Judgment rendered September 21, 2022. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 54,708-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
QUENTIN THOMAS HENRY, ET AL Plaintiffs-Appellants
versus
GREATER OUACHITA WATER COMPANY Defendant-Appellee
Appealed from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana Trial Court No. 20152305
Honorable Daniel J. Ellender, Judge
OFFICE OF ANTHONY J. BRUSCATO Counsel for Appellants By: Anthony J. Bruscato
GEIGER, LABORDE & LAPEROUSE, LLC Counsel for Appellee, By: Ernest P. Gieger, Jr. Greater Ouachita Water Nicholas S. Bergeron Company John E. W. Baay, II J. Michael DiGiglia
STEWART LAW GROUP, LLC By: Arthur Lane Stewart
BREITHAUPT, DUNN, DUBOS, SHAFTO & WOLLESON, LLC By: Michael Lee Dubos Jared S. Scheinuk PHELPS DUNBAR, LLP Counsel for Appellee, By: Steven J. Levine Inframark, LLC J. Alan Harrell David J. Topping
Before THOMPSON, ROBINSON, and MARCOTTE, JJ. MARCOTTE, J.
This appeal arises from the Fourth Judicial District Court, Ouachita
Parish, the Honorable Daniel Ellender presiding. Plaintiffs appeal two
judgments of the trial court which together dismissed the claims of over
1,000 mass tort plaintiffs for failing to comply with discovery orders. For
the following reasons, the judgments are affirmed.
FACTS
The trial court rendered two judgments, dated July 13, 2021, and
November 8, 2021, dismissing the claims of 1,063 plaintiffs (collectively,
“appellants” or “plaintiffs”) filed against Greater Ouachita Water Company
(“GOWC”) and Inframark, LLC (“Inframark”) (collectively, “appellees” or
“defendants”) due to plaintiffs’ missing numerous discovery deadlines and
violating discovery orders. Plaintiffs are contract customers of Defendants
or household members living in the homes with which GOWC contracted to
provide service.
Suit was originally filed on August 4, 2015, by 19 plaintiffs who
alleged that they (or their property) were damaged or inconvenienced by
contaminated water supplied by GOWC. Following additional amended
petitions over the course of the following two years adding 5,665 plaintiffs,
the final plaintiff count stood at 5,684. In 2018, plaintiffs filed an amended
petition adding Inframark as a defendant, claiming that it had a management
agreement with GOWC regarding the operation of its water system. GOWC
and Inframark filed separate answers to plaintiffs’ multiple petitions. Once
the number of plaintiffs grew large, the parties reached an agreement
regarding discovery whereby plaintiffs would use an online accessible
“Plaintiff Fact Sheet/Database” (the “Database”), which contained a defined list of questions and requests to upload documents for each plaintiff to
answer.
On December 14, 2018, the trial court signed a scheduling order
requiring all plaintiffs’ discovery responses be entered into the Database, in
staggered intervals, no later than August 15, 2019. The order provided a
process by which the parties could resolve any deficiencies in plaintiffs’
discovery responses. The order also allowed defendants to file motions to
compel for plaintiffs that were nonresponsive to discovery requests and
plaintiffs were ordered to correct any deficiencies within 30 days from the
trial court’s ruling. Defendants were permitted to file motions to dismiss
those plaintiffs whose discovery responses remained incomplete or
nonresponsive within 30 days of the deadline to correct as ordered by the
trial court on any motion to compel.
August 15, 2019, passed and 5,238 plaintiffs out of 5,684 had not
entered any information at all into the Database. On December 13, 2019,
GOWC and Inframark filed their first motion to compel as to the wholly
nonresponsive plaintiffs. In their motion, defendants stated that they
notified plaintiffs of deficient or missing discovery responses on September
13, 2018. On October 11, 2018, plaintiffs’ counsel responded and detailed
their unsuccessful efforts to reach various plaintiffs to complete discovery.
The defendants asserted that over 90% of plaintiffs had not complied with
the scheduling order by completing any part of the plaintiff fact sheets.
Plaintiffs opposed defendants’ first motion to compel, stating that the
Database was “unworkable.” Plaintiffs’ counsel asserted that their staff
spent “more than one thousand hours” trying to upload plaintiffs’ data into
the computer system without success. Plaintiffs attached to their opposition 2 the affidavits of two staff workers employed by plaintiffs’ counsel detailing
the limitations of the Database. In particular, the affidavits described a
problem with the Database where plaintiffs were required to provide their
addresses from 2005 to present, and plaintiffs could not move beyond that
screen without providing every address for that time period.
