Thompson v. Kirby ( 2016 )

IN 'H-IE SUPREl\/IE COURT OF THE STATE OF DELAWARE
RICKY THOMPSON, §
§ No. 558, 2015
Plaintiff Below, §
Appellant, § Court Below_Superior Court
§ of the State of Delaware
v. §
§ C.A. No. Nl4C-07-203
NORA BETH KIRBY, §
§
Defendant Below, §
Appellee. §
Submitted: February 5, 2016
Decided: April 25, 2016
Before STRINE, Chief Justice; HOLLAND and VALIHURA, Justices.
0 R D E R
This 25th day of April 20l6, after careful consideration of the parties’
briefs on appeal and the Superior Court record, it appears to the Court that:
(l) The pro se appellant, Ricky Thompson, has appealed the
Superior Court’s dismissal of his personal injury complaint filed with the
assistance of counsel in July 20 l4. The complaint alleged that Thompson was
injured in an automobile accident caused by the appellee, Nora Beth Kirby,
Having found no merit to the appeal, we affirm the Superior Court’s judgment.
(2) The record reflects that Kirby, through her counsel, answered
Thompson’s personal injury complaint and served interrogatories and a
request for production of documents (hereinafter "disc0very request") on
Thompson. When Thompson did not respond to the discovery request and to
Kirby’s letter requesting the belated response, Kirby filed a motion seeking
an order compelling Thompson to respond. Ten days later, Thompson’s
counsel filed a motion to withdraw as counsel. Both the motion to compel
and the motion to withdraw were noticed for a hearing on June 23, 2015, A
copy of the motion to withdraw was served on Thompson.
(3) Thompson did not attend the June 23 hearing on the motion to
compel and the motion to withdraw. After the hearing, the Superior Court
issued written orders granting both motions. The order granting the motion
to compel required Thompson to respond to Kirby’s discovery request within
forty-five days. By letter dated June 23, 2015, the Superior Court sent the
orders to Thompson with the following explanation:
As a party in this case - indeed, the party who
initiated the litigation - you are required to respond
to discovery requests. The Court found that you had
been served with discovery requests and that you
had not responded. You have forty-five (45) days
to respond to the discovery requests. Please keep in
mind that the Court can impose sanctions for the
failure to respond to discovery.
(4) On September l8, 2015, Kirby filed a "motion for sanctions
and/or motion to dismiss" under Superior Court Civil Rule 37.1 Kirby
requested dismissal of the complaint for Thompson’s intentional failure to
respond to the discovery request and to obey the June 23 order granting the
motion to compel. Kirby’s counsel indicated that he received a response &om
Thompson to the discovery request, but the response failed to answer the
interrogatories and did not include requested medical records. Instead,
according to Kirby’s counsel, Thompson’s response included "many
documents related to his status as an Indigenous National of the lnternational
Indigenous Society" and demanded that counsel produce a "Registration
Statement" before Thompson would answer the interrogatories.
(5) Thompson filed a document entitled "An Affidavit of Truth"
opposing the dismissal of his complaint. ln that document, Thompson stated:
My [discovery] response to [K.irby’s counsel] is that
she hath to send me her Foreign Agent Statement
that she filed with the Attorney General Office
pursuant to 22 US Code 61 l paragraph 2 and 22 US
Code paragraph l . . . otherwise l could be speaking
to a ghost or pirate[.] I don’t know who you are[.]
[I]dentify yourself[.] [W]hat is your nationality[?]
You are using Color of law when you use all capital
letter[.] [T]his is a violation of 18 US Code lOO1,
241, 242.
Stop referring to me as a Gollum ie A Frankenstein
like creature created from Jewish Mysticism,
Colored Man, Black Man, Straw Man etc. Color of
Law is for Color People. If you don’t send me your
Foreign Agent Registration statement in seven Days
this is proof that you are not able to represent
3
[Kirby] And you have committed fraud and must
step down or be held liable for darnages.
After receiving Thompson’s response to Kirby’s motion to dismiss, the
Superior Court granted the motion and dismissed Thompson’s complaint
under Rule 37(b)(2)(C).2 The court ruled that Thompson’s "outright refusal
to respond to legitimate and appropriate discovery requests is an intolerable
abuse of judicial process." This appeal followed.
(6) On appeal, Thompson has filed an opening brief, a revised
opening brief, and a document entitled "Affidavit of Truth," which was
deemed to be his reply brief to the answering brief filed by Kirby’s counsel.
ln his briefs, Thompson claims that the caption of the case in the Superior
Court mistakenly identifies him as "Richard Thompson" rather than his given
name "Ricky Thompson." Thompson does not explain how or why the error
in the caption, which arose from the complaint and other initiating papers filed
by his own counsel, is relevant to the dismissal of the complaint, and it does
not appear that Thompson brought the error to the attention of the Superior
Court. In the absence of the Superior Court’s consideration of the claim of
2 Id. at (b)(Z)(C) (providing, in pertinent part, that a sanction for a party’s failure to comply
with a discovery order can include dismissal of the action or a judgment by default against
the disobedient party).
4
error, and having discerned no basis or reason to consider the claim in the
interest of justice, the Court has not considered the claim on appeal.3
(7) Thompson’s briefs on appeal consist of an amalgam of citations
to the United States Constitution and Code and an assortment of arguments,
"statements of fact," legal maxims, and non-record documents. Other than
claiming error in the case caption, Thompson’s briefs bear no apparent
relationship to his complaint or this appeal. While we afford pro se litigants
some degree of leniency in fulfilling the Court’s briefing requirements, an
appe11ant’s brief, at the very 1east, must set forth some argument that is
capable of review.‘l In this case, Thompson’s briefs set forth no discernible
claim of error in the Superior Court’s dismissal of his complaint.
(8) Rule 37 permits the Superior Court to dismiss the claims of a
party who fails to permit or provide discovery.$ But because dismissal is a
severe sanction, "‘this Court has interpreted Rule 37(b)(2)(C) to require a
showing of an element of wilfulness or conscious disregard of court-ordered
3 Del. Supr. Ct. R. 8 (governing questions which may be raised on appeal).
4 Rodrz``guez v. State, 2014 WL 1513282 (Del. April l6, 2014) (citing Yancey v. Nat’l Trust
Co., 1998 WL 309819 (Del. May 19, l998)).
5 Supra notes l-2.
discovery before such sanction is imposed."’6 Dismissal is appropriate "if no
other sanction would be more appropriate under the circumstances.’”
(9) This Court reviews a dismissal of an action for failure to provide
discovery under an abuse of discretion standards In this case, having
considered the parties’ briefs on appeal, and under the circumstances as
reflected in the available record, we find no abuse of discretion in the
dismissal of Thompson’s complaint under Rule 37(b)(2)(C) for his failure to
comply with the Superior Court’s June 23 discovery order.
NOW, TPEREFORE IT IS ORDERED that the judgment of the
Superior Court is AFFlRl\/IED.
BY THE COURT:
/s/ Randy l Hollana'
Justice
6 Hoag v. Amex Assurance C0., 953 A.2d 713, 717 (Del. 2008) (quoting Holt v. Holt, 472
A.2d 820, 823 (Del. 1984) (citing Sundor Elec., Inc. v. E.JT. Constr. Co., 337 A.2d 651,
652 (Del. l975))).
7 Id.
8 Id. (citations omitted).