Dorothy Nouhan v. Elmhurst Tap Room Inc ( 2019 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
DOROTHY NOUHAN, UNPUBLISHED
February 5, 2019
Plaintiff-Appellant,
v No. 340616
Wayne Circuit Court
ELMHURST TAP ROOM, INC., LC No. 16-012876-NO
Defendant-Appellee.
Before: K. F. KELLY, P.J., and RIORDAN and GADOLA, JJ.
PER CURIAM.
Plaintiff, Dorothy Nouhan, appeals as of right the order of the trial court granting
defendant, Elmhurst Tap Room, Inc.’s, motion to dismiss for lack of progress. We affirm.
This case arises from plaintiff’s claim that she was injured in defendant’s restaurant and
bar in Dearborn, Michigan, on April 23, 2016. Plaintiff filed her complaint initiating this action
on October 11, 2016, alleging that she was severely injured when she slipped on a rug that she
alleged defendant had negligently maintained in the restaurant. On January 9, 2017, the trial
court entered a scheduling order requiring the parties to comply with certain deadlines for filing
witness lists, completing discovery, case evaluation, and a settlement conference.
Thereafter, plaintiff failed to comply with the trial court’s scheduling order and failed to
respond to defendant’s discovery requests. Defendant timely filed its witness list, but plaintiff
failed to file her witness list. Defendant timely filed its first set of interrogatories and request for
production of documents, but plaintiff did not respond to the discovery requests. Defendant
sought to depose plaintiff, but plaintiff cancelled each of the three scheduled deposition dates on
the day before each deposition was to take place. Defendant thereafter moved to adjourn the
case evaluation in light of the uncompleted discovery. Plaintiff did not respond to the motion
and apparently did not attend the hearing on the motion. The trial court granted the motion to
adjourn the case evaluation.
On August 8, 2017, defendant filed a motion to dismiss for lack of progress. As of the
date of that motion, 10 months had passed since plaintiff’s complaint had been filed with no
progress by plaintiff. Plaintiff filed a response to the motion, arguing that it was difficult for
plaintiff to respond to discovery requests because she was recovering from knee replacement
surgery.
At the hearing on the motion, the trial court stated:
THE COURT: No witness list has been filed, which is a violation of the court
order.
DEFENSE COUNSEL: Correct.
THE COURT: Maybe I should just dismiss the case with prejudice. I guess you
don’t care about the case or your client, so why should I or [defense counsel]?
PLAINTIFF’S COUNSEL: Your Honor, we care very much about the case, our
client’s an 89 year old woman, we’ve had some difficulty coordinating. Right
now there is a deposition scheduled for September 13th, we don’t anticipate any
issues whatsoever with that deposition.
THE COURT: I’m not going to Track 3 [for scheduling] on a case where
absolutely nothing’s been done, she may be 89, but -- You’re not 89 and you
haven’t even bothered to respond to anything that he’s communicated, you or
whoever it is in your office.
PLAINTIFF’S COUNSEL: It’s me, yes.
THE COURT: . . . I’m just done. This courthouse is rife with people who can’t
get their cases together and then it becomes our problem in our laps and we got to
put things to Track 3. Track 3s on med mals, sure. On these little piddly-wink
cases, no way, not doing it anymore. We can have authorizations signed in this
courthouse, we can respond to e-mails from opposing counsel, we can do
interrogatories, otherwise I’m dismissing cases. New sheriff in town.
PLAINTIFF’S COUNSEL: Could you do so without prejudice, Your Honor?
THE COURT: No. You’ve done absolutely nothing for the last year, nothing.
And on the eve you show up, you communicate when your back is against the
wall and you come in here and want me -- No, I think we’re done. Case
dismissed with prejudice.
The trial court entered an order dismissing plaintiff’s complaint with prejudice, and
thereafter also denied plaintiff’s motion for reconsideration. Plaintiff now appeals, arguing that
the trial court abused its discretion because it did not consider alternative sanctions on the record
before dismissing this case. We disagree.
We review a trial court’s decision to dismiss an action for an abuse of discretion.
Maldonado v Ford Motor Co, 476 Mich. 372, 388; 719 NW2d 809 (2006). “[A]n abuse of
discretion standard acknowledges that there will be circumstances in which there will be no
single correct outcome; rather, there will be more than one reasonable and principled outcome.”
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Id., quoting People v Babcock, 469 Mich. 247, 269; 666 NW2d 231 (2003). If the trial court
selects an outcome from among the principled and reasonable outcomes, we will conclude that
the trial court did not abuse its discretion. Maldonado, 476 Mich. at 388.
