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recognizing the concept of proportionality in trial sanctions
Summary of this case from Gen. Steel Domestic Sales, LLC v. BachellerOpinion
No. 09SA19.
June 29, 2009.
Appeal from the District Court, City and County of Denver, Herbert L. Stein and Connie Peterson, JJ.
Kazazian Associates, LLC, Nina H. Kazazian, Denver, Colorado, Attorneys for Plaintiff.
Holland Hart LLP, Steven M. Gutierrez, Denver, Colorado, Wheeler Trigg Kennedy LLP, Carolyn Fairless, Denver, Colorado, Attorneys for Defendants.
John W. Suthers, Attorney General, Maurice G. Knaizer, Deputy Attorney General, Denver, Colorado, Attorneys for Judge Peterson.
In this C.A.R. 21 proceeding, the Colorado Supreme Court held the trial court abused its discretion in striking an answer brief as a sanction for discovery violations. The court held that striking an answer brief is tantamount to an entry of default judgment, and, in the present case, was unduly harsh and not commensurate with the harm done. The court also held that, although the trial court employed language in an order appearing to hold Baldwin and Black Decker's attorney in contempt of court, because the trial court states it was not its intent to hold the attorney in contempt, the attorney was not held in contempt of court and was therefore not denied due process.
I. Introduction
We issued a rule to show cause pursuant to C.A.R. 21 in this original proceeding to determine whether the trial court abused its discretion in striking the answer of Defendant-Petitioners Black Decker U.S., Inc. ("Black Decker") and Baldwin Hardware Corporation ("Baldwin") in this acrimonious case marked by a difficult discovery process. Because we hold that striking an answer brief is tantamount to an entry of default judgment, and is not the least severe sanction commensurate with the harm done, we hold the trial court abused its discretion in striking the answer.
We also find that, while the trial court employed language in an order appearing to hold Baldwin and Black Decker's attorney in contempt of court, because the trial court states it was not its intent to hold the attorney in contempt, the attorney was not held in contempt of court and was therefore not denied due process.
Accordingly, we make our rule absolute, reverse the trial court's order striking the answer, and remand this case to the trial court for further proceedings consistent with this opinion.
II. Facts
Plaintiff-Respondent Marcia Pinkstaff initiated the present lawsuit in 2008 to recover approximately $23,000 in wages she claims Defendant-Petitioners owe her under the terms of a bonus plan. In the complaint, Pinkstaff asserted that she was employed by Baldwin and Black Decker and, under the terms of the bonus plan, Baldwin and Black Decker improperly calculated her yearly bonus. Baldwin and Black Decker answered the complaint, admitting that Pinkstaff was an employee of Baldwin, but denying that she" was employed by Black Decker. They also denied that Pinkstaff was owed additional compensation by either Baldwin or Black Decker. They additionally asserted various affirmative defenses, including waiver, estoppel, laches, ratification, consent, acquiescence, lack of consideration, justifiable reliance, breach of contract, and failure to fulfill a necessary condition.
The parties filed amended pleadings the following month containing similar allegations and responses.
Discovery disputes commenced almost immediately after the case was at issue. Pinkstaff submitted her initial disclosures pursuant to C.R.C.P. 26(a) on April 29, 2008. Thereafter, Baldwin and Black Decker submitted initial and amended disclosures in which they listed seventeen persons with knowledge of discoverable information. Pinkstaff then submitted a motion for disputed modified case management order in which she asserted that Defendant-Petitioners refused to conduct informal discovery or allow her to interview any of the seventeen individuals with discoverable information. Accordingly, Pinkstaff asked the trial court to permit her to depose all seventeen individuals. The parties contested the number of witnesses over whom Baldwin and Black Decker had control and the number of depositions Pinkstaff could conduct.
On August 1, 2008, the trial court held a case management conference at which it denied the request for seventeen depositions, calling the request "ridiculous." At the conference, the parties discussed the legal relationship between Black Decker and Baldwin, and the trial court expressed frustration with both parties stating "I think you guys are making a mountain out of a molehill. . . . Both of you sit down. This is ridiculous. You ought to be embarrassed that you are here. This is a simple, straightforward case." The trial court ordered Baldwin and Black Decker to provide information concerning Baldwin's financial status and its relationship to Black Decker. After a lengthy debate about the individuals Pinkstaff could contact directly, the trial court requested one of Defendant-Petitioners' attorneys, Steven Gutierrez, to "comply with the letter and spirit of [his] professional responsibilities." The court also ordered Gutierrez to "produce a genuine and legitimate [C.R.C.P.] 30(b)(6) witness list."
