Opinion
No. X04 CV-03-4034739 S
March 19, 2008
MEMORANDUM OF DECISION ON REQUEST FOR ENTRY OF DISMISSAL PURSUANT TO PRACTICE BOOK SECTION 13-14 (#203)
After consideration, the court issues this memorandum of decision concerning the defendants Webster Insurance, Inc. and Louis Levine Agency, Inc.'s (the movants) request for the entry of dismissal pursuant to Practice Book § 13-14. The plaintiff, Silk, LLC d/b/a Silk Stockings, filed an objection (#207). Oral argument was not requested.
Defendant Cowles Connell of Connecticut Inc. a/k/a Cowles Connell Inc. (Cowles Connell) also filed a request for entry of dismissal, joining in and adopting the argument asserted by the movants. See #205.
This and related matters concern claims arising from a motor vehicle accident. In its November 20, 2007 ruling (#193), the court ordered that the plaintiff produce Robert Giordano and Norman Costello, for depositions to occur in Connecticut, by January 31, 2008.
Practice Book § 13-14(a) provides, in relevant part, "If any party has failed to . . . appear and testify at a deposition duly noticed pursuant to this chapter, or has failed otherwise substantially to comply with any other discovery order made pursuant to Sections 13-6 through 13-11, the judicial authority may, on motion, make such order as the ends of justice require." Such order may include the entry of a judgment of dismissal against a plaintiff which has failed to comply and the entry of an order prohibiting the party who has failed to comply from introducing designated matters in evidence. See Practice Book § 13-14(b)(5) and (4).
"[A] court may, either under its inherent power to impose sanctions in order to compel observance of its rules and orders, or under the provisions of § 13-14, impose sanctions, including the sanction of dismissal." Millbrook Owners Association, Inc. v. Hamilton Standard, 257 Conn. 1, 14, 776 A.2d 1115 (2001). "The decision to enter sanctions . . . and, if so, what sanction or sanctions to impose, is a matter within the sound discretion of the trial court." (Internal quotation marks omitted.) Evans v. General Motors Corp., 277 Conn. 496, CT Page 4630 523, 893 A.2d 371 (2006).
"[T]he court's discretion should be exercised mindful of the policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court . . . The design of the rules of practice is both to facilitate business and to advance justice; they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice . . . Rules are a means to justice, and not an end in themselves . . . Our practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure . . . Therefore, although dismissal of an action is not an abuse of discretion where a party shows a deliberate, contumacious or unwarranted disregard for the court's authority; Fox v. First Bank, 198 Conn. 34, 39, 501 A.2d 747 (1985); see also Pavlinko v. Yale-New Haven Hospital, [ 192 Conn. 138, 145, 470 A.2d 246 (1984)] (dismissal proper where party's disobedience intentional, sufficient need for information sought is shown, and disobedient party not inclined to change position); the court should be reluctant to employ the sanction of dismissal except as a last resort . . . [T]he sanction of dismissal should be imposed only as a last resort, and where it would be the only reasonable remedy available to vindicate the legitimate interests of the other party and the court." (Citations omitted; internal quotation marks omitted.) Millbrook Owners Association, Inc. v. Hamilton Standard, supra, 257 Conn. 16-17.
"In order for a trial court's order of sanctions for violation of a discovery order to withstand scrutiny, three requirements must be met. First, the order to be complied with must be reasonably clear . . . Second, the record must establish that the order was in fact violated . . . Third, the sanction imposed must be proportional to the violation." (Internal quotation marks omitted.) Wexler v. DeMaio, 280 Conn. 168, 179, 905 A.2d 1196 (2006).
In considering the factors set forth in Wexler v. DeMaio, supra, the court finds that the court's November 20, 2007 ruling is clear. As to the second factor, whether the order was in fact violated, it is evident that a violation has occurred. The plaintiff previously represented to the court that Costello understood "the importance and the requirement of coming to Connecticut for [his] deposition" and that he was willing to do so. See plaintiff's objection to motion pursuant to Practice Book § 13-14, dated October 15, 2007 (#189), page 4. Under these circumstances, the court need not consider the plaintiff's argument that, under Practice Book § 13-26, since Costello dropped out of Silk, LLC, he cannot be compelled to be deposed by notice of deposition. Costello did not appear to be deposed by January 31, 2008, the deadline set by the court in its November 20, 2007 ruling.
As to Giordano, the movants concede that he traveled to Connecticut from Tennessee and was deposed in Connecticut on January 24 and 25, 2008, but argue that his deposition was not completed. According to the movants, he left for Tennessee on January 25, 2008, at approximately 3:30 p.m. See movants' objection, dated February 1, 2008 (#202), page 2.
In response, the plaintiff asserts the following at pages 3-4 of its objection. Giordano's deposition, which was begun in February 2006, now spans 738 pages. The plaintiff notes that counsel for the movants began his examination of Giordano on January 24, 2008 at page 250 and concluded his examination at page 410; that Cowles Connell's counsel asked three pages of questions; and that MarNelReed Corporation's counsel asked 37 pages of questions. Counsel for the Estate of William Ridgaway began his cross-examination at page 450 at 2:43 p.m. on January 24, 2008, and concluded it on the following day. Counsel for the rnovants began his redirect at page 676.
The movants provided no deposition transcript excerpts to explain why the deposition was not concluded. Based on the parties' presentations concerning the movants' request for the entry of dismissal, it is unclear why counsel were unable to complete Giordano's deposition on January 24-25, 2008. The court is unpersuaded that the fact that Giordano's deposition was not concluded amounts to a violation by the plaintiff of the court's previous order.
Third, in considering what sanction is warranted, the court is mindful that the Supreme Court has stated that a nonsuit or dismissal is to be ordered as a sanction only as a last resort, and where it would be the only reasonable remedy available to vindicate the legitimate interests of the other party and the court. See Millbrook Owners Association, Inc. v. Hamilton Standard, supra, 257 Conn. 16-17.
The movants' presentation has not shown how they are prejudiced in preparing their defenses by not having completed Giordaro's deposition, even though it has now reached 738 pages in length and even though, apparently, they conducted a complete original examination of him, but not a complete redirect. They do not explain how they have been prejudiced by not having taken Costello's deposition. Instead, they offer only the conclusory assertion that, since there are no other members of the plaintiff limited liability company, they are severely prejudiced by the inability to depose the plaintiff's principals on the nature of their communications in procuring insurance coverage for Silk, LLC.
The plaintiff suggests that, in the event that the plaintiff cannot produce Costello to be deposed, the appropriate sanction would be to bar his testimony at trial. See plaintiff's objection, page 6. In contrast to dismissal, the sanction of the preclusion of evidence at trial is proportional to the violation. It would be unfair to the defendants for the plaintiff to have the benefit of having Costello testify at trial after the defendants were unable to depose him. Accordingly, the plaintiff is precluded from calling Costello as a trial witness.
In the exercise of its discretion, the court concludes that dismissal is not warranted. For the foregoing reasons, the requests for the entry of dismissal are denied.
It is so ordered.