Defendants filed a reply brief in support of their first motion to
compel, stating that the first they heard of any deficiencies in the Database
was when plaintiffs referenced them in their opposition. Defendants argued
that at one time plaintiffs followed the protocol of contacting the database
developer to address any issues that arose, but that they had not done so
since November 4, 2019.
On January 31, 2020, plaintiffs filed their own motion to compel,
claiming that GOWC engaged in “classic discovery abuse by dumping
literally tens of thousands of pages of documents on plaintiffs without an
adequate index or identifying information.” Plaintiffs asked that the trial
court order defendants to produce a narrative answer to each interrogatory
propounded by plaintiffs and include an index for the documents already
provided to plaintiffs.
GOWC opposed plaintiffs’ motion to compel, arguing that plaintiffs
had repeatedly propounded additional discovery requests upon it, making it
necessary for GOWC to continuously supplement its responses to
interrogatories and requests for admission. GOWC stated that plaintiffs’
interrogatories were often broadly worded and included requests for
documents transmitted to various government agencies over a 15-year
period. GOWC contended that it had Bates-stamped the documents it
3 provided to plaintiffs, and often directed plaintiffs to particular Bates-
numbered pages or a range of pages.
On February 14, 2020, defendants filed a second motion to compel
wherein they sought to compel partially responsive plaintiffs to complete
and correct their discovery responses within 30 days of the ruling on the
second motion to compel. Defendants stated that the plaintiffs that were the
subject of their second motion to compel provided deficient entries on the
Database and were notified that they needed to correct the deficiencies, but
that they had not complied with the deadlines established in the trial court’s
scheduling order.
The trial court held a hearing on the defendants’ first motion to
compel on February 19, 2020. The trial court noted that the Database was in
place for almost two years by the time of the hearing and that the first time
that plaintiffs’ counsel informed the trial court that the database was faulty
was at the hearing.
On March 17, 2020, the trial court issued an order on both defendants’
and plaintiffs’ motions to compel, which it subsequently amended in a
superseding order dated June 1, 2020. The amended order: (1) granted
defendants’ first motion to compel and dismissed with prejudice 3,671
plaintiffs who had not entered any information into the Database; (2) granted
in part and denied in part plaintiffs’ motion to compel; (3) directed plaintiffs
to amend their petition to reflect that plaintiffs’ claims do not predate
January 1, 2012; and (4) ordered that discovery would proceed in written
form and that plaintiffs must answer discovery by May 15, 2020.1
1 Plaintiffs filed a notice of intent and request for a return date with the trial court in order to seek supervisory review of the trial court’s March 17, 2020, order, and June 1, 2020, amended order. Plaintiffs, however, did not file a writ with this court. 4 On June 5, 2020, plaintiffs filed a motion to reconsider or to amend
the judgment on their motion to compel. GOWC opposed the motion. On
August 14, 2020, plaintiffs filed a motion for an extension of time to answer
discovery seeking an additional 90 days to respond. Defendants opposed the
motion. Then, on October 12, 2020, the trial court entered an order denying
plaintiffs’ motion to reconsider or amend its prior order.
The trial court also granted in part and denied in part plaintiffs’
request for an extension of time to answer discovery, ordering: (1) plaintiffs
to provide defendants, by October 30, 2020, with a list of those plaintiffs
that had not completed any form of discovery and those who were non-
communicative with plaintiffs’ counsel; (2) defendants to submit a judgment
of dismissal with prejudice of those same plaintiffs; (3) plaintiffs to submit,
by November 30, 2020, draft interrogatory responses from plaintiffs who
had not yet submitted interrogatory responses; and (4) the remaining
plaintiffs to provide defendants with completed, final, verified responses to
requests for production of documents by December 31, 2020.
On November 5, 2020, the trial court rendered an order dismissing 74
plaintiffs who had not completed any form of discovery response and whom
plaintiffs’ counsel were unable to communicate with despite their best
efforts, as detailed in the trial court’s October 12, 2020, ruling.
December 31, 2020, passed and plaintiffs still had not provided any
final, verified interrogatory responses or final responses to requests for
production since the trial court’s October 12, 2020, judgment, prompting
defendants to file their third motion to compel on January 12, 2021. In their
motion, defendants sought to have those plaintiffs that still had not provided
verified, complete responses to interrogatories and requests for production of 5 documents dismissed with prejudice. Plaintiffs opposed defendants’ third
motion to compel.
