                                                                                             June 26 2013


                                           DA 12-0501

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2013 MT 170N



BRITT T. LONG,

              Plaintiff and Appellant,

         v.

STATE OF MONTANA, MONTANA
DEPARTMENT OF NATURAL RESOURCES,

              Defendant and Appellee.



APPEAL FROM:            District Court of the First Judicial District,
                        In and For the County of Lewis and Clark, Cause No. CDV-2009-107
                        Honorable Kathy Seeley, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Britt T. Long, Pro Se, Lewistown, Montana

                For Appellee:

                        John F. Sullivan, Kate McGrath Ellis; Hughes, Kellner, Sullivan & Alke,
                        PLLP, Helena, Montana


                                                     Submitted on Briefs:   May 8, 2013
                                                                Decided:    June 26, 2013




Filed:

                        __________________________________________
                                          Clerk
District Court Judge John W. Larson delivered the Opinion of the Court.


¶1     Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not serve

as precedent. Its case title, cause number, and disposition shall be included in this Court’s

quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2     This is an appeal from an Order dismissing a case with prejudice, and assessing costs

and attorney’s fees against a plaintiff who failed to attend her own court-ordered deposition.

¶3     Plaintiff/Appellant Britt T. Long (Ms. Long), a licensed Montana attorney, brought

this case against her former employer, the Defendant/Appellee State of Montana, Montana

Department of Natural Resources (DNRC), for alleged violations of the Wrongful Discharge

Act and the Family Medical Leave Act. The case was filed February 10, 2009.

¶4     Ms. Long’s deposition was first scheduled for October 28, 2011, upon agreement of

counsel for Ms. Long and DNRC. Ms. Long’s attorney withdrew by motion submitted

September 26, 2011, and ordered September 28, 2011. Following the order permitting

withdrawal, an Amended Notice of Deposition was sent by DNRC’s counsel to Ms. Long.

The Amended Notice changed only the place of the deposition from her former attorney’s

office to the court reporter’s office. The date and time remained as earlier agreed upon.

¶5     Ms. Long cancelled the October 28, 2011, deposition by faxing a cancellation letter to

DNRC’s counsel on October 25, 2011. On the next day DNRC sent a Second Amended

Notice of Deposition rescheduling Ms. Long’s deposition to November 8, 2011. This


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Second Amended Notice was personally served on Ms. Long. On October 27, 2011,

DNRC’s counsel sent a letter with contact information to Ms. Long. On November 7, 2011,

the day before the rescheduled deposition, Ms. Long sent an e-mail detailing her cancellation

of the November 8 deposition because of the length of the deposition and a funeral she had

to attend. On the same day, Ms. Long faxed a Motion and Brief to Stay Proceedings, but did

not file the originals with the Clerk of Court. In response to the Motion and Brief to Stay

Proceedings, DNRC moved for the District Court to order Ms. Long’s deposition the week of

December 12, 2011.

¶6     The District Court then ordered Ms. Long to attend her deposition over a period of

three days: 2.5 hours on December 14, 2011; 2.5 hours on December 15, 2011, and 2 hours

on December 16, 2011. The court’s order also indicated that the Motion to Stay had been

denied.

¶7     Ms. Long did not respond to the request by DNRC or the court order. Ms. Long also

failed to attend her deposition on any of the dates ordered.

¶8     DNRC filed a Motion for Sanctions on January 5, 2012, seeking dismissal of the case

with prejudice, as well as the award of costs and attorney’s fees incurred in preparing for Ms.

Long’s deposition. Ms. Long did not respond to the motion, which the District Court granted

and set for hearing. The parties attended the hearing, offered evidence, and the court

awarded DNRC attorney’s fees and costs of $15,303.75 in its twelve-page Findings of Fact,

Conclusions of Law and Order.



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¶9     Ms. Long argues for error by the District Court in its granting of the Motion to

Withdraw by Ms. Long’s attorney without giving her an opportunity to respond and an abuse

of discretion by the District Court’s Findings of Fact, Conclusions of Law and Order

dismissing her case with prejudice with an award of attorney’s fees and costs.

¶10    As to the issue concerning the order allowing Ms. Long’s attorney to withdraw, Ms.

Long sought no relief from the District Court’s order below and cannot now urge error by the

District Court.

¶11    As to the sanctions for discovery abuses, this Court has urged sanctions over second

chances. Peterman v. Herbalife Int’l., Inc., 2010 MT 142, ¶ 17, 356 Mont. 542, 234 P.3d

898 (citing Linn v. Whitaker, 2007 MT 46, ¶ 19, 336 Mont. 131, 152 P.3d 1282; Xu v.

McLaughlin Research Inst. for Biomedical Sci., Inc., 2005 MT 209, ¶ 20, 328 Mont. 232,

119 P.3d.100); see also Dambrowski v. Champion Intl. Corp., 2000 MT 149, 300 Mont. 76,

3 P.3d 617.

¶12    We have determined to decide this case pursuant to Section I, Paragraph 3(d), of our

1996 Internal Operating Rules, as amended in 2006, that provide for memorandum opinions.

The District Court’s sanctions are supported by extensive findings that are supported in the

record and are based upon established and settled Montana law. After review of the record,

we hold Ms. Long has failed to establish that the District Court abused its discretion in

dismissing her case with prejudice and assessing attorney’s fees and costs.

¶13    Affirmed.



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                                           /S/ JOHN W. LARSON
                                           Hon. John W. Larson, District Court Judge,
                                           sitting in place of Chief Justice Mike McGrath


We concur:

/S/ PATRICIA COTTER
/S/ JIM RICE
/S/ MICHAEL E WHEAT

/S/ C.B. McNEIL
Hon. C.B. McNeil, District Court Judge,
sitting in place of Justice Brian Morris




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