wilful or accidental; (2) the party's history of refusing to comply with previous court orders; (3) the prejudice to the opposing party; (4) whether there exists a history of deliberate delay; (5) the degree of compliance with other parts of the court's orders; (6) attempts to cure the defect;
and (7) whether a lesser sanction would better serve the interests of justice. [Vicencio, 211 Mich App at 507.]
"The record should reflect that the trial court gave careful consideration to the factors involved and considered all its options in determining what sanction was just and proper in the context of the case before it." Kalamazoo Oil Co v Boerman, 242 Mich App 75, 86; 618 NW2d 66 (2000) (quotation marks and citation omitted).
The trial court did not abuse its discretion by granting defendant's motion to dismiss this case. The trial court gave careful consideration to the Vicencio factors in reaching its decision to dismiss. The trial court noted plaintiff's lengthy history of refusing to comply with court orders and counsel's failure to adequately prepare for facilitation and lack of attention to the case. The trial court also addressed the prejudice to the opposing party, noting that plaintiff's failure to provide discovery caused defendant to adjourn plaintiff's deposition. Finally, the court considered whether a lesser sanction would have been more appropriate. The court opined that this was an "extreme case[]" of party noncompliance and concluded that merely imposing costs would be unsatisfactory in light of plaintiff's pattern of lack of participation, discovery, and cooperation. The trial court considered lesser sanctions and reasonably concluded that dismissal better served the interests of justice because, given her history of noncompliance, plaintiff had demonstrated that she was unlikely to comply with the Michigan Court Rules and the trial court's orders in the future. We conclude that the trial court's decision was within the range of reasonable and principled outcomes.
Affirmed. Having prevailed in full, defendant is entitled to tax costs under MCR 7.219(F).
/s/ Jonathan Tukel
/s/ David H. Sawyer
/s/ Michael J. Riordan