On April 15, 2021, the trial court granted defendants’ third motion to
compel. The trial court’s ruling dismissed with prejudice 704 plaintiffs who
did not provide draft interrogatory responses to defendants by November 30,
2020, and who did not provide produce final, verified discovery responses
by April 1, 2021. The trial court’s ruling further ordered the remaining
plaintiffs (other than the 58 who produced final, verified discovery responses
on March 31, 2021) to produce final, verified discovery responses along
with all responsive documents by April 30, 2021. Plaintiffs were warned
that those who failed to comply would be dismissed with prejudice. The
trial court set a hearing date of May 11, 2021, to address those plaintiffs who
did not comply with the April 30, 2021, deadline.
On May 27, 2021, the trial court signed a judgment related to
defendants’ third motion to compel. That judgment dismissed all remaining
plaintiffs who did not submit to defendants signed and notarized affidavits
dated on or before April 30, 2021. The trial court reserved the dismissals
pending a hearing set for June 18, 2021.
In anticipation of the hearing, defendants filed a memorandum on
June 1, 2021, arguing that the only plaintiffs whose claims should not be
dismissed for failing to comply with the trial court’s discovery orders
requiring final, verified discovery responses were the 57 plaintiffs who
provided such responses by March 31, 2021. Defendants further argued that
the approximately 857 plaintiffs who provided verification affidavits dated
April 30, 2021, or earlier should be dismissed, “because the affidavits that
plaintiffs now intend for defendants to match up with prior draft Excel 6 interrogatory responses are insufficient and lack any responses to requests
for production.” Defendants stated that each affidavit submitted by the 857
plaintiffs they referenced attested that each particular plaintiff had “read the
foregoing answers to interrogatories and requests for production of
documents,” but that no such discovery responses were attached to the
affidavits. Rather, plaintiffs’ counsel intended for defendants to match each
affidavit to draft interrogatory responses contained in an Excel spreadsheet.
Finally, defendants argued that many of the affidavits were defective.
On June 10, 2021, plaintiffs filed a memorandum in opposition
wherein they reiterated their complaints about defendants’ responses to
plaintiffs’ discovery requests. Plaintiffs argued the so-called “rough draft”
discovery responses included those that defendants flagged as deficient, but
plaintiffs did not necessarily agree that those responses were deficient.
Plaintiffs stated that due to the COVID pandemic they provided the
discovery responses in an Excel spreadsheet instead of as a hard copy.
Finally, plaintiffs disputed defendants’ claims that the affidavits were
deficient.
On June 17, 2021, plaintiffs filed a motion for permission to offer
evidence for the trial court to consider at the June 18, 2021, hearing, which
included affidavits and/or testimony about the allegedly contaminated water
supplied by GOWC. At the hearing, the trial court stated that it would allow
plaintiffs to proffer the additional evidence, but that the court would not
consider it.
On July 13, 2021, the trial court entered an order finding that 760
plaintiffs had not: (a) provided final, verified interrogatory responses or
responses to requests for production of documents to defendants by April 30, 7 2021; and (b) had not provided notarized affidavits dated on or before April
30, 2021, related to the 2020 draft interrogatory responses. Those plaintiffs
were dismissed with prejudice. All remaining plaintiffs (except the 57 that
produced final, verified discovery on March 31, 2021) were ordered to
produce to defendants by July 30, 2021, final, verified discovery responses
in the same format that the 57 plaintiffs produced on March 31, 2021. Those
plaintiffs that did not do so would be dismissed with prejudice. Finally, the
trial court ordered plaintiffs to pay $10,000 ($5,000 per defendant) in fees
and costs associated with granting defendants’ third motion to compel.
On July 21, 2021, plaintiffs filed a motion for new trial asking that the
claims of the 760 dismissed plaintiffs be reinstated. The trial court denied
the motion. On September 30, 2021, the trial court issued an order setting
an October 29, 2021, hearing for a determination of whether the remaining
plaintiffs adequately complied with the July 13, 2021, judgment, and, if not,
which plaintiffs were subject to dismissal with prejudice.
On November 8, 2021, the trial court issued a judgment in which it
dismissed with prejudice the claims of 307 plaintiffs who “failed to provide
final, verified interrogatory responses and responses to requests for
production, along with responsive documents, in the same format as the …
57 produced on March 31, [2021], by July 30, 2021, as previously ordered.”
