LINARDON v. NOKE (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff, Kelechi Linardon, appeals from the dismissal of her defamation action based on her failure to comply with discovery requests and orders. We affirm.

Linardon initiated this action in the Superior Court in May 2015. In October 2016, a judge granted defendant Eddie Noke's special motion to dismiss the complaint under the Strategic Litigation Against Public Participation statute, G. L. c. 231, § 59H (anti-SLAPP statute).² The Linardon appealed, and in December 2017 a panel of this court affirmed the dismissal of all claims except those based on “Noke's alleged statements to the neighbor.” Linardon v. Noke, 92 Mass. App. Ct. 1119 (2017).³ On remand, Linardon filed an amended complaint alleging that Noke “published false and defamatory statements regarding the plaintiff” to the neighbor, Elizabeth Zanca, damaging Linardon's reputation in the community and causing her to suffer “traumatic damages, embarrassment, public humiliation” and “emotional distress.” She claimed damages in the amount of $5 million.

Noke served Linardon with a set of interrogatories, a request for the production of documents, and a notice of deposition. Linardon at first refused to answer any interrogatories, but later amended her response to include perfunctory answers to two of the twenty interrogatory questions. She refused to produce any documents, and she did not attend her deposition.⁴

Noke filed a motion to dismiss the complaint as a sanction for Linardon's refusal to comply with discovery or, in the alternative, to compel discovery. The judge who acted on this motion declined to dismiss the complaint, but allowed the motion to compel. When Linardon still did not comply with discovery, Noke filed another motion to impose the sanction of dismissal. After a hearing, a different judge allowed the motion and dismissed the case. Linardon timely filed a notice of appeal.

“A judge has wide latitude to ‘make such orders in regard to the failure [to comply with a discovery order] as are just.’ ” Atlas Tack Corp. v. Donabed, 47 Mass. App. Ct. 221, 224 (1999), quoting Mass. R. Civ. P. 37 (b) (2), as amended, 390 Mass. 1208 (1984). Although willful noncompliance is not required for a judge to issue sanctions under rule 37 (b) (2), see Greenleaf v. Massachusetts Bay Transp. Auth., 22 Mass. App. Ct. 426, 430 (1986), “we generally require that the extreme sanction of dismissal or default judgment be predicated on a finding of wilfulness or bad faith.” Keene v. Brigham & Women's Hosp., Inc., 439 Mass. 223, 235-236 (2003). We review a judge's decision to issue discovery sanctions for abuse of discretion. Greenleaf, supra at 429. “Findings of fact and conclusions of law are unnecessary for our review of the allowance of a motion pursuant to Mass. R. Civ. P. 37 (b).” Atlas Tack Corp., supra.

The rules of civil procedure permit broad discovery of “any matter, not privileged, which is relevant to the subject matter involved in the pending action.” Mass. R. Civ. P. 26 (b) (1), 365 Mass. 772 (1974). “It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Id. Noke repeatedly tried to obtain relevant discovery, eventually resorting to motions to compel and motions for sanctions. Linardon had ample opportunity to comply, but instead blatantly and inexcusably disregarded legitimate discovery requests and a court order. The second judge did not err in finding that Linardon's failure to comply with her discovery obligations was willful and intentional. We discern no abuse of discretion in the second judge's determination that dismissal was a proportional and appropriate remedy for the Linardon's discovery violations.⁵

Noke requests appellate attorney's fees and costs in her brief on the ground that Linardon's appeal is frivolous. See Mass. R. A. P. 16 (a) (10), as appearing in 481 Mass. 1630 (2019); Mass. R. A. P. 25, as appearing in 481 Mass. 1654 (2019). We agree. In accordance with the procedure described in Fabre v. Walton, 441 Mass. 9, 10-11 (2004), Noke may file an application for fees and costs, with any appropriate supporting materials, within fourteen days of the date of this decision. Linardon may file a written opposition within fourteen days thereafter.

Judgment affirmed.

FOOTNOTES

2.   After Noke prevailed on the special motion in the Superior Court, on January 6, 2017, she filed a package under Rule 9A of the Rules of the Superior Court (2016), including a motion for recovery of attorney's fees and costs associated with the special motion, as authorized by the anti-SLAPP statute, together with Linardon's opposition. Following the entry of final judgment in December 2018 and Linardon's filing of her notice of appeal, but before the record was assembled or the case was docketed in this court, a different judge acted on the long-pending motion for fees (Paper No. 28) and, in an order entered on February 14, 2019, allowed fees and costs in the amount of $10,118.93. The judge ordered that the fee award be added to the judgment.

3.   The panel also granted Noke's request for appellate attorney's fees under the anti-SLAPP statute in the amount of $7,087.50.

4.   Linardon attempted to file a motion for a protective order to excuse her from attending the deposition, but the motion was denied without prejudice for failure to comply with rule 9A. Linardon did not refile the motion.

5.   In her brief, Linardon also takes issue with the award of attorney's fees, see note 1, supra, claiming that she had no notice of Noke's motion, and that it did not comply with rule 9A. The docket entries for January 6, 2017, belie these claims.