Discovery: Pope-Gonzalez v. Husker Concrete, LLC, 21 Neb. App. 575 (2013)

Issue: Whether a trial court abused its discretion in determining dismissal of an action was an appropriate discovery sanction based on the Plaintiff’s noncompliance with discovery orders.

Facts: Plaintiff, a pro se litigant, filed a complaint against Defendant Husker Concrete in November 2008. Plaintiff failed to disclose any expert witnesses and the district court granted summary judgment in favor of Husker Concrete. On appeal, the Nebraska Court of Appeals remanded the case back to the district court.

On remand, the district court held a status conference and set a new discovery deadline more than ninety days in advance with a pretrial conference a month afterwards. Plaintiff filed a motion to extend the discovery deadline on the date it was due. At the pretrial conference date, the court granted Plaintiff an additional sixty days to complete discovery and specifically told Plaintiff that she would be subject to sanctions for failure to comply with her discovery and disclosure obligations. Plaintiff failed to comply and Husker Concrete moved for sanctions. Plaintiff did not appear at the hearing for Husker Concrete’s motion for sanctions and the court granted a default judgment in favor of Husker Concrete dismissing Plaintiff’s case. Plaintiff filed a motion to set aside the sanction stating a variety of reasons including she did not have notice of the hearing, she had been ill, she was a pro se litigant, and the sanction was “overly harsh.” The court denied Plaintiff’s motion and Plaintiff appealed.

Holding: The Nebraska Court of Appeals affirmed the district court’s order finding that the court did not abuse its discretion in dismissing Plaintiff’s case as a discovery sanction as the sanction was appropriate under the circumstances. The NCA relied on the facts that the record showed Husker Concrete mailed notice of the hearing, Plaintiff acknowledged that the additional sixty days would be sufficient to complete discovery, Plaintiff demonstrated little evidence on how her health affected her ability to complete discovery, and Plaintiff repeatedly failed to respond to discovery requests. Further, the NCA noted that a pro se litigant is held to the same standards as a litigant who is represented by counsel.

For a complete copy of the Court’s opinion, click here