On August 6, 2008, Pinkstaff filed a motion to compel discovery alleging continuing violations of discovery protocol. Black Decker and Baldwin responded, admitting some errors in their disclosures and again arguing that Black Decker was not a proper defendant. In an effort to resolve the discovery disputes, the court held a hearing on September 10, 2008. At the hearing, the court expressed concern about "client control," and ordered representatives of Black Decker and Baldwin to appear at "every further hearing so they can see what some of the issues are." The court also ordered corporate counsel for Black Decker to appear at the next hearing in order to assess "either what problem he's causing, or what problems local counsel — meaning both sides — are causing." In response, Gutierrez stated "To the extent you find my conduct has violated the Professional Rules, I would accept sanctions by you[] or the professional bar."
Following the hearing, the trial court issued a written order. Among other things, the order required a second deposition of a representative of Baldwin, a deposition of a representative of Black Decker, that the depositions be scheduled by September 30, 2008, that Baldwin and Black Decker produce organizational charts, that Baldwin and Black Decker produce "other non-privileged documents," and that Gutierrez and Pinkstaff's counsel, Nina Kazazian, not contact one another.
On September 16, Pinkstaff filed a motion to enforce the court's September 10 order. The motion requested sanctions against Baldwin and Black Decker pursuant to C.R.C.P. 37, specifically asking that the court enter an order striking Baldwin and Black Decker's answer and affirmative defenses, "precluding them from presenting any evidence in support of their defenses or in opposition to plaintiffs claims." Additionally, Pinkstaff requested an award of attorneys' fees and costs incurred in bringing the motion to compel and in conjunction with the yet-to-be conducted depositions.
At a hearing on September 26, 2008, representatives of Baldwin and Black Decker did not appear. However, they did appear at subsequent hearings. Depositions of representatives of Baldwin and Black Decker did not occur by the court ordered date of September 30; however, On October 14 and October 26, respectively, representatives of Baldwin and Black Decker were deposed. Several days before the depositions, Defendant-Petitioners produced organizational charts for Baldwin, The Black Decker Corporation (a non-party), and verified that Black Decker does not maintain organizational charts separate from those. produced for The Black Decker Corporation. Black Decker and Baldwin also produced a number of additional documents prior to the depositions. However, the parties dispute whether these documents constituted the "other non-privileged documents" the trial court ordered Black Decker and Baldwin to produce.
On September 19, Defendant-Petitioners filed a motion to reconsider the court's order requiring representatives of Baldwin and Black Decker to travel to Colorado for status hearings. The trial court denied the motion and, on September 29, Defendant-Petitioners filed a petition pursuant to C.A.R. 21 to this court challenging the trial court's denial of the motion to reconsider. We denied the petition.
Discovery disputes continued throughout much of October, November, and early December of 2008. On December 19, the trial court granted Pinkstaff's September 16 motion to enforce the court's September 10 order. Basing the decision on the "willful disobedience" of court orders by Defendant-Petitioners and lead counsel Gutierrez, the trial court struck Defendant-Petitioners' answer and affirmative defenses to the amended complaint and required that Baldwin, Black Decker, and Gutierrez pay Pinkstaffs attorneys' fees and costs. The order stated:
Defendants were strongly cautioned by the Court in status hearings and the Court struggled with counsel's dysfunction endemic to this case. Nevertheless, Defendants proceeded to violate the Court's Order by failing to provide the discovery responsive to Plaintiffs requests. In fact, Defendants acknowledged in repeated hearings their potential exposure to sanction and evidences a certain resignation to their likely imposition. It almost seemed to this Court that Mr. Gutierrez was daring it to take such action. He evidences a passive/aggressive behavior and a defiant attitude that this Court has never experienced.
However, the court did not point to specific discoverable items that had not been disclosed or any particular portions of the court's September 10 order which had not been complied with.
Regarding the court's decision to impose the sanction of striking the answer rather than monetary sanctions, the court stated that, as Defendant-Petitioners are "multi-million dollar companies," a lesser punishment of monetary sanctions would be "insignificant" and have no "deterrent effect."
