South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Raymond and Linda Lewis, Charles Knight,Richard A. Lewis, Nancy Taylor, and St. Paul Missionary Baptist Church vs South Carolina Department of Health and Environmental Control and Gary Watson

AGENCY:
South Carolina Department of Health and Environmental Control and Gary Watson

PARTIES:
Petitioners:
Raymond and Linda Lewis, Charles Knight,Richard A. Lewis, Nancy Taylor, and St. Paul Missionary Baptist Church

Respondents:
South Carolina Department of Health and Environmental Control and Gary Watson
 
DOCKET NUMBER:
08-ALJ-07-0382-CC

APPEARANCES:
 

ORDERS:

ORDER OF DISMISSAL

 

BACKGROUND

            On August 22, 2008, the Petitioners, represented by Attorney Christi P. Cox (Cox), filed a Notice of Request for Contested Case Hearing (Notice) with the Administrative Law Court (ALC or Court).  In the cover letter to the Notice, Cox stated she was filing the Petition on behalf of Raymond and Linda Lewis, individually and as representatives for other concerned residents, including Charles Knight, Richard A. Lewis, Nancy Taylor, and St. Paul’s Missionary Baptist Church.  On August 28, 2008, this matter was assigned to the Honorable Carolyn C. Matthews.  Respondent South Carolina Department of Health and Environmental Control (DHEC) submitted its Agency Information Sheet and Notice of Appearance to the Court on September 8, 2008, and on September 17, 2008, the McNair Law Firm, P.A. (McNair) filed a Notice of Appearance on behalf of Respondent Gary Watson, d/b/a Watson Turkey (Watson).  

            On October 6, 2008, Judge Matthews issued the Court’s Order for Prehearing Statements. The Court amended its Order on October 15, 2008, and ordered the parties to file Prehearing Statements within 15 days of the date of the Amended Order.  Cox filed Prehearing Statements for all Petitioners on November 3, 2008. 

            On December 2, 2008, Cox called McNair and informed counsel that Petitioners failed to return phone calls or otherwise respond to her numerous requests for information sufficient to move forward with the contested case.  Respondent Watson filed a Motion to Dismiss on December 31, 2008.

            On December 16, 2008, Cox filed a Motion to be Relieved as Counsel with the Court.  Cox was relieved as Counsel by Order dated January 21, 2009.  This Order further informed Petitioners that they must notify the Court within fifteen (15) days on how they wished to proceed in this matter.  The Order also required Counsel for Watson serve the Motion to Dismiss on all Petitioners, individually.  The Court has received no responses from the Petitioners.

 

DISCUSSION

            Rule 23(A) of the Administrative Law Court’s Rules of Procedure allows the Administrative Law Judge to dismiss a contested case when a party fails to prosecute the contested case.  The non-defaulting party may move for an order dismissing the case with prejudice.  In addition to dismissing a case for default under Rule 23(A), the Court may dismiss a contested case “for failure to comply with any of the rules of procedure for contested cases, including the failure to comply with any of the time limits provided by this section.”  ALC Rule 23.B.  The chronology of this case, the Exhibits, and the documents filed with the Court demonstrate that the Petitioners are not prosecuting this case and have not complied with the time limits to respond to discovery in ALC Rule 21, and Rule 33, SCRCP.[1]   

            Instead of filing answers to the interrogatories on December 16, 2008, Cox filed a Motion to be Relieved as Counsel, citing Petitioners’ failure to respond to her repeated requests for information and her inability to make contact with or otherwise communicate with her clients.  In addition to failing to answer the interrogatories within the time limit of Rule 33(a), SCRCP (as extended by agreement of counsel), Petitioners have failed to complete discovery within the 90 day period of Rule 21 of the ALC Rules.  The failure to complete discovery within 90 days was not the fault of Watson; counsel for Watson has taken diligent steps in an attempt to comply with Rule 21.  Petitioners’ failures have prejudiced Watson by preventing Watson from obtaining information necessary to make document requests and take depositions within the Court imposed time limit for discovery and allowing this case to proceed in a timely manner.

