Discovery Sanction of Striking Complaint

Civil Procedure—Sanction of Default for Discovery Abuse

Hammoudeh v. Jada, ___Az. Rep. __, 2 CA-CV 2009-0043 (Ct. App. Div. II, October 9, 2009)(J. Vasquez)

STRIKING COMPLAINT AND ANSWER TO COUNTERCLAIM APPROPRIATE SANCTION WHERE PERVASIVE PATTERN OF INTENTIONAL DELAY AND SUBTERFUGE BY PLAINTIFF DEMONSTRATED ON THE RECORD

Plaintiff sued defendant and defendant counterclaimed regarding the sale of a used automobile. Plaintiff never filed a disclosure statement, was repeatedly late with discovery responses and twice responded only upon the eve of a hearing on a motion to compel. Court awarded fees and sanctions in one such incident where plaintiff failed to even respond to motion to compel or present evidence at the hearing.

Ultimately, defendant moved to strike plaintiff's complaint and answer to counterclaim for ongoing refusals to produce documents requested. The plaintiff did not respond to the motion and it was granted. Subsequently at the default hearing the plaintiff's counsel and not plaintiff attended the first day but neither attended the second day. Judgment for $22,617.42 was entered.

The Court of Appeals sustained this result despite the fact the court denied plaintiff's request for an evidentiary hearing to establish whether the defalcations were the fault of counsel or the plaintiff himself. Although Seidman v. Seidman, 563 Ariz. Adv. Rep. 17 (Ct. App. Aug. 25, 2009) held an evidentiary hearing must be held before a discovery sanction as severe as dismissal of a pleading is allowed, the Court of Appeals here found the facts here justified the dismissal.

Here the court found the plaintiff himself had avowed the accuracy of discovery responses that were patently false, misleading and unresponsive. The “pervasive pattern of intentional discovery delay and subterfuge” along with the opportunity to present evidence at the hearing where attorneys' fees sanctions were awarded was adequate to support this result