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                                                                 No. 98-531



                               IN THE SUPREME COURT OF THE STATE OF MONTANA



                                                              1999 MT 119N




MARIUM ROGERS,

Plaintiff and Appellant,

v.

TOWN OF DARBY, MONTANA,

Defendant and Respondent.




APPEAL FROM: District Court of the Twenty-First Judicial District,

In and for the County of Ravalli,

The Honorable Jeffrey H. Langton, Judge presiding.




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COUNSEL OF RECORD:



For Appellant:



Matthew J. Sisler, Missoula, Montana



For Respondent:



William L. Crowley, Cynthia K. Thiel, Boone, Karlberg & Haddon, Missoula, Montana; Edward A. Murphy,
Datsopoulos, MacDonald & Lind, Missoula, Montana




                                                                                                  Submitted on Briefs: January 7, 1999



Decided: May 28, 1999

Filed:




__________________________________________

Clerk


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Justice William E. Hunt, Sr. delivered the Opinion of the Court.




¶1. Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent but shall be
filed as a public document with the Clerk of the Supreme Court cause number and
result to the State Reporter Publishing Company and to West Group in the quarterly
table of noncitable cases.

¶2. Plaintiff Marium Rogers filed suit in the District Court for the Twenty-First
Judicial District, Ravalli County, against the town of Darby, alleging wrongful
discharge. When the plaintiff failed to adequately respond to requests for discovery,
the defendant filed a motion to compel. On August 4, 1998, the District Court entered
an order granting the motion. In so doing, it found that the plaintiff had caused
inordinate and significant delays in the case by failing to timely and adequately
respond to the defendant's discovery requests. It held that the plaintiff's discovery
responses were clearly inadequate and unresponsive in any meaningful way, and
prevented the defendant from mounting a defense. The District Court reviewed each
interrogatory and request for production of document and specified the information
it expected the plaintiff to provide. It ordered the plaintiff to supplement her
responses in accordance with its order within 15 days. The court also sanctioned the
plaintiff by awarding costs and fees incurred by the defendant in filing its motion to
compel. Additionally, the District Court warned the plaintiff that if she did not
comply with its order, it would impose further sanctions, including dismissal of the
entire complaint.

¶3. Late in the day on August 20, 1998, the plaintiff delivered a stack of documents to
the defendant. On August 24, 1998, the plaintiff filed with the District Court, via
facsimile, a different set of documents entitled supplemental discovery answers. The
defendant claims that these supplemental responses also failed to comply with the
District Court's August 4 order.

¶4. On August 25, 1998, the District Court entered an order dismissing the plaintiff's
case. With regard to the stack of documents delivered to the defendant on August 20,

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the court stated:

The discovery consists of two inches of photocopied documents. None of the documents
are identified as responsive to particular discovery requests. Several of the documents are
unintelligible either due to poor copy quality or because portions of the documents were
cut off. The documents are, on the whole, a disorganized mishmash apparently thrown
together at the last minute. They are wholly unresponsive to the specific requests made by
the Defendant and are utterly non-compliant with the Court's Order of August 4.

¶5. The court concluded that due to the plaintiff's counsel, the case had "inched
along since its inception," and that the plaintiff was either unable or unwilling to
comply with its August 4 order. It accordingly imposed Rule 37, M.R.Civ.P.,
sanctions and dismissed the case in its entirety.

¶6. Subsequently, on August 26, 1998, the District Court entered an amended order
further noting that the discovery responses filed on August 24 were tardy. It noted
that its August 4 order was filed on August 5, and that the responses were therefore
due on August 20. The plaintiff had misapplied the Rule 6, M.R.Civ.P., 3-day mailing
rule, because she did not mail her responses. The District Court then reaffirmed its
earlier order dismissing the case in its entirety. The plaintiff now appeals.

¶7. The plaintiff contends that the District Court abused its discretion by imposing
the most severe sanction possible under Rule 37, M.R.Civ.P. She argues that the
failure to comply with the court's order was based upon a simple misunderstanding
of Rule 6, M.R.Civ.P., and that the ultimate sanction, dismissal of the lawsuit, was
not warranted. We disagree.

