Summary Judgment is not a Discovery Sanction

Civil Procedure—Summary Judgment not a Sanction for Failing to Properly Respond

Tilley v. Delci, 548 Ariz. Adv. Rep. 15 (App. Div. I, January 29, 2009)(Justice Downie)


The plaintiff was involved in an automobile accident and sued the adverse driver. For months plaintiff failed to file a Rule 26.1 disclosure statement and failed to respond to discovery requests including requests for admission. A Rule 16 scheduling conference was held at which time the court ordered the plaintiff to respond to the discovery and requests within 30 days. Plaintiff did not comply.

Thereafter the defendant filed a motion for summary judgment based primarily upon the plaintiff's failure to respond to a request to admit “that he had not been injured or damaged as a result of the automobile accident.” The plaintiff did not file a timely or proper response. Instead, on the day before the hearing on the motion the plaintiff hand-delivered a disclosure statement and discovery responses along with a “cursory” response to the motion that essentially said only that plaintiff had filed a disclosure and responded to the discovery. The disclosure and discovery was not attached to the response.

At the hearing the court ordered the plaintiff to pay attorneys' fees to the defense for its failure to timely respond to discovery requests and ordered a “proper response” to the motion be filed within 10 days. Thirteen days later the plaintiff filed a response supported only by an affidavit signed by plaintiff's attorney who mostly attempted to explain the delays but failed to properly raise a question of fact. The attorney had no personal knowledge of the liability facts. The court found this response still did not comply with Rule 56 (e). The court again ordered plaintiff to file an appropriate response within 30 days. Plaintiff failed to comply. Oral argument was held and the motion for summary judgment was granted.

Plaintiff then moved for reconsideration which was denied.

The Court of Appeals first acknowledged that the trial court was correct in finding the plaintiffs' responses to the motion for summary judgment were not in compliance with Rule 56 (e). The responses failed to raise any questions of fact, did not incorporate any discovery responses and attached only one affidavit which contrary to the rule was not signed by anyone with personal knowledge of the facts of the case. “In deciding a motion for summary judgment, the trial court considers 'those portions of the verified pleadings, deposition, answers to interrogatories and admissions on file which are brought to the court's attention by the parties.'”

The court rejected plaintiff's argument that the granting of the summary judgment was an inappropriate discovery sanction. The court pointed out that the award of attorneys' fees was a sanction but the granting of the summary judgment motion was based solely upon the deficiencies in plaintiff's response to the motion. “Summary judgment is not a sanction. It is a 'final judgment on the merits.'”

Lastly, the court held that the trial court is not required to consider evidence first brought to its attention in a motion for reconsideration.

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