Finally, the court stated that, as lead counsel for Defendant-Petitioners, Gutierrez is "charged with the responsibility to ensure the Defendants comply with the Court's orders and the rules of civil procedure." The court found that Gutierrez's "delay[,] . . . willful failure to comply with the September 10 order . . . and lack of cooperation with counsel . . . has effectively stopped this case in its procedural tracks." Therefore, the court stated "such flagrant violations of the Court's Order and Rules merits a finding that Defendants' counsel are also in contempt of Court."
On January 20, 2009, the trial court ruled on the remaining pending motions and denied Baldwin and Black Decker's motion to reconsider the court's January 10 order. This C.A.R. 21 petition followed. Defendant-Petitioners argue they substantially complied with the trial court's orders and attempted to provide appropriate responses to what they viewed as overbroad discovery requests in a simple contract action. They assert that the trial court's order striking their answer and affirmative defenses leaves them without any defense to Pinkstaffs claims, and the severity of this sanction is not justified in the present case. Baldwin and Black Decker also contend the district court found Gutierrez in contempt of court without affording him the due process rights to which he is entitled. Defendant-Petitioners do not contest the imposition of attorneys' fees. We issued a rule to show cause on January 22.
The trial court responded to our rule to show cause, arguing that striking Baldwin and Black Decker's answer was a proper sanction given the discovery violations that occurred. The court also asserts it did not hold Gutierrez in contempt. Rather, the court argues the language in its December 10 order stating that Gutierrez's "flagrant violations of the Court's Order and Rules merits a finding that Defendants' counsel are also in contempt of court" was merely a statement that the court believed it had grounds upon which to hold Gutierrez in contempt, although it chose not to do so.
III. Analysis A. Sanctions
C.R.C.P. 37 provides a variety of sanctions trial courts may impose on parties failing to make disclosures or cooperate in discovery. The available sanctions include orders requiring payment of attorneys' fees and costs, orders staying proceedings until discovery orders are complied with, orders prohibiting a disobedient party from introducing designated matters into evidence, orders striking pleadings, and orders entering default judgment.
Generally, sanctions under C.R.C.P. 37 "should be applied in a manner that effectuates proportionality between the sanction imposed and the culpability of the disobedient party." Kwik Way Stores, Inc. v. Caldwell, 745 P.2d 672, 677 (Colo. 1987). If Rule 37 sanctions are warranted in a case, "the trial judge must craft an appropriate sanction by considering the complete range of sanctions and weighing the sanction in light of the full record in the case." Nagy v. Dist. Court, 762 P.2d 158, 161 (Colo. 1988). When discovery abuses are alleged, courts should carefully examine whether there is any basis for the allegation and, if sanctions are warranted, impose the least severe sanction that will ensure there is full compliance with a court's discovery orders and is commensurate with the prejudice caused to the opposing party. In re People v. Lee, 18 P.3d 192, 197 (Colo. 2001).
We review a trial court's imposition of sanctions under C.R.C.P. 37 for abuse of discretion. Kwik Way, 745 P.2d at 677. A trial court abuses its discretion if its decision is manifestly arbitrary, unreasonable, or unfair. School Dist. No. 12 v. Security Life of Denver Ins. Co., 185 P.3d 781, 787 (Colo. 2008).
Although trial courts "have broad discretion in imposing sanctions for non-compliance with rules, that discretion is not without limits." Beeghly v. Mack, 20 P.3d 610, 614 (Colo. 2001); Lee, 18 P.3d at 196. If the trial court's actions in imposing sanctions "substantially tip the balance in an effort to avoid prejudice and delay and thereby unreasonably deny a party his day in court, the reviewing court must overturn the decision of the trial court." J.P. v. Dist. Court In and For 2nd Judicial Dist. of Denver, 873 P.2d 745, 751 (Colo. 1994). In addressing questions of strict enforcement of discovery rules, reviewing courts "must remember that courts `exist primarily to afford a forum to settle litigable matters between disputing parties,'" Id. at 751-52 (citing Mizar v. Jones, 157 Colo. 535, 537, 403 P.2d 767, 768 (1965)), and that, unless enforcement of procedural requirements is essential to shield substantive rights, litigation should be determined on the merits and not on formulistic application of the rules. See People v. Dickinson, 197 Colo. 338, 340, 592 P.2d 807, 808 (1979).
When a trial court strikes a party's answer, the allegations in the complaint are deemed admitted. See Lee v. Colo. Dep't of Health, 718 P.2d 221, 225 n. 4 (Colo. 1986). Thus, the order striking Baldwin and Black Decker's answer and affirmative defenses precludes Defendant-Petitioners from contesting any of the substantive issues alleged in the complaint. Baldwin and Black Decker will be unable to contest the issues of liability, willful non-payment of wages, and Black Decker's status as an alleged joint employer. Additionally, Baldwin and Black Decker will be unable to advance any affirmative defenses. These consequences are tantamount to an entry of default judgment.