¶8. As the plaintiff concedes, we review the District Court's decision to determine
whether it abused its discretion. We thus defer to the District Court's decision. As we
have stated:

This Court has addressed the imposition of Rule 37, M.R.Civ.P., sanctions several times in
the recent past. The primary thread binding each of those decisions is the deference this
Court gives to the decision of the trial judges. . . . The trial judge is in the best position to
know . . . which parties callously disregard the rights of their opponents and other litigants
seeking their day in court. The trial judge is also in the best position to determine which
sanction is the most appropriate.


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Eisenmenger v. Ethicon, Inc. (1994), 264 Mont. 393, 402-03, 871 P.2d 1313, 1319, cert.
denied, 513 U.S. 919 (citation omitted).

¶9. We do not agree with the plaintiff that the District Court abused its discretion
when it dismissed the suit. Contrary to the plaintiff's contentions, the plaintiff's
transgressions did not amount to a simple misunderstanding of Rule 6, M.R.Civ.P. A
review of the entire record, including the parties' motions and affidavits, clearly
reveals that the plaintiff engaged in dilatory tactics throughout the lawsuit and
completely failed to adequately respond to the defendant's discovery requests.
Indeed, by the time the plaintiff responded on August 20, six months had passed
since the defendant had initially propounded the discovery requests, four months had
passed since the defendant filed its motion to compel, and the time for answering
discovery had passed on the Amended Case Scheduling order.

¶10. The court's frustration with the plaintiff was evident. In its August 4 order, the
court not only ordered sanctions based upon the plaintiff's failure to timely and
adequately respond to the discovery up to that point, but it also warned the plaintiff
that any further failure to abide by its order would result in dismissal. When the
plaintiff failed to abide by the court's order, the court dismissed the case as it had
warned. As we have stated before, the trial court "is in the best position to know . . .
which parties callously disregard the rights of their opponents . . . [and] which
sanction is most appropriate." Eisenmenger, 264 Mont. at 502-03, 871 P.2d at 1319.
We hold that the District Court did not abuse its discretion when it dismissed the
case. Accordingly, we need not reach the defendant's contention that even if the
plaintiff's August 24 responses are considered timely, the plaintiff once again failed
to adequately respond to the discovery requests as ordered.

¶11. The plaintiff filed her notice of appeal by facsimile and mailed a copy to the
defense counsel on August 27, 1998. On August 28, 1998, the defendant filed a motion
in District Court to supplement the record with a memorandum and affidavits
pertaining to a conference call the District Court held on August 26, 1998, and
pertaining to the documents the plaintiff had produced on August 20, 1998. The
defendant wanted to complete the record with regard to matters raised in its earlier
"Notice of Plaintiff's Failure to Comply With Court Order and Request for Dismissal
of Plaintiff's Complaint." The court allowed the defendant to file the documents. The
plaintiff subsequently filed a motion to strike the documents, but the court denied the
plaintiff's motion after noting that it retained jurisdiction over collateral matters.

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¶12. On appeal, the plaintiff contends that the District Court erred when it allowed
the defendant to supplement the record. She contends that supplementation of the
record to take into account circumstances occurring subsequent to the appeal is
impermissible.

¶13. But the memorandum and affidavits filed by the defendant do not concern
circumstances occurring subsequent to the appeal. Rather, they pertain to the
plaintiff's production of documents and represent the argument presented to the
court in the August 26 conference. Rule 9(f), M.R.App.P., authorizes the court to
determine what should be in the record on appeal. We hold that the District Court
did not err by allowing the documents to be filed to facilitate a complete record on
appeal.

¶14. In any event, the heart of this appeal involves the plaintiff's appeal from the
dismissal of the action. The District Court did not abuse it discretion in dismissing
the case, with or without the supplementation of the record. Based upon all the
foregoing, the decision of the District Court is affirmed.

¶15. Affirmed.


/S/ WILLIAM E. HUNT, SR.

We Concur:


/S/ JIM REGNIER

/S/ TERRY N. TRIEWEILER

/S/ KARLA M. GRAY

/S/ W. WILLIAM LEAPHART




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