The trial court further dismissed with prejudice the claims of 419 plaintiffs
who “failed to provide substantive responses to requests for production of
documents, as previously ordered, and instead responded ‘N/A’ to every
request for production of documents; notwithstanding the fact that a
significant portion of the requests … actually apply to them.”
8 Plaintiffs now appeal the July 13, 2021, and November 8, 2021,
judgments.
DISCUSSION
Appellants argue that the trial court impermissibly dismissed the
claims of over 1,000 plaintiffs for insufficient discovery responses when
GOWC was permitted to propound 178 interrogatories and 85 requests for
production. Appellants state that each plaintiff who was dismissed provided
answers in an online format and signed a verification attesting to the
accuracy of the answers. Appellants aver that each of the dismissed
plaintiffs signed releases authorizing GOWC to obtain their medical, social
security, and employment records.
Appellants state that there is no evidence that any individual plaintiff
was dilatory or at fault in responding to discovery, and that the only
evidence of fault is that of plaintiffs’ counsel. Appellants assert that the trial
court abused its discretion in dismissing those plaintiffs’ claims.
Appellants further argue that the only defendant that propounded
discovery was GOWC; however, the trial court dismissed plaintiffs’ claims
against Inframark. Plaintiffs state that Inframark did not propound discovery
and has no standing to complain about any “perceived deficiencies” in
plaintiffs’ discovery responses.
Lastly, appellants argue that GOWC was allowed to respond to their
discovery requests with a “document dump” consisting of 31,964 Bates-
stamped PDF pages and 248 boxes of documents in lieu of traditional
discovery responses. Appellants ask that the trial court’s rulings be reversed
and the case remanded for a trial on the merits.
9 Appellees argue that plaintiffs’ repeated noncompliance with
discovery orders over the course of nearly three years warranted dismissal
with prejudice. Appellees contend that the trial court’s two earlier
judgments informed plaintiffs that failing to produce complete, verified
discovery responses by certain dates would result in dismissal. Appellees
assert that plaintiffs cite no authority that precludes dismissal of their claims
against all defendants for violating court-ordered discovery related to
discovery requests originally propounded by one defendant, GOWC, when
the responses apply equally to both defendants. Appellees also argue that
GOWC and Inframark jointly filed motions to compel, participated in each
hearing, and were part of each judgment, without any corresponding
objection from plaintiffs.
Finally, appellees aver that plaintiffs’ brief addresses issues that either
are not relevant to the issues appealed or were not raised with the trial court
and should thus be disregarded. Appellees seek a ruling from this Court
affirming the trial court’s judgments.
It is well settled that a trial court is vested with inherent power to
maintain control of its docket. Boykins v. Boykins, 04-0999, p. 5 (La. App. 4
Cir. 4/24/07), 958 So. 2d 70, 74, writ denied, 07-1302 (La. 9/28/07), 964 So.
2d 369 (“A trial judge has wide discretion in controlling his docket”). This
court has likewise recognized a trial court's vast discretion with respect to
imposing sanctions for failure to comply with discovery orders. Wells v.
State, Dep’t of Pub. Safety & Corr., 41,836, p. 3 (La. App. 2 Cir. 3/7/07),
954 So. 2d 234, 236 (“The trial court has broad discretion in regulating
pretrial discovery, and its decision will not be disturbed on appeal absent a
clear abuse of that discretion”). Generally, an abuse of discretion results 10 from a conclusion reached capriciously or in an arbitrary manner. Jones v.
LSU/EA Conway Med. Ctr., 45,410 (La. App. 2 Cir. 8/11/10), 46 So. 3d 205.
The word “arbitrary” implies a disregard of evidence or of the proper weight
thereof. Id. A conclusion is “capricious” when there is no substantial
evidence to support it or the conclusion is contrary to substantiated
competent evidence. Id.
Parties may obtain discovery regarding any matter, not privileged,
which is relevant to the subject matter involved in the pending action,
whether it relates to the claim or defense of the party seeking discovery or to
the claim or defense of any other party. La. C.C.P. art. 1422. To this end,
GOWC sought to discover the factual basis and evidentiary support for
plaintiffs’ contaminated water claims; i.e., that plaintiffs and/or their
property were damaged by contaminated water supplied to their homes and
businesses by GOWC.