“Trial courts possess the inherent authority to sanction litigants and their counsel,
including the right to dismiss an action.” Id. “This power is not governed so much by rule or
statute, but by the control necessarily vested in courts to manage their own affairs so as to
achieve orderly and expeditious disposition of cases.” Id. at 376. Additionally, authority to
dismiss a case is conferred by court rule under MCR 2.502(A)(1), which states:
On motion of a party or on its own initiative, the court may order that an action in
which no steps or proceedings appear to have been taken within 91 days be
dismissed for lack of progress unless the parties show that progress is being made
or that the lack of progress is not attributable to the party seeking affirmative
relief.
MCR 2.502(B)(1) states, “If a party does not make the required showing, the court may direct
the clerk to dismiss the action for lack of progress. Such a dismissal is without prejudice unless
the court specifies otherwise.”
However, “[d]ismissal is a drastic step that should be taken cautiously.” Vicencio v
Ramirez, 211 Mich. App. 501, 506; 536 NW2d 280 (1995). Therefore, before dismissal, the trial
court must “carefully evaluate all available options on the record and conclude that the sanction
is just and proper.” Id. There are some factors, while not exhaustive, that a court should
consider before dismissal:
(1) whether the violation was wilful or accidental; (2) the party’s history of
refusing to comply with previous court orders; (3) the prejudice to the opposing
party; (4) whether there exists a history of deliberate delay; (5) the degree of
compliance with other parts of the court’s orders; (6) attempts to cure the defect;
and (7) whether a lesser sanction would better serve the interests of justice. [Id. at
507.]
In this case, the trial court did not select an outcome outside the range of reasonable and
principled outcomes when it dismissed plaintiff’s case. See Maldonado, 476 Mich. at 388.
Contrary to plaintiff’s assertions, the trial court addressed the factors delineated in Vicencio,
albeit without referencing each factor. With regard to the first factor, whether the violation was
willful or accidental, the trial court pointed out that plaintiff’s counsel had not complied with the
trial court’s scheduling order and had also failed to respond to defense counsel’s
communications. It is reasonable to infer that these failures were not inadvertent. With regard to
the second factor, plaintiff’s history of refusing to comply with previous court orders, again, the
trial court noted that plaintiff failed to comply with the trial court’s scheduling order, and noted
that plaintiff had “done absolutely nothing for the last year . . . .” With respect to the third factor,
prejudice to the opposing party, and the fourth factor, history of deliberate delay, again, the trial
court noted that plaintiff had done nothing in the approximate 10 months after filing the
complaint, from which it is reasonable to conclude that defendant was hindered in its ability to
defend the lawsuit. Indeed, this utter failure to respond, including the cancellation of 3
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scheduled depositions of plaintiff on the eve of each deposition, led defendant to seek an
adjournment of the case evaluation. With respect to the fifth factor, degree of compliance with
other parts of the court’s orders, the trial court indicated that plaintiff failed timely to comply
with discovery requests and did not file a witness list. With respect to the sixth factor, attempts
to cure the defect, the trial court noted that plaintiff did not attempt to cure the defects until the
eve of the hearing on the motion to dismiss. With respect to the seventh factor, consideration of
lesser sanctions, the trial court rejected plaintiff’s request to dismiss the case without prejudice,
stating “You’ve done absolutely nothing for the last year, nothing.” Therefore, the trial court
considered dismissal without prejudice, but rejected that option. Plaintiff further argues that the
trial court used its opinion that plaintiff’s case was a “piddly-wink case” to justify its refusal to
entertain alternative sanctions. However, the trial court did not fail to consider lesser sanctions;
rather, the trial court rejected lesser sanctions in favor of dismissal with prejudice.1
In sum, the trial court considered that plaintiff had failed to comply with the trial court’s
scheduling order, had failed to respond to defendant’s discovery requests, had failed to respond
to defendant’s communications, and had failed to move forward in any way after filing the
complaint until the eve of the hearing on the motion to dismiss. Although the trial court could
have addressed the Vicencio factors more fully on the record, under these circumstances, the trial
court did not abuse its discretion in dismissing plaintiff’s complaint with prejudice.
Affirmed.
/s/ Kirsten Frank Kelly
/s/ Michael J. Riordan
/s/ Michael F. Gadola
1
While we do not condone the trial court’s description of plaintiff’s cause of action as a “piddly-
wink case,” and urge the trial court to be more judicious in its choice of words in the future, the
trial court’s frustration was understandable. This remark was made in the course of accurately
observing that a case of this nature did not warrant being placed on a slower litigation track.
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