ORDER GRANTING SANCTIONS AND COMPELLING
petitioner, Ronald Gene Cole (claimant), was involved in an
automobile accident on November 11, 1991. In his petition he
alleges that he was injured in the course and scope of his
employment. Because the employer was uninsured at the time of
the accident, claimant has joined both the employer,
Stratford Farms, Inc., R. L. Stratford and John Stratford
(Stratford), and the Uninsured Employer's Fund (UEF).
Both Stratford and UEF deny that claimant was acting within
the scope and course of his employment when injured;
therefore, they deny liability.
has served written discovery and attempted to take the
claimant's deposition. Claimant has failed to respond to
the written discovery or to make himself available for
deposition. Counsel for Stratford made numerous requests that
claimant find a time convenient for his deposition. Finally,
Stratford noticed the deposition for March 17, 1994; claimant
did not appear and his own attorney was unable to ascertain
his whereabouts. Stratford now moves for sanctions, asking
that the petition be dismissed with prejudice. Should the
Court find dismissal too harsh, Stratford asks the Court to
enter an order compelling discovery and directing claimant to
pay Stratford's costs and attorney fees.
history recited by Stratford shows that claimant has
disappeared on numerous occasions and does not keep his own
counsel informed as to his whereabouts. In response to
Stratford's motion, claimant's attorney states,
"Mr. Cole has again disappeared and has not contacted
counsel since about mid-February." Claimant's
counsel, however, states that claimant has previously been
treated for depression at the Miles City Veteran's
Hospital and speculates that he again may be suffering from
depression. He requests that the Court fix a date certain for
claimant to appear for his deposition and states, "If
Mr. Cole does not appear for his deposition by that time, it
is in the court's discretion as to what sanctions would
be appropriate, including dismissal."
filed this petition. In doing so he subjected himself to
discovery obligations imposed by the rules of this Court. ARM
24.5.326 provides the consequences of a failure to respond to
FAILURE TO MAKE DISCOVERY -
SANCTIONS (1) If a party fails to respond to
discovery pursuant to these rules, or makes evasive or
incomplete responses to discovery, or objects to discovery,
the party seeking discovery may move for an order compelling
responses. Upon filing such motion, the moving party shall
also file a supporting brief or affidavit and failure to do
so shall be deemed an admission that the motion is without
merit. An adverse party shall have ten days following service
of the motion within which to file an answering brief or
affidavit. A reply brief may be filed no later than five days
from the date of service of the answer of the adverse party.
Unless ordered by the court, oral argument will not be
permitted in motions to compel discovery. With respect to a
motion to compel discovery, the court may impose such
sanctions as it deems appropriate, including, but not limited
to, awarding the prevailing party attorney fees and
reasonable expenses incurred in obtaining the order or in
opposing the motion. If the party shall fail to make
discovery following issuance of an order compelling
responses, the court may order such sanctions as it deems
required and just under the circumstances.
the rule, Stratford is entitled to an order compelling
discovery. In light of claimant's history of
non-cooperation and his failure to keep his own counsel
informed of his whereabouts, Stratford should also be awarded
its fees and costs in connection with its motion to compel.
Finally, since it is claimant who has delayed this matter,
the trial setting will be vacated.
on the foregoing discussion, IT IS HEREBY ORDERED AS FOLLOWS:
Claimant is ordered to serve complete responses to
Stratford's written discovery requests on or before June
Claimant is further ordered to make himself available for
deposition no later than June 15, 1994. Claimant and his
counsel are responsible for notifying opposing counsel of
available dates for the deposition.
Claimant is ordered to pay Stratford its reasonable costs and
fees in an amount to be determined by the Court.
Stratford shall have until April 22, 1994, in which to submit
an affidavit setting forth an itemization of fees and costs
incurred in connection with its motion to compel. If claimant
objects to the reasonableness of the fees and costs
submitted, he shall have until May 4, 1994, in which to file
his objections. The Court will then fix the amount due
trial setting in this matter, which is for the week of May 2,
1994, is vacated. The trial will not be
reset until claimant complies with all orders of this Court.
claimant is admonished that his failure to
comply with this Order and with the rules of this
Court may lead to ...