 

            Because ALC Rule 21 incorporates SCRCP Rule 37, Petitioners contested case must also be dismissed for abuse of discovery.  Watson is prejudiced by Petitioners’ refusal to answer discovery requests.

            Pursuant to the ALC Rules, discovery in contested cases, “shall be conducted according to the procedures in rules 26-37, SCRCP . . .” ALC Rule 21.  Rule 37(d), SCRCP states, in part, this Court may dismiss any claim where discovery rules are violated:

            If a party fails . . .  (2) to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories . . . , the court in which the action is pending on motion may makes such orders in regard to the failure as are just, and among others it may take any action authorized under paragraphs (A), (B), (C) of subdivision (b)(2) of this rule.

            Rule 37(d), SCRCP.

 

Paragraph (C) of subdivision (b)(2) allows the Court to issue an order, “[s]triking 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 judgment by default against the disobedient party.” Rule 37(b)(2)(C), SCRCP (emphasis added).  Pursuant to and through ALC Rule 21, this Court has ordered “[d]iscovery shall be available . . . as provided under these rules.”

            While selection of a particular sanction is within the Court’s discretion, the South Carolina Supreme Court has held dismissal is appropriate where a party disregards rules of the Court with respect to discovery and generally exercises willful disobedience of the discovery process.  See, Barnette v. Adams Bros. Logging, Inc. et. al., 355 S.C. 588, 586 S.E. 2d 572, 576 (2003).  In Barnette, the Supreme Court upheld the trial court’s dismissal of a plaintiff’s causes of action where she failed to authorize release of documents requested by defendants through interrogatories and requests for production.  Id.

            As in Barnett, dismissal of the Petitioners’ causes of action in this case is appropriate based on the following:

            1.  ALC Rule 21 prescribes discovery shall be completed by a date certain in order to procure the fairness and integrity of the trial preparation process;

            2.  Petitioners have not answered interrogatories despite being granted numerous extensions by Respondent and thereby have prevented Respondent’s discovery into the Petitioners’ case and depositions of appropriate witnesses;

            3.  Petitioners’ disobedience is willful:

·             As stated in the Prehearing Statements, Petitioners intent was to retain counsel only to file the Petition, acknowledging that from the outset they did not intend for counsel to participate in the discovery process;

·             Despite repeated urging of their own counsel, Petitioners refused to communicate with counsel, preventing counsel’s compliance with Court rules related to providing discovery to opposing counsel, and Cox has introduced no facts indicating Petitioners’ refusal is due to any reason other than a willful intent to violate this Court’s rules and to thwart the discovery process available to Watson;

·             Petitioners’ counsel now seeks relief from representation, acknowledging an inability to prosecute Petitioners’ case.

            Dismissal is the proper sanction where, due to Petitioners’ willful conduct, Petitioners’ and Respondent’s counsel are unable to proceed with adjudication of the case on its merits.

 

ORDER

            The Petitioners have not taken any actions to prosecute this case beyond filing their Request for Contested Case Hearing on August 22, 2008.  Watson has diligently sought discovery from Petitioners to no avail.  The latest filing by Cox asking to be relieved as counsel in this case provides evidence the Petitioners are not communicating with their counsel. Therefore,

            IT IS HEREBY ORDERED THAT this action is dismissed pursuant to Rule 23 of the ALC Rules of Procedure for failure to prosecute and failure to comply with the time limits as well as ALC Rule 37 for failure to serve answers to interrogatories.

            AND IT IS SO ORDERED.

 

                                                                                               

                                                                                                _______________________________________

                                                                        Carolyn C. Matthews

                                                                        Administrative Law Judge                

 

April 17, 2009



[1] Rule 33, SCRCP, is applicable in this case under ALC Rule 68.

 


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