Opinion
No. 16–P–189.
01-09-2017
Steven SURABIAN v. Pauline BILLINGS & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals from the dismissal of his complaint for his failure to comply with a contempt judgment entered in this action after his repeated failure to comply with discovery orders. The plaintiff raises a variety of claims, but the only issue properly before this panel is the propriety of the judge's dismissal of the case. We affirm.
The plaintiff failed to comply with discovery requests, including appearing for his deposition, resulting in a December 15, 2014, order compelling him to produce documents and to attend his deposition. The plaintiff sought relief from a single justice of this court (docket number 15–J–17), which was denied. The plaintiff failed to comply, and the defendants filed their first complaint for contempt, resulting in another order that he comply. The plaintiff again sought review by a single justice, and his petition was again denied (docket number 15–J–113). The plaintiff again failed to comply and the defendants filed a second complaint for contempt. After a hearing, a judgment entered on May 18, 2015, finding the plaintiff in contempt and, in addition to requiring him to comply with discovery, ordering him to pay $1,500 in attorney's fees to the defendants, failing which the plaintiff's complaint would be dismissed. The plaintiff sought relief from a single justice of the Supreme Judicial Court and, when that relief was denied, finally complied with the discovery orders on May 22, 2015. He did not, however, pay the $1,500 ordered by the Superior Court judge, nor did he appeal from the May 18, 2015, contempt judgment, although he sought a stay from a single justice of the Supreme Judicial Court. By this time, the defendants had filed a third complaint for contempt for his failure to pay the fees ordered. The trial court judge took the matter under advisement pending resolution of the Supreme Judicial Court single justice matter. When that petition was denied, the trial court judge ordered judgment be entered, dismissing the plaintiff's complaint.
A judge has the authority to dismiss an action as a sanction for noncompliance with discovery orders. See Mass.R.Civ.P. 37(b)(2), as amended, 390 Mass. 1208 (1984). In addition, Mass.R.Civ.P. 37(d), 365 Mass. 797 (1974), provides that when a party wilfully fails to appear for a properly noticed deposition, fails to answer interrogatories, or fails to serve a written response to a request for documents, a judge on motion "may make such orders in regard to the failure as are just." This may include, pursuant to rule 37(b)(2)(C), an order dismissing the action or any part thereof, or entering default judgment against the disobedient party. Rule 37(d) also provides that in lieu of, or in addition to, any order, "the court may require the party failing to act or the attorney advising him or both to pay the reasonable expenses, including attorney's fees, caused by the failure." Ibid. We review such an order for abuse of discretion. Clamp–All Corp. v. Foresta, 53 Mass.App.Ct. 795, 805 (2002).
On appeal, the plaintiff primarily focuses on his claim that he was under no obligation to comply with discovery orders because the defendants filed their answer late and should have been defaulted, that the motion to compel discovery was filed beyond the discovery deadline, and that the judge erred in ordering that his deposition be taken more than one hundred miles away. It is not clear that these claims were presented below, but in any event they lack merit.
The timing of the filing of the answer was caused by the initial filing of a motion to dismiss, which was allowed. After the allowance largely was overturned on appeal, the defendants filed their answer and moved to extend the discovery deadline, which was allowed to November 30, 2014.
The defendants elected to file a motion to dismiss rather than an answer, and immediately filed their answer after the dismissal was partially overturned on appeal. Accordingly, the answer was not late and default was not warranted. Although the first motion to compel was filed a few days after the discovery deadline had passed, there is no indication in the record that the discovery requests were served after the deadline. In any event, the allowance of the motion to compel is an implicit extension of that deadline, which was well within the judge's discretion.
The answer was filed immediately following a different panel's decision in docket number 12–P–1287, even before our rescript had entered in the trial court. See Surabian v. Billings, 84 Mass.App.Ct. 1108 (2013).
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In addition, it was within the judge's discretion to require the plaintiff to attend the deposition at the office of the defendants' counsel and, other than the plaintiff's assertion in his brief, there is nothing in the record provided to us that indicates he was unable to travel to that location. In the end, given the history of the case, and the conduct of the plaintiff, we discern no abuse of discretion in the judge's order to dismiss the case. See Greenleaf v. Massachusetts Bay Transp. Authy., 22 Mass.App.Ct. 426, 429 (1986). See also Mass.R.Civ.P. 41(b)(2), 365 Mass. 803 (1974).
Judgment affirmed.