Alabama Court of Civil Appeals Discusses Standard of Review Applicable to Order Dismissing Action for Failure to Comply with Discovery Rules

In Myers v. Harris, released September 25, 2009 by the Alabama Court of Civil Appeals, the court discussed the standard of review applicable to an order dismissing an action due to the plaintiff’s failure to comply with the rules governing discovery.      

Myers sued Jeffrey Harris and Progressive Insurance Company, alleging negligence in connection with an automobile accident that Myers and Harris were involved in.  Along with the complaint, Myers served Harris and Progressive with interrogatories.  Soon thereafter, Progressive answered and served Myers with discovery.  After more than a month passed with no response from Myers, Progressive wrote to Myers asking for a response within 14 days.  Failing to receive a response to the letter or a response to the discovery requests, Progressive filed a Rule 37 motion to compel. Myers filed nothing in opposition to that motion, which the trial court granted, ordering Myers to respond to Progressive’s interrogatories and requests for production within 10 days. 

Myers failed to obey the trial court’s order.  Progressive filed a motion to dismiss Myer’s complaint.  Myers failed to respond to the motion or to appear at the hearing on it.  Finally, the trial court dismissed the complaint for Myers’s failure to appear and prosecute his action.  That same day, Myers filed a Rule 59(e) motion, asserting that he failed to appear at the hearing because "for some reason the date did not get scheduled on his calendar" and that he had not engaged in willful, intentional, or contumacious conduct, only negligent conduct.  He further argued that even if the dismissal as to Progressive was proper, his claims as against Harris should not have been dismissed because only Progressive had moved to compel discovery.  The trial court rejected Myers’s arguments regarding dismissal of his claims against Progressive.  It agreed with his contension, however, that the trial court erred in dismissing his claims against Harris.  

The court began by noting the standard of review applicable to a dismissal under Rule 37 for failure to comply with discovery rules:

The choice of discovery sanctions is within the trial court’s discretion and will not be disturbed on appeal absent gross abuse of discretion, and then only upon a showing that such abuse of discretion resulted in substantial harm to appellant.  We recognize that the sanction of dismissal is the most severe sanction that a court may apply.  Judicial discretion must be carefully exercised to assure that the situation warrants the imposition of such a sanction.  Dismissal orders must be carefully scrutinized, and the plaintiff’s conduct must mandate dismissal.  We have held that "willfulness" on the part of the noncomplying party is a key factor supporting a dismissal.  If one party has acted with willful and deliberate disregard of reasonable and necessary requests for the efficient administration of justice, the application of even so stringent a sanction as dismissal is fully justified and should not be disturbed.

On appeal, Myers argued that his conduct was merely negligent and not willful.   The court disagreed, pointing out Myers’s failure to respond to Progressive’s discovery requests, his failure to obey a court order directing him to provide discovery responses within 10 days, and his failure to appear at a hearing concerning sanctions for his disobedience to the court.  The court further noted that "it does not require considerable sophistication to understand that the trial court’s order to respond was not merely aspirational."

Regarding Myers’s second argument, however, the court agreed that his complaint against Harris should not have been dismissed.  Noting that the issue was one of first impression in Alabama, the court reviewed out-of-state authority and relied on a number of factors in determining that the trial court exceeded its discretion in dismissing Myers’s complaint against Harris.  First, Harris himself had not complied with discovery requests which Myers propounded to him, nor had he done nothing to ensure that Myers answered his discovery obligations to Harris.  For this reason, Harris–who was seemingly unconcerned with moving the litigation forward–would have received an "undeserved windfall" when the trial court dismissed Myers’s complaint.  

Second, dismissing the complaint against Harris would serve no goal of satisfying the need for effective relief to the discovering and moving party, a factor important to courts in other states.  Third, although the dismissal caused substantial harm to Myers, Harris’s own conduct during the litigation did not indicate that he was prejudiced by Myers’s failure to provide discovery.  As a result, the sanction of dismissal as against Harris was not proportional to the discovery abuse committed and the trial court’s order was reversed.