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Dighans v. Nordstrom11/14/2000
Dighans's counsel stated in his declaration that Mr. Dighans was frequently unavailable to provide discovery materials, but did supply the discovery materials before the dismissal order was entered. The requested material was sent to Nordstrom's counsel and fax and e-mail notice of the discovery was also sent. However, according to Mr. Dighans's counsel, the order had apparently already been sent by mail to the court, and was entered by the court despite Mr. Dighans having complied with the discovery order (albeit untimely).
Nordstrom's counsel responded in his declaration that on December 2, 1998, at or about 9:30 a.m., Nordstrom presented the order of dismissal to the court and the court entered the order. A conformed copy was obtained and counsel returned to the office by 11:30 a.m. In late afternoon on December 2, the representative of Mr. Dighans's counsel telephoned Nordstrom's counsel and indicated he was mailing some of the discovery responses that day. Mr. Dighans thus did not supply the requested discovery before the order was entered. Nordstrom sent Mr. Dighans's counsel a copy of the order of dismissal on December 3, 1998. Nothing further was heard from Mr. Dighans until September 17, 1999, when he filed the motion to vacate. Moreover, Mr. Dighans was present for his own deposition in May 1998, six months after entry of the order compelling discovery.
It is thus apparent from the record that Mr. Dighans violated the court's November 7, 1997 order on motion to compel and also did not supply the discovery materials before the dismissal order was entered. And Mr. Dighans was at least available to his counsel during the time of his deposition in May 1998. Under the circumstances, the court was well within its discretion to reject Mr. Dighans's claim of excusable neglect. Delaney, 84 Wn. App. at 508; see also C.K.S. Engineers, Inc. v. White Mountain Gypsum Co., 726 F.2d 1202, 1208-09 (7th Cir. 1984) (court did not abuse its discretion in denying motion to vacate when asserted reason was problems in communication and cooperation between defendant and his attorney, but actual cause of default was failure to meet deadline for responding to interrogatories); Torockio v. Chamberlain Mfg., Co., 56 F.R.D. 82, 84-87 (W.D. Pa. 1972) (plaintiff's failure to provide attorney with certain information deemed intentional and was not ground for relief under Fed. R. Civ. P. 60(b)), aff'd, 474 F.2d 1340 (3rd Cir. 1973).
Applying the remaining White v. Holm factors, the court had before it information that Mr. Dighans waited 9- months to move to vacate the order of dismissal despite Nordstrom's sending a conformed copy to Mr. Dighans's counsel on December 3, 1998--the day after the order was entered. And Nordstrom's defense was prejudiced not only by belated receipt of the tax information relevant to Mr. Dighans's claim for lost wages, but also by the fact Nordstrom no longer had the chair at issue some 9- months after the case had been dismissed.
The court did not abuse its discretion in denying Mr. Dighans's CR 60(b) motion to vacate the order of dismissal. Griggs, 92 Wn.2d at 582.
Affirmed.
The court has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
Frank L. Kurtz Chief Judge
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