Where a party fails to answer an interrogatory or respond to a request
for production, a trial court may issue an order compelling discovery on the
motion of a party. La. C.C.P. art. 1469(2). For these purposes, an evasive or
incomplete answer is to be treated as a failure to answer. La. C.C.P. art.
1469(3). Thereafter, where a party fails to obey a trial court order
compelling discovery, the trial court may make such orders in regard to the
failure as are just, including any of the following:
(1) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order.
(2) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence.
11 (3) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a final default judgment against the disobedient party upon presentation of proof as required by Article 1702.
(4) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination.
(5) Where a party has failed to comply with an order under Article 1464, requiring him to produce another for examination, such orders as are listed in Subparagraphs (1), (2), and (3) of this Paragraph, unless the party failing to comply shows that he is unable to produce such person for examination.
La. C.C.P. art. 1471(A).
There is a distinction between the sanctions available for failure to
comply with discovery and the sanctions available for disobedience of court-
ordered discovery. Alcorn v. Duncan, 49,964 (La. App. 2 Cir. 8/26/15), 175
So. 3d 1014, writ denied, 15-1929 (La. 11/20/15), 180 So. 3d 1288. A party
may seek a court order compelling a response to discovery under La. C.C.P.
art. 1469, and if the order is granted, the mover may recover the reasonable
costs and attorney fees incurred in obtaining the order. La. C.C.P. art.
1469(A)(4). However, if a party fails to obey such an order by the trial court
to provide or permit discovery, the trial court may impose the more severe
sanctions set forth in La. C.C.P. art. 1471. By its express terms, La. C.C.P.
art. 1471 grants these remedies only when a trial court order compelling
discovery is in effect and a party has failed to obey the order. BancorpSouth
Bank v. Kleinpeter Trace, L.L.C., 13-1396 (La. App. 1 Cir. 10/1/14), 155 So.
3d 614, writ denied, 14-2470 (La. 2/27/15), 159 So. 3d 1067. Criteria to be
considered in imposing sanctions under La. C.C.P. art. 1471 are the
prejudice to the other party and the willfulness of the disobedient party.
Horton v. McCary, 93-2315 (La. 4/11/94), 635 So.2d 199, 204. 12 Dismissal is a sanction of last resort only to be imposed where a party
has failed to comply with a court order of discovery and only after an
opportunity to be heard has been afforded the litigant. Hutchinson v.
Westport Ins. Corp., 04-1592 (La. 11/8/04), 886 So. 2d 438. Before taking
the drastic action of dismissal for violation of a discovery order, a trial court
should consider the following four factors: (1) whether the violation was
willful or resulted from inability to comply; (2) whether less drastic
sanctions would be effective; (3) whether the violations prejudiced the
opposing party's trial preparation; and (4) whether the client participated in
the violation or simply misunderstood a court order or innocently hired a
derelict attorney. BancorpSouth Bank v. Kleinpeter Trace, L.L.C., supra.
Plaintiffs’ contemptuous failure to comply with the court-ordered
discovery falls squarely into the mandates of Article 1471 as a “fail[ure] to
obey an order to provide or permit discovery.” La. C.C.P. art. 1471.
Likewise, the Louisiana Supreme Court has held that “[l]itigants cannot
refuse to make a good faith effort to respond to discovery; if they do[,] they
run the risk of incurring sanctions, up to and including dismissal and
default.” Hutchinson, supra at p.4, 886 So.2d at 441. Accordingly, the trial
court's dismissal of the noncompliant plaintiffs was a remedy available to
the trial court pursuant to the plain language of La. C.C.P. art. 1471(A)(3).
The discovery at issue in this case was initially propounded on
November 11, 2016, and the Database became available for plaintiffs’
counsel staff to use on March 7, 2018. Despite numerous attempts over the
course of three years to obtain the information sought, which information
concerned the essential elements of their claim, plaintiffs’ responses were
either wholly absent or only partially complete. At the time of the July 13, 13 2021, and November 8, 2021, judgments, plaintiffs had either not responded
at all or provided incomplete responses on the Database that had been
available to them since March 7, 2018.