Defendant-Petitioners argue that, because "Ms. Pinkstaff has provided no authority suggesting that" Black Decker employed Ms. Pinkstaff, "it is questionable whether any judgment against Black Decker can stand, even if entered by default." However, this is an issue of fact not before this court, and we therefore decline to discuss Black Decker's potential liability in this matter.
A trial court's entry of default judgment constitutes an admission by the defendant of the material allegations contained in the complaint, and the only remaining issue to be determined is the amount of damages. Once the trial court has determined the amount of damages, judgment is entered which, "as a general rule, has the same effect as final judgment after a formal trial." State Farm Mut. Auto. Ins. Co. v. Brekke, 105 P.3d 177, 185 (Colo. 2004).
Pinkstaff and the trial court argue that striking the answer is a "moderate" sanction not equal to default because Baldwin and Black Decker may still contest the issue of damages. However, notwithstanding entry of default judgment, the issue of damages may be contested. Kwik Way Stores, 745 P.2d at 678 ("When a trial court determines that entry of default judgment is the appropriate sanction, the default establishes liability, . . . but does not fix the amount of damages."). Had the trial court entered default judgment in favor of Pinkstaff, Defendant-Petitioners would be in the same position regarding their ability to litigate the case as they are in today — that is, the only issue they may contest is the amount of damages.
Accordingly, even though the trial court imposed the sanction of striking the answer instead of entry of default judgment, it had the same effect. Therefore, because we hold that a trial court order striking an answer is tantamount to an entry of default judgment, we must determine whether default was a proper sanction under the circumstances of the present case.
The "harshest of all sanctions is dismissal or entry of a default judgment, which should be imposed only in extreme circumstances." Nagy, 762 P.2d at 161, see also Cornelius v. River Ridge Ranch Landowners Ass'n, 202 P.3d 564, 571 (Colo. 2009) (dismissal for discovery violations is a drastic remedy, only to be applied in extreme circumstances). In Cornelius, we stated that sanctions should serve to facilitate discovery and cure discovery problems; however, when faced with extensive nondisclosure and a wholesale failure to prosecute trial court does not abuse its discretion in dismissing the action. Id. (water court does not abuse its discretion in dismissing with prejudice applicant's pro se application for adjudication of water rights due to applicant's complete failure to comply with C.R.C.P. 26, respond to requests for information, or adequately supplement his initial applications).
Here, discovery violations occurred and the imposition of sanctions was warranted. However, we find that the sanction imposed by the trial court was not commensurate with the culpability of Baldwin and Black Decker.
While the trial court found that Defendant-Petitioners' actions amounted to an effective "failure to meaningfully participate in discovery," we hold that, while Defendant-Petitioners failed to comply with discovery requirements and trial court orders, the record does not support the conclusion that their behavior amounted to an abdication of their duties under the Colorado Rules of Civil Procedure justifying default judgment. C.f. id. (dismissal proper remedy when there has been "wholesale failure to comply with disclosure requirements for over one year").
Here, Baldwin and Black Decker made some required C.R.C.P. 26 disclosures and requested that the trial court provide guidance as to what additional information must be disclosed. Neither the trial court nor Pinkstaff provided this guidance. Baldwin and Black Decker eventually provided all of the specific documents the trial court ordered disclosed, and all of the court ordered depositions occurred, although representatives of Baldwin and Black Decker were not deposed until after the court ordered deadline of September 30.
The trial court's September 10 order required Baldwin and Black Decker to produce the organizational charts at least four days before the depositions. Pinkstaff initially noticed the depositions for September 18. However, the depositions were rescheduled for October 14 and 28. Pinkstaff argues that, because the first deposition was initially noticed on September 14, the documents were due by September 12. However, Baldwin and Black Decker produced the charts on October 7, 9, 13, and 14 — more than four days before the depositions occurred.
Although Defendant-Petitioners committed some discovery violations and attempted to stonewall many of Pinkstaff's requests, striking the answer was an unwarranted sanction in the present case. C.R.C.P. 37 endorses a number of sanctions, ranging from monetary sanctions and orders prohibiting a disobedient party from entering certain documents or items into evidence, to orders deeming non-disclosed information admitted. Here, the court had a variety of sanctions available which are less drastic than striking the answer. However, the first sanction the court turned to, other than instructing the parties regarding professionalism and proper discovery practices, was the drastic sanction of striking the answer.
