Appeal from the Superior Court of the District of Columbia (CA-612-02) (Hon. Natalia Combs Greene, Trial Judge)
Before Schwelb and Reid, Associate Judges, and Ferren, Senior Judge.
The opinion of the court was delivered by: Reid, Associate Judge
Submitted January 13, 2004
Concurring opinion by Associate Judge SCHWELB
Appellant Beverly Brown appeals the trial court's denial of her Super. Ct. R. 60 (b) motion to reinstate her personal injury complaint against appellees, Kone, Inc., 2020K L.P. and Quadrangle Management Co. Ms. Brown claims *fn1 that the trial court abused its discretion when it failed to consider whether she actually had notice of the trial court's order of dismissal or had extenuating circumstances that prevented her from promptly complying with the discovery schedule. She also contends that the trial court abused its discretion by failing to consider imposition of a less drastic sanction than dismissal of her claim. We reverse and remand the matter to the trial court for further proceedings consistent with this opinion.
The record before us shows that on July 22, 1999, Ms. Brown stepped inside an elevator in a building located at 2020 K Street, N.W., in the northwest quadrant of the District of Columbia. The elevator suddenly dropped from approximately the seventh floor to near the third floor, and caused Ms. Brown to be "thrown around," allegedly inflicting serious injury to her back.
On January 29, 2002, counsel for M s. Brown filed a negligence action against RGA, Inc., which owned the building at 2020 K Street; Kone, Inc., which contracted with RGA, Inc. to inspect and m aintain th e elevator; and Quadrangle M anagement Co., which contracted with RGA, Inc. to manage and service the building. *fn2 A scheduling order was issued to the parties and later modified after the parties filed a Joint Consent M otion to Modify Scheduling Order. Under the modified order, defendants' Rule 26 (b)(4) statement was due on December 11, 2002, and the close of discovery was set for January 11, 2003. Discovery proceeded and Ms. Brown was deposed on November 12, 2002. *fn3 On November 26, 2002, counsel for Ms. Brown made a motion to withdraw appearance as her counsel. That motion was granted on December 3, 200 2. Ms. Brown's Independent Medical Examination ("IME") was scheduled for December 9, 2002, but she did not appear, she asserted, "because [her] husband was in a serious car accident."
On December 11, 2002, Kone, Inc. filed a Joint Motion to Dismiss and Motion for Costs on behalf of itself and co-defendant 2020K L.P. Ms. Brown, who at this time was acting pro se, claims that she never received a copy of this Joint Motion to Dismiss and Motion for Costs. *fn4 On January 6, 2003, the trial court granted the defendants' Joint Motion to Dismiss and Motion for Costs. *fn5
Sometime, around mid-January, 2003, Ms. Brown received the order dismissing her case. On February 11, 2003, she made a motion pursuant to Super. Ct. Civ. R. 60 (b) to reinstate her action. The following day, Kone, Inc., filed an opposition to the Motion to Vacate the Order of Dismissal Pursuant to Rule 60 (b). On February 20, 2003, the trial court denied Ms. Brown's motion, asserting only that: "The court is persuaded by defendant Kone's arguments." In the defendants' motion to vacate, they argued that Ms. Brown: 1) filed an untimely motion to vacate; 2) was less than truthful about not receiving the Joint Motion to Dismiss and Motion for Costs; 3) could not show pursuant to Rule 60 (b) "any mistake, inadvertence, surprise, excusable neglect, newly offered evidence, fraud or any other reason to justify relief from the Court's order"; 4) failed to attend the first scheduled deposition and the later scheduled IME and provided no documentation "why"; and 5) failed to comply with the scheduling order deadlines thus forfeiting her right to discovery and to file motions. Ms. Brown timely appealed.
Ms. Brown contends that the trial court abused its discretion in denying, under Rule 60 (b), her motion to reinstate her complaint. She argues that the trial court should not have denied her motion to reinstate because her husband's automobile accident prevented her from complying with the scheduled date for her IME. She asserts that she never received the Joint Motion to Dismiss and Motion for Costs. Finally, Ms. Brown argues that the trial court never considered a lesser sanction than dismissal.
We reverse based upon the factors set forth in Starling v. Jephunneh Lawrence & Assocs., 495 A.2d 1157, 1159-60 (D.C. 1985), and reiterated in Ripalda v. American Operations Corp., 673 A.2d 659, 662 (D.C. 1996). "A Rule 60 (b) motion cannot be used as a substitute for appeal, Leeks v. Leeks, 316 A.2d 859, 860 (D.C. 1974), and appellate review of the denial of such a motion is limited to determining whether or not the trial court abused its discretion. Joseph v. Parekh, 351 A.2d 204, 205 (D.C. 1976)." Johnson v. Marcheta Investors Ltd. P'shp., 711 A.2d 109, 111 (D.C. 1998). We have stated that when ruling on a Rule 60 (b) motion:
in addition to determining whether there has been 'mistake, inadvertence surprise, or excusable neglect,' [the trial court] is required to consider the following five factors: 'whether the movant (1) had actual notice of the proceedings; (2) acted in good faith; (3) took prompt action; and (4) presented ...