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White v. State ex rel Wyoming Dep't of Transportation

July 10, 2009

WESLEY M. WHITE AND CAROLE A. KENNEY, APPELLANTS (PLAINTIFFS),
v.
STATE OF WYOMING, EX REL., THE WYOMING DEPARTMENT OF TRANSPORTATION AND HAROLD DWAIN CAREY, APPELLEES (DEFENDANTS).



Appeal from the District Court of Laramie County, The Honorable Michael K. Davis, Judge.

The opinion of the court was delivered by: Burke, Justice.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

[¶1] Appellants, Wesley White and Carole Kenney, challenge the district court's order dismissing their complaint pursuant to W.R.C.P. 37(b)(2)*fn1 as a sanction for their failure to comply with two orders compelling discovery. We affirm.

ISSUE

[¶2] Did the district court abuse its discretion when it dismissed Appellants' cause of action pursuant to W.R.C.P. 37(b)(2)?

FACTS

[¶3] On July 10, 2006, Appellants filed their complaint. They sought damages for personal injuries incurred as a result of a motor vehicle collision allegedly caused by Mr. Carey's negligence. They alleged that, at the time of the collision, Mr. Carey was acting in the course and scope of his employment as a snowplow operator for the State of Wyoming. On December 12, 2006, the district court entered a scheduling order requiring that discovery be completed no later than 10 days prior to trial. Two days later, the court set the case for trial on April 10, 2007. Shortly thereafter, the court entered a Stipulated Scheduling Order providing that "discovery shall be completed by April 1, 2007." On March 9, 2007, the district court entered an order rescheduling the trial for June 18. The April 1, 2007 discovery cut-off date remained in effect.

[¶4] On April 2, Appellees filed Defendants' Motion for Order Compelling Discovery. They alleged that they had served Appellants with interrogatories and requests for production on February 16 and that Appellants had failed to respond to the discovery requests. Appellants did not respond to the motion. The district court granted the motion and ordered that Appellants provide discovery responses no later than April 13. The court also ordered Appellants to reimburse Appellees for costs incurred in filing the motion to compel discovery. The order warned that "[f]ailure to comply with this Order may result in a dismissal of this action."

[¶5] On May 14, Appellees filed Defendants' Motion to Dismiss Complaint. In the motion, Appellees alleged that Appellants still had not complied with Appellees' discovery requests, and asked the court to impose sanctions, including dismissal of Appellants' complaint with prejudice. Appellees included as attachments excerpts from Appellants' depositions. In response to questions regarding the reason for the failure to provide discovery responses, Mr. White stated in his deposition:

I now work out in Grover, Colorado. I drive back and forth every day working from 7:00 in the morning until 5:30 at night. My travel time starts at 6:00 a.m., and I don't get home until around 6:30 every evening Monday through Saturday.

So that right now has been keeping me from getting the information. I'm trying to balance a lot of things right now, but basically get some money in the door so I can live. So I apologize for not getting that in. I apologize to the Court and everybody else on that. I'm really trying hard to cover all bases.

Ms. Kenney's deposition contained the following exchange:

Q: [By Appellees' Counsel] And there was a number of interrogatories, written answers, that you needed to ...


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