David W. Cummings v. Devcon Enterprises, Inc. (2012)

RULING ON MOTION FOR JUDGMENT OF DISMISSAL # 391

The plaintiff, David W. Cummings, instituted this action by complaint filed January 14, 2005.   A little more than seven years later, on January 31, 2012, the court, Berger, J., issued the following order (# 347.10):  “[t]he defendants are allowed to depose (either oral or video taped) the plaintiff at a properly scheduled time within the next 90 days.   In the event the plaintiff fails to comply with these orders, the defendants may file motions for dismissal.”   Thereafter, on May 30, 2012, Judge Berger further ordered (# 349.86) that “[t]he deposition of the plaintiff will take place within 90 days ․ In the event that plaintiff's deposition is not commenced or completed within the 90 day time period, the court will consider any request for disciplinary action pursuant to Practice Book sections 13–14 or 14–3.”

Following Judge Berger's May 30, 2012 order, on June 27, 2012, certain defendants, Devcon Enterprises, Inc. (Devcon), Cornfield Associates Limited Partnership (Cornfield), Roland G. Labonte and Anthony T. Bianca, Sr., noticed the plaintiff's deposition for August 16, 2012.   The plaintiff's deposition did not occur as scheduled.   On August 30, 2012, these defendants filed a motion for judgment of dismissal pursuant to Practice Book § 13–14 ¹ based on the plaintiff's failure to comply with the “Court's Second Order concerning attendance at a deposition.”   On September 7, 2012, the plaintiff filed an objection to said motion, dated May 20, 2012, requesting oral argument and asserting that testimony would be required.²  The other defendants in this case, Lawn Master Services, Inc., Lisa Paquette and Middlesex Mutual Assurance Company, also filed similar motions for judgment of dismissal on October 1, 2012 and October 5, 2012, respectively.

A hearing was held on October 11, 2012, at which time the plaintiff was placed under oath and testimony and documentary evidence were received.   Based on the evidence received, together with a stipulation of the parties that “the plaintiff did not attend his deposition,” and a review of the court's file, the court finds the following facts:

1.  The defendants' motion is at least the third motion seeking dismissal of the complaint based on the plaintiff's failure to comply with a court order.

2. Judge Berger's order, dated May 30, 2012, requiring the deposition of the plaintiff within ninety days is clear and unambiguous.

3. The plaintiff understood the court's order and had the ability to comply with the court's order.

4. The plaintiff informed the defendants' counsel of his intention not to attend his duly noticed deposition because the defendants' counsel would not agree in writing to a set of demands unilaterally imposed by the plaintiff.3

5. The plaintiff did not attend his duly noticed deposition and thereby willfully did not comply with an unambiguous court order.   Moreover, the plaintiff has offered no reasonable excuse for his non-compliance with Judge Berger's order.

Therefore, the motion for judgmental of dismissal is granted pursuant to the court's authority under Practice Book §§ 13–14(a)(b)(5).   A judgment of dismissal is entered.

Dubay, J.

FOOTNOTES

FN1. Practice Book § 13–14, in relevant part, provides:(a) If any party ․ has failed to appear and testify at a deposition duly noticed pursuant to this chapter ․ the judicial authority may, on motion, make such order as the ends of justice require.(b) Such orders may include the following ․(5) If the party failing to comply is the plaintiff, the entry of a judgment of dismissal..  FN1. Practice Book § 13–14, in relevant part, provides:(a) If any party ․ has failed to appear and testify at a deposition duly noticed pursuant to this chapter ․ the judicial authority may, on motion, make such order as the ends of justice require.(b) Such orders may include the following ․(5) If the party failing to comply is the plaintiff, the entry of a judgment of dismissal.

FN2. The plaintiff has since filed several other objections to the motions for judgment of dismissal that have been read by the court..  FN2. The plaintiff has since filed several other objections to the motions for judgment of dismissal that have been read by the court.

FN3. The plaintiff sent the letter containing the unilateral demands on or about August 13, 2012, even though the defendants noticed the plaintiff's August 16, 2012 deposition on June 27, 2012.   The plaintiff notified the defendants of his intention not to appear on August 15, 2012..  FN3. The plaintiff sent the letter containing the unilateral demands on or about August 13, 2012, even though the defendants noticed the plaintiff's August 16, 2012 deposition on June 27, 2012.   The plaintiff notified the defendants of his intention not to appear on August 15, 2012.

Dubay, Kevin G., J.