Appeals from the Superior Court of the District of Columbia (CA-5629-98) (Hon. Rafael Diaz, Trial Judge)
Before Steadman and Reid, Associate Judges, and King, Senior Judge.
The opinion of the court was delivered by: King, Senior Judge
Before this court are an appeal and a cross-appeal challenging the trial court's orders of November 17, 2000, dismissing Kator & Scott's complaint and Lofton's counterclaim. The only issue is whether the trial judge abused his discretion in dismissing the complaint and counterclaim based solely on the parties' complete inaction with respect to their claims for at least fourteen-and-a-half months. We remand the case to the trial court for further proceedings in light of what we have said in this opinion.
While the trial judge did not refer specifically to Super. Ct. Civ. R. 41 (b), *fn1 the dismissals are assumed to be based on that rule since the judge cited the lengthy delay and a failure to prosecute as grounds for dismissal of the complaint and counterclaim. See Wolfe v. Fine, 618 A.2d 169, 172 n.10 (D.C. 1992) (citing Techniarts Video, Inc. v. 1631 Kalorama Assocs., 572 A.2d 1051, 1053 n.10 (D.C. 1990)). Also, because the judge did not indicate otherwise, the dismissals are deemed to be with prejudice. Granville v. Hunt, 566 A.2d 65, 66 n.1 (D.C. 1989) ("A dismissal under Rule 41 (b), unless otherwise specified, is with prejudice.").
The original complaint was filed by Kator & Scott on July 24, 1998, seeking damages against Lofton, a former client of the firm, for breach of contract for her failure to pay legal bills in the amount of $36,121.66. Lofton's counterclaim, filed on October 13, 1998, alleged that Kator & Scott had committed legal malpractice in its representation of her and that she was entitled to damages. Subsequent to the filing of the complaint and Lofton's failure to file a timely answer, a default was entered against Lofton on Kator & Scott's original complaint on September 30, 1998. However, after Lofton's consent motion to set aside the default was granted, Lofton's answer and counterclaim were deemed filed on October 13, 1998. The scheduling conference originally scheduled for October 30, 1998, had been cancelled on October 7, 1998, likely due to the fact of the initial default. It appears from the record that, even though the case was reinstated by the court's October 13, 1998 order, no scheduling order was entered thereafter and no other scheduling conference ever took place in the case.
On December 7, 1998, Kator & Scott's counsel filed certificates of discovery for a response to a request for admissions and a response to a request for production of documents. On February 16, 1999, Kator & Scott filed a certificate of discovery for interrogatories. On April 7, 1999, after failing to receive a response to its interrogatories or a March 29, 1999 letter to Lofton's counsel indicating that it had not yet received discovery from Lofton, Kator & Scott filed a Motion to Compel Discovery and for Sanctions. The trial court issued a written order on May 3, 1999, imposing upon Lofton sanctions in the amount of $250 and ordering Lofton to provide responses to the interrogatories previously propounded by Kator & Scott by May 20, 1999. *fn2 On July 22, 1999, Kator & Scott filed a certificate of discovery for another request for production of documents. The record does not indicate any filings or any other actions by the parties after that date. *fn3 The next entry is an October 23, 2000 order, issued sua sponte, scheduling a status hearing for November 17, 2000. The complaint and counterclaim were dismissed on that date after a hearing. Lofton filed her notice of appeal on December 18, 2000, and Kator & Scott filed its notice of appeal on January 2, 2001. *fn4
When the court dismissed the complaint and counterclaim, the case had lain dormant for at least fourteen-and-a-half months. *fn5 During that period there was no further discovery, Kator & Scott took no action with respect to its claim that Lofton never complied with the order compelling discovery entered by the trial court on May 20, 1999, and no dispositive motions were filed by either side. For all appearances, both parties had abandoned their claims. In light of that history we are not at all unsympathetic to the degree of frustration expressed by the trial judge regarding the inaction of the parties shown here. We are mindful that cases which linger for no good reason impose a burden upon court staff and judges and adversely impact resolution of other cases on the calendar. *fn6 See Dobbs v. Providence Hosp., 736 A.2d 216, 221 (D.C. 1999) ("[A]t issue is not solely prejudice to the immediate parties but also to other participants in the court system as a whole . . . . [E]ven where little or no prejudice results to a particular defendant, dismissal may in appropriate circumstances be justified." (internal citations and quotation marks omitted)). That being said, however, we must remember that
the trial court's discretion [to dismiss a case with prejudice under Rule 41 (b)] . . . . must be exercised carefully and in accordance with standards identified in our cases. Thus, dismissal should be adopted as a remedy only in extreme circumstances and only after the trial court has considered lesser sanctions. The inquiry should include whether the conduct calling for sanctions was willful and whether the other party was prejudiced by it, and the sanction imposed should, wherever possible, be tailored to the offense. These factors serve as a basis for determining whether or not the trial court has abused its discretion.
Furthermore, at least as a general proposition, dismissal with prejudice is an appropriate sanction only upon clear evidence of deliberate delay or upon a showing of contumacious conduct by the plaintiff. When the conduct calling for sanctions consists of delay, other relevant factors include the length of the delay and the resulting prejudice, if any, to the defendant. Wolfe, supra, 618 A.2d at 173 (internal citations and quotation marks omitted) (emphasis added); Smith v. Fairfax Vill. Condo. VIII Bd. of Dirs., 775 A.2d 1085, 1094 (D.C. 2001).
Another relevant factor to be considered is the reason for the delay. Smith, supra, 775 A.2d at 1094.
In this case, we do not know whether the trial court considered: (1) the reasons for the parties' delay in prosecuting their respective claims; (2) whether the parties' delay was deliberate or the result of contumacious conduct; (3) the propriety of any less severe sanctions; or (4) the prejudice, if any, to either party. Wolfe, supra, 618 A.2d at 173; Smith, supra, 775 A.2d at 1094. Nor do we know whether the order compelling discovery was ever complied with and, if not, why Kator & Scott did not seek to enforce it. See Super. Ct. Civ. R. 37 (b).
We do not believe that the circumstances here necessarily presented the trial court with all or nothing alternatives, i.e., the trial court was not limited to either dismissing with prejudice or doing nothing. *fn7 "[D]ismissal should be adopted as a remedy only in extreme circumstances and only after the trial court has considered lesser sanctions." Wolfe, supra, 618 A.2d at 173; Redman v. Kelty, 795 A.2d 684, 687 (D.C. 2002); District of Columbia v. Serafin, 617 A.2d 516, 519 (D.C. 1992) (per curiam). See, e.g., Gill v. Howard Univ., No. 00-CV-1407, slip op. at 3-4 (D.C. June 27, 2002) (per curiam) (affirming dismissal without prejudice of plaintiff's complaint and issuance of default judgment against plaintiff on defendant's counterclaim for, inter alia, failure to prosecute case, failure to appear at pretrial conference, and failure to engage in proper or meaningful discovery). "Alternative sanctions [the court could have imposed but failed to] include[d] dismissal without prejudice, an assessment of . . . costs and reasonable fees against [either party], or a finding that [either party's counsel][wa]s in contempt of court and the imposition of a fine." LaPrade v. Lehman, 490 A.2d 1151, 1155-56 (D.C. 1985) (footnotes omitted). *fn8
Because the trial court entered dismissals with prejudice without considering the factors we have mentioned or potential alternative courses of action, we must remand the case for further proceedings. On remand, the trial court should take such action it deems appropriate consistent with ...