E. COX and C. COX, Plaintiffs and Appellants,
GLEN MAGERS, Defendant and Appellee.
Submitted on Briefs: December 13, 2017
FROM: District Court of the Eleventh Judicial District, In
and For the County of Flathead, Cause No. DV-16-247(D)
Honorable David M. Ortley, Presiding Judge
Appellants: C. Cox, E. Cox, Self-Represented, Plains, Montana
Appellee: Sean Goicoechea, Chris Di Lorenzo, Moore, Cockrell,
Goicoechea & Johnson, P.C., Kalispell, Montana
Beth Baker delivered the Opinion of the Court.
E. Cox and C. Cox filed an action against Glen Magers seeking
damages for personal injuries allegedly sustained in an
automobile collision. They now appeal the District
Court's order dismissing the action with prejudice under
M. R. Civ. P. 37(d) due to each plaintiff's failure to
fully answer interrogatories or to produce relevant documents
during discovery. We affirm.
AND FACTUAL BACKGROUND
In February 2010, Magers was driving his pickup truck in
downtown Kalispell when he struck the rear of a 1990 Ford
Escort driven by C. Cox. E. Cox sat in the front passenger
seat. Magers admitted that, at the time of the collision, he
was watching a parking enforcement officer approach the road
near his vehicle rather than the traffic in front of him.
Almost three years later, in February 2013, C. Cox and E. Cox
filed a complaint against Magers in Sanders County District
Court alleging "physical and mental damages, "
property damage, loss of income, and increases in expenses as
a result of the collision. They served the complaint on
Magers on February 1, 2016. Ten days later, Magers mailed
interrogatories and requests for production for both E. Cox
and C. Cox in one envelope to their address of record in
Plains, Montana. The next day, Magers filed his answer and a
motion to change venue to the Flathead County District Court.
He served copies to E. Cox and C. Cox via mail to the same
P.O. Box. The Sanders County District Court granted the
motion for change of venue and transferred the case to
Flathead County in early March.
At some point, C. Cox changed his address to a different P.O.
Box in Plains. E. Cox continued to use the original address
throughout the litigation. C. Cox alleges that he filed a
change of address with the Sanders County District Court, but
no change of address notice from that court is included in
the record. In his briefing to this Court, Magers states that
he received a change of address notice from C. Cox on March
16. The record shows that C. Cox filed a change of address
with the Flathead County District Court on April 4.
In early April, Magers sent another letter addressed to both
E. Cox and C. Cox, which explained that their responses to
his discovery requests were overdue and included another copy
of the discovery requests for each party. It is unclear from
the record to which P.O. Box Magers sent this letter. About a
week later, E. Cox sent Magers her handwritten responses to
his interrogatories, along with a letter informing Magers
that any mail sent to her P.O. Box was not being forwarded to
C. Cox. She did not produce any of the requested documents
but wrote, "Any appropriate documents mentioned in your
requests for production 1 through 16 which are in my
possession will be produced at the specified location within
30 days from the date of this letter."
Magers responded to E. Cox, explaining that her responses
were incomplete and only partially legible. He included
another copy of the discovery requests with more space
provided. On the same day, Magers sent a separate letter to
C. Cox requesting his belated responses. E. Cox later claimed
that she did not receive Magers's letter because it was
sent to C. Cox's address. Magers produced envelopes
showing that both letters were sent to the address used by E.
Cox. In her briefing before this Court, E. Cox changes her
position and states that she responded to this request with a
second set of answers to the interrogatories. Magers states
that he did not receive this response.
Following these letters, C. Cox filed a Request to Strike All
Filings by Defendant, arguing that Magers had "failed
and neglected to serve copies of his various filings on each
of the plaintiffs." His motion stated that a brief would
be filed within the allowable time. When C. Cox did not file
a brief, the District Court summarily ...