Had the trial court made specific findings regarding what Defendant-Petitioners failed to disclose or how they had otherwise failed to comply with its orders, the court may have been better postured to craft sanctions tailored to the exact violation or to achieve disclosure. However, despite the range of sanctions available, the trial court did not adequately address why less drastic measures, such as sanctions barring the admission of certain evidence or monetary sanctions, would have been inappropriate in the present case.
Regarding monetary sanctions, the trial court dismissed the idea, concluding that such sanctions would have no deterrent effect because Baldwin and Black Decker are "multi-million dollar companies." However, because the trial court had not tried sanctioning Defendant-Petitioners monetarily, its conclusion that such sanctions would be ineffective was speculative. The simple fact that a party to a lawsuit has what a court estimates to be great financial resources does not necessarily imply that monetary sanctions will have no deterrent effect.
Accordingly, while we acknowledge that discovery violations occurred, the sanction of striking the answer effectively denies Baldwin and Black Decker the opportunity to litigate the merits of the dispute. The violations alleged here go beyond mere violation of "technical rules"; cf. Dickinson, 197 Colo. at 340, 592 P.2d at 808, however, denying Defendant-Petitioners their day in court is not the "least severe sanction" commensurate with either the prejudice caused to Plaintiff-Respondent or the culpability of Defendant-Petitioners. See Lee, 18 P.3d at 197. We therefore hold that the trial court abused its discretion in striking the answer.
Finally, while we acknowledge that it is contested whether Baldwin and Black Decker themselves are to blame for some of the violations, we note that the sanction imposed by the trial court to some extent punishes the parties for the attorneys' misconduct. The trial court based its order striking the answer, in part, on counsel for Defendant-Petitioners' lack of cooperation in scheduling depositions, failure to contact fact witnesses to obtain available dates for depositions, late disclosure of large amounts of discoverable information, "passive aggressive" demeanor, advancement of "disingenuous and intellectually dishonest" arguments, and employment of "abusive and unprofessional" discovery tactics. In imposing the sanction of striking Baldwin and Black Decker's answer, the trial court denied Baldwin and Black Decker their day in court based on misconduct perpetrated by their attorney. When imposing sanctions for discovery violations, trial courts must endeavor to impose sanctions that are commensurate with the harm done while not unduly punishing parties for their attorney's misconduct.
B. Contempt
The trial court's December 19, 2008 order states the "flagrant violations of the Court's Order and Rules" committed by Gutierrez "merits a finding that Defendants' counsel [is] also in contempt of Court." Baldwin and Black Decker believe that, by including this language in the order, the trial court held Gutierrez in contempt of court pursuant to C.R.C.P. 107. They argue this holding violated Gutierrez's due process rights because he was not afforded adequate procedural safeguards. In its response to our rule to show cause, the trial court states that it did not hold Gutierrez in contempt of court; rather, the language relating to contempt in the December 19 order merely stated that contempt, while not imposed, was warranted.
Although there is record support for the position that the trial court held Gutierrez in contempt, we take the trial court at its word that it did not find Gutierrez in contempt of court. The trial court's assertion that it did not find Gutierrez in contempt is also supported by the lack of procedural safeguards provided by the trial court to Gutierrez. Under C.R.C.P. 107(c), when contempt occurs outside the presence of the court (indirect contempt), the court must conduct contempt proceedings allowing the charged party a hearing, the opportunity to be represented by counsel, and the right to call and confront witnesses. See Losavio v. Dist. Court, 182 Colo. 180, 185, 512 P.2d 266, 268 (1973). The trial court held no such hearing, and did not impose any sanctions on Gutierrez for the "contempt."
While the contempt language employed by the trial court may be read to hold Gutierrez in contempt, we find that Gutierrez was not held in contempt of court because the trial court states it was not its intent to hold Gutierrez in contempt, it did not conduct contempt proceedings, and no sanctions were imposed. Therefore, we do not reach Defendant-Petitioner's due process claims.
IV. Conclusion
Accordingly, we make our rule absolute, reverse the trial court's order striking the answer, and remand this case to the trial court for further proceedings consistent with this opinion.
Chief Justice MULLARKEY dissents, and Justice BENDER joins in the dissent.
Justice HOBBS does not participate.