Although dismissal was the harshest sanction available to the trial
court for plaintiffs’ failure to comply with its order compelling discovery,
most of the less-severe alternatives available under La. C.C.P. art. 1471
would have yielded essentially the same result. For instance, the trial court
could have chosen to order that certain facts relating to plaintiffs’
contaminated water claims were established as proven for purposes of the
litigation in GOWC’s favor (La. C.C.P. art. 1471(A)(1)); it could have
prohibited plaintiffs from presenting evidence in support of their
contaminated water claims (La. C.C.P. art. 1471(A)(2)); or it could have
chosen to strike their allegations of contaminated water from the pleadings
(La. C.C.P. art. 1471(A)(3)). However, any of these sanctions, if imposed
by the trial court, would ultimately result in the dismissal of plaintiffs’
claims, since plaintiffs’ claims of damage caused by a contaminated water
supply were the central issue before the court.
Although the trial court could have chosen the least severe sanctions,
such as staying the action pending compliance with its discovery order (La.
C.C.P. art. 1471(A)(3)) or treating plaintiffs’ failure to comply with the
discovery order as contempt of court (La. C.C.P. art. 1471(A)(4)), these
remedies would not have been adequate. The Louisiana Supreme Court has
held that refusal to comply with court-ordered discovery is a serious matter,
and trial courts must have severe sanctions available to deter litigants from
flouting discovery orders. Horton v. McCary, supra.
14 When a party has been given sufficient notice and opportunity to be
heard prior to the imposition of a penalty, the sanction of dismissal may be
within the bounds of the trial court’s discretion. Henson v. Copeland, 451
So. 2d 41 (La. App. 2 Cir. 1984). In this case, the record reveals that
appellants were given more than sufficient notice and opportunity to be
heard prior to their dismissal. As detailed above, the trial court gave
appellants multiple chances to comply with its discovery orders, yet
appellants either did nothing or very little.
In Murungi v. Touro Infirmary, 12-0213 (La. App. 4 Cir. 3/1/13), 110
So. 3d 1250, the court found that the trial court did not abuse its discretion in
dismissing an action as a discovery sanction for the plaintiff’s pattern of
willful refusal to timely and adequately respond to discovery requests and
after previous motions to compel had been granted and the court had warned
the plaintiff of the consequences of failing to respond, including dismissal.
Similarly, in Wilson v. Brown Brother, 42,748 (La. App. 2 Cir.
12/5/07), 973 So. 2d 132, this court affirmed the trial court’s dismissal of the
plaintiff’s claim after plaintiff repeatedly failed to respond to discovery
requests and comply with the trial court’s orders regarding discovery. See
also Medical Review Panel Proceedings of Peter v. Touro Infirmary, 05-
0317 (La. App. 4 Cir. 7/6/05), 913 So. 2d 131, writ denied, 05-2077 (La.
2/10/06), 924 So. 2d 170 (trial court did not abuse its discretion in
dismissing action for failure to comply with discovery order compelling
answers to interrogatories when order specified that noncompliance would
result in dismissal); and Rice v. Sagrera, 95-155 (La. App. 3 Cir. 5/31/95),
657 So. 2d 419, writ denied, 95-1657 (La. 10/6/95), 661 So. 2d 470
15 (dismissal was the appropriate sanction for repeated failure of plaintiff to
comply with court order to respond to discovery requests).
In this case, without cause or justification, and despite multiple court
orders, plaintiffs willfully failed to comply with court-ordered discovery.
Plaintiffs had years to comply with discovery and refused. The record is
devoid of any evidence that the dismissed plaintiffs made good faith efforts
to comply with the trial court’s orders regarding discovery. Instead, the
record reflects a silent refusal on their part to even attempt adequate
discovery responses.
Plaintiffs’ refusal to provide the most basic information about their
claim renders the opposing parties unable to value the case or prepare for
trial. Dismissal is appropriate. There is no other adequate remedy in this
case. The record supports a conclusion that plaintiffs’ failure to comply with
discovery was willful. We cannot say that the trial court abused its
discretion in dismissing these plaintiffs. If a trial court may not dismiss a
case with prejudice under circumstances involving as much prolonged
willful disobedience as exists in this case, then discovery rules and court-
orders enforcing them are meaningless.
The remaining issues raised in appellants’ appeal were not raised at
the trial court and thus are not properly before this Court. Knowles v.
Knowles, 51,872 (La. App. 2 Cir. 2/28/18), 246 So. 3d 758, 765 (“This court
will not consider an issue raised for the first time on appeal”).
CONCLUSION
For the foregoing reasons, we affirm. The costs of the appeal are
assessed to Appellants.
AFFIRMED. 16 17