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Rothberg v. Quadrangle Development Corp.

July 28, 1994

HERBERT ROTHBERG, APPELLANT/CROSS-APPELLEE
v.
QUADRANGLE DEVELOPMENT CORP., ET AL, APPELLEES/CROSS-APPELLANTS



Appeal from the Superior Court of the District of Columbia; (Hon. Colleen Kollar-Kotelly, Motions Judge), (Hon. Gladys Kessler, Motions Judge)

Before Ferren, and Steadman, Associate Judges, and Kern, Senior Judge.

The opinion of the court was delivered by: Steadman

STEADMAN, Associate Judge: This is an appeal *fn1 from the trial court's dismissal with prejudice of appellant's amended complaint following the failure to timely file a proper Super. Ct. Civ. R. 24(c) pleading in intervention, in accordance with the trial court's previous order which had specifically warned that such a dismissal would be the consequence of a failure to comply. We affirm.

I.

Appellant filed his initial complaint in this civil action against the appellees on October 5, 1990, and an amended complaint on October 31, 1990. *fn2 A series of discovery actions ensued, marked by appellant's continual intransigence. Although the trial court denied appellees' motion to dismiss on that basis on October 1, 1991, the court stated that " views [appellant's] excuses for non-compliance as insufficient and somewhat disingenuous. . . . The Court will consider appropriate sanctions if the documents are not produced forthwith."

Although appellant had made no mention of the fact in either complaint, it turned out that in December 1989, appellant had filed for chapter 11 bankruptcy protection and a trustee in bankruptcy, John Guinee, was appointed on October 29, 1990. Accordingly, in a further order on October 1, 1991, the trial court granted appellees' unopposed motion to dismiss on the basis that the trustee in bankruptcy and not appellant was the real party in interest under Super. Ct. Civ. R. 17(a).

Appellant and the trustee thereupon filed a joint motion to vacate the October 1, 1991 order of dismissal. On January 31, 1992, the trial court entered an order holding this motion in abeyance and requiring the trustee to file a pleading, pursuant to Super. Ct. Civ. R. 24(c), describing its claims of intervention, and to notify the court of its intention to intervene by February 14, 1992 or the court's earlier order of dismissal would stand. *fn3

In response, the trustee on February 28, 1992, filed a "Motion to Intervene and Statement" pursuant to Super. Ct. Civ. R. 24(c) purporting to comply with the court's January 31, 1992 order. On May 7, 1992, the trial court reinstated the civil action as to all defendants except Luther H. Hodges, Jr. and Harold Gordon *fn4 and granted the trustee's motion to intervene conditionally. The trial court found that the trustee's statement of February 28, 1992 regarding which claims he intended to pursue was not a "pleading" under Rule 24(c), *fn5 and therefore made the grant of the motion to intervene expressly contingent upon the filing of a proper 24(c) pleading. Most importantly, the court ordered that the proper 24(c) pleading "must be filed on or before 4:00 p.m., May 22, 1992 or the case will be dismissed with prejudice as to all defendants."

In addition, because the trustee had not complied with the $500 sanction imposed in the October 1, 1991 order, see note 3, (supra) , the court again ordered the trustee to pay the sanction on or before July 10, 1992 or judgment would be entered against him. The court further warned that "if the Trustee at some future point in time abandons the claims - then , with or without counsel, must proceed without any delay whatsoever. There will be no further extensions of any kind." The court also imposed another $500 sanction payable by June 12, 1992, for "[appellant's] flagrant disregard for discovery deadlines" and the necessity of two motions to dismiss to compel compliance. *fn6 The trial court cautioned that "this case has been plagued with a lack of prosecution and subsequent last minute efforts to move forward when pushed to do so by the defendants. As previously indicated, no further delays will be tolerated and any lack of prosecution will result in dismissal with prejudice as to all remaining defendants."

Nonetheless, the trustee failed to file the 24(c) pleading by the court-imposed deadline. On June 22, 1992, the trial court denied appellant's motion to file the 24(c) proposed pleading out of time based on the record in this case and the very explicit orders of the trial court. *fn7 The trial court noted that "there had been 'flagrant disregard for discovery deadlines,' imposition of sanctions, lack of prosecution by the plaintiff, and 'last minute efforts to move forward when pushed to do so by the defendants.'" The trial court also found that:

Judge Kollar-Kotelly [ *fn8] extended deadlines on several occasions for the plaintiff and finally, on May 7, 1992, entered a specifi'c Order, detailing the inadequacies of the handling of plaintiff's claims, and gave plaintiff a final opportunity to present his claims in cognizable and proper form to the Court. She ordered that the Trustee's motion to intervene could be granted "contingent on the Trustee's filing of a proper pleading on or before May 22, 1992." Moreover, she explicitly warned the trustee that "no further delays will be tolerated and any lack of prosecution will result in a dismissal with prejudice as to all remaining defendants." Her order could not have been clearer.

The trustee still could not manage to comply. He failed to file "a pleading" which he had been ordered to do on at least two separate occasions by Judge Kollar-Kotelly. More importantly, he again failed to meet the Court-ordered deadline and failed to file his papers (inadequate as they were) by the close of business on May 22, 1992. Given the record in this case, and the very explicit Orders, this Court concludes that there is good cause to deny the Trustee's Motion for Leave to File, Time Having Expired.

On August 14, 1992, the trial court denied appellant's motion to reconsider and, after considering the entire record, dismissed the ...


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