Opinion
19-P-987
07-09-2020
ASHYKA WIGGINS v. BOSTON PUBLIC HEALTH COMMISSION & others.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009], are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After the plaintiff, Ashyka Wiggins, failed to comply with numerous court orders to participate in her own duly noticed deposition, to adequately respond to discovery requests, and to pay a monetary sanction for prior failure to comply with discovery obligations, the judge, on motion by the defendants, the Boston Public Health Commission and John Townsend, dismissed her claims pursuant to Mass. R. Civ. P. 37 (b) (2) (C), as amended, 390 Mass. 1208 (1984). Wiggins appeals from the April 24, 2019 judgment of dismissal, arguing that the judge abused his discretion. We affirm.
Background. Wiggins was employed as a grants business analyst in the finance department of the Boston Public Health Commission. Her employment was terminated on November 22, 2013. On November 11, 2016, Wiggins commenced this action, asserting claims of racial and gender discrimination, wrongful termination, retaliation under G. L. c. 149, § 185, and civil rights violations under 42 U.S.C. § 1983.
The defendants served Wiggins with interrogatories and requests for the production of documents on January 17, 2018. Throughout the course of the litigation, Wiggins sought a number of extensions to discovery deadlines, to which the defendants agreed. After about eight months, on September 6, 2018, the defendants filed a motion to compel discovery. On the following day, a judge of the Superior Court allowed the motion without opposition and ordered Wiggins to produce documents responsive to all of the defendants' document requests and to respond to all but one of the defendants' interrogatories (the September 7 order). The judge specifically stated that he would entertain a motion for sanctions if Wiggins failed to substantially comply. Wiggins failed to comply with the order.
On November 2, 2018, the defendants filed a motion for sanctions for failure to comply with the September 7 order, which Wiggins opposed. After a hearing, a different judge of the Superior Court entered an order on November 19, 2018 (November 19 order), requiring Wiggins to respond to the defendants' interrogatories and to produce documents. The judge ordered Wiggins to request documents not in her possession, including tax returns, from third parties and to furnish her Facebook password within fourteen days from the date of the order. The judge also ordered Wiggins to pay $1,012 in costs and fees in connection with the motion for sanctions. At this juncture, the judge declined the defendants' request for dismissal on the grounds that Wiggins had not previously been warned that dismissal could result from her various failures and because the court found that the monetary sanction would suffice to compel compliance. However, the judge stated that failure to comply could "result in dismissal of her case." On January 29, 2019, the defendants filed a second motion to dismiss based on Wiggins's failure to comply with the November 19 order.
Meanwhile, the defendants attempted to obtain Wiggins's participation in a deposition. After Wiggins failed to appear for her sixth re-noticed deposition on January 7, 2019, she moved for a protective order seeking that the location of her deposition be changed. This request was denied on January 11, 2019 (January 11 order), by the same judge who had previously issued the September 7 order. In addition, the judge required Wiggins to appear for her deposition at an agreeable location within fourteen days. The judge warned that a renewed motion to dismiss would be entertained "should [Wiggins's] evident failure to honor her discovery obligations persist." The defendants re-noticed Wiggins's deposition for January 29, 2019, at a location of her choosing, but she again failed to appear. On January 31, 2019, the defendants filed a third motion to dismiss based on Wiggins's failure to appear for her seventh re-noticed deposition as required by the January 11 order.
The judge scheduled a hearing on the defendants' second and third motions to dismiss. In the order scheduling the hearing, the judge stated that Wiggins would be required to "show cause why the action should not be dismissed for repeated failure to comply with discovery obligations and court orders." At the hearing, Wiggins's counsel conceded that Wiggins had failed to comply with the November 19 and January 11 orders. Counsel explained that Wiggins "did not agree" with the November 19 order and "believed that it was an invasion of privacy." In addition he claimed that Wiggins was late for her deposition and upon arriving could not find parking.
The judge allowed the defendants' second and third motions to dismiss. The judge found that "Wiggins'[s] repeated and blatant refusal to comply with clear and unambiguous Court orders was knowing, willful, and in bad faith." He further found that "Wiggins'[s] refusal was contemptuous and in utter disregard of the Court's repeated warnings that dismissal would result from failure to comply." The judge pointed out that Wiggins conceded that she did not comply with the November 19 order to produce documents and pay a monetary sanction only because she disagreed with it and not because she was unable to do so. This appeal followed.
Discussion. "Our review of discovery sanctions, including defaults, is governed by the well-established abuse of discretion standard." Short v. Marinas USA Ltd. Partnership, 78 Mass. App. Ct. 848, 852 (2011).
We discern no abuse of discretion in the judge's dismissal of Wiggins's claims. When Wiggins acted contrary to the judge's discovery orders, which clearly and repeatedly warned her that dismissal might be ordered as a sanction for noncompliance, she acted at her own peril. As the judge found, Wiggins had a long pattern of failures to comply with her obligations to produce documents, even when ordered to do so. Wiggins admitted that the only reason for her failure was her own disagreement with the judge's order compelling her to produce documents. In addition, she continued to refuse to produce documents even after receiving a lesser sanction in the form of a monetary penalty. Wiggins's conduct thus supported the judge's conclusion that her failure to comply with the November 19 order was knowing, willful, and in bad faith. See Short, 78 Mass. App. Ct. at 852. Given Wiggins's conduct in this proceeding and high degree of willfulness apparent in her refusal to comply with her discovery obligations, the judge acted within his discretion by allowing the second motion to dismiss and dismissing Wiggins's claims under Mass. R. Civ. P. 37 (b).
The judge's analysis focused on Wiggins's failure to produce documents, respond to interrogatories, and pay a monetary sanction in accordance with the November 19 order, the subject of the second motion to dismiss. The judge did not address Wiggins's failure to attend her deposition as addressed in the third motion to dismiss, although he allowed that motion as well. Because Wiggins's willful failure to comply with the November 19 order sufficed to warrant dismissal of the action, we do not address the judge's conclusion on the third motion to dismiss.
Judgment affirmed.
By the Court (Vuono, Milkey & Desmond, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: July 9, 2020.