Dismissal as a Sanction

Dismissal of a case is a harsh sanction for a case.  It is provided for by the Rules and the caselaw.  Rule 37(b)(2)(C) states, in pertinent part: If a party . . . fails to obey an order to provide or permit discovery, including an order made under subsection (a) of this rule, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:

". . . . an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party[.]" (Emphasis added).

The Mississippi Supreme Court has established the following factors for evaluating the appropriateness of dismissal as a sanction for discovery violations.  First, dismissal is authorized only when the failure to comply with the court's order results from wilfulness or bad faith, and not from the inability to comply. Dismissal is proper only in situation[s] where the deterrent value of Rule 37 cannot be substantially achieved by the use of less drastic sanctions. Another consideration is whether the other party's preparation for trial was substantially prejudiced. Finally, dismissal may be inappropriate when neglect is plainly attributable to an attorney rather than a blameless client, or when a party's simple negligence is grounded in confusion or sincere misunderstanding of the court's orders.  Pierce, 688 So.2d at 1389; see M.R.C.P. 37(b)(2)(C). The Pierce court explained that these factors are considerations and not four absolute requirements. Pierce, 688 So.2d at 1389. The supreme court has further held that willfulness or bad faith may be so clearly evidenced that the four Pierce factors will be irrelevant to the upholding of dismissal. White v. White, 509 So.2d 205, 207 (Miss. 1987).  Additionally, "[a] finding of willfulness may be based upon either a willful, intentional, and bad faith attempt to conceal evidence or a gross indifference to discovery obligations." Pierce, 688 So.2d at 1390.   Rule 37(e) provides for additional sanctions where a party abuses the discovery process in seeking or resisting discovery.   If a party is untruthful as to her discovery, Rule 37(e) also supports a trial court's dismissal. See also William Pyle, Luther Ott & Clark Rumfelt, Mississippi Rules of Discovery, 46 Miss. L.J. 681, 764-83 (1975).

However,"[d]ismissal with prejudice is a sanction that should be imposed only in those rare instances where the conduct of a party is so egregious that no other sanction will meet the demands of justice." Scoggins v. Ellzey Beverages, Inc., 743 So.2d 990, 997 (¶36) (Miss. 1999). Further, where "a party has frustrated the orderly judicial process by false or erroneous responses to interrogatories, that party should not be able to argue that its own conduct has removed it beyond the reach of sanctions." Pierce, 688 So.2d at 1390; Smith v. Tougaloo Coll., 805 So.2d 633, 642 (¶33) (Miss. Ct. App. 2002).

On at least once occasion, I have been able to have a party's pending claims dismissed with prejudice on the eve of trial for failure to provide discovery responses along with extremely misleading information in discovery.   This is something to keep in the back of your mind as an attorney and additionally as a party.