November 26, 2013
DONNA MILLER, Plaintiff and Appellee,
DONALD MILLER, Defendant and Appellant.
Appellee Donna Miller (Donna) has moved to dismiss this appeal on the grounds that Appellant Donald Miller (Donald) failed to participate in mediation as required in M. R. App. P. 7. Donna further contends that she has not received a copy of the brief that Donald filed on October 18, 2013. Donald has filed an objection to dismissal of the appeal. Donald disputes that he refused to participate in mediation. He claims instead that he could not afford to pay the mediator's required retainer. Both parties are self-represented here.
No report from the mediator has been filed in the case docket. Donna attached to her motion, however, a copy of a document directed to the State Bar of Montana, Appellate ADR Project. The attachment indicates that Donald refused to pay the mediation retainer fee and refuses to mediate the case. The attachment does not bear the mediator's signature.
Donald filed an appellate brief before the District Court record was filed on October 18, 2013. He was notified the brief failed to comply with Court Rules in several particulars, and he filed a compliant brief on September 4, 2013.
We acknowledge that M. R. App. P. 7(9) provides: "Substantial noncompliance with this rule may, on motion of a party or by the supreme court sua sponte, result in the assessment of mediator fees, imposition of monetary sanctions, costs, dismissal of the appeal, or such other sanction as the supreme court deems appropriate." This provision does not obligate this Court to dismiss an appeal. Nothing in the record indicates that Donald acted in bad faith.
IT IS ORDERED that the motion to dismiss this appeal is DENIED.
On October 18, 2013, the Clerk of Court provided Donna notice that her response brief was due on or before November 18, 2013. Donna has not yet filed her brief. We afford Donna some latitude in light of her self-represented status and direct her to file a response brief on or before December 31, 2013. The brief must conform substantially in form and substance with the Montana Rules of Appellate Procedure.
The Clerk is directed to provide a copy hereof to the parties hereto, personally.