Cutter v. Brooks

ARNOLD, Judge. G.S. 1A-1, Rule 37(d) reads in pertinent part: “If a party . . . fails ... to appear before the person who is to take his deposition, after being served with a proper notice . . . the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under subsection a, b, and c of sub-section (b)(2) of this rule.” We cannot accept defendant’s view that the trial judge abused his discretion in ordering the entry of a default judgment against him because there was no evidence that defendant had failed to appear for his deposition. Plaintiff’s Rule 37(d) motion, which was uncontroverted, clearly alleged that defendant had failed to appear for the pretrial discovery. Defendant, who had postponed the first hearing on the motion, was not present at the second scheduled hearing and, as far as the record reveals, offered, through his attorney, no denial of plaintiff’s allegations, and no explanation for his failure to appear for the depositions. Furthermore, the trial judge did not abuse his discretion by ordering the default judgment without finding that defendant Brooks had wilfully failed to appear at his deposition. The 1975 amendment to Rule 37(d) omitted the requirement that sanctions be leveled against a party who failed to respond to pretrial discovery “without good cause.” The comment to Rule 37(d) states: “The resulting flexibility as to sanctions eliminates any need to retain the requirement that the failure to appear or respond be ‘willful.’ The concept of ‘willful failure’ is at best subtle and difficult, and the cases do not supply a bright line. [268] Many courts have imposed sanctions without referring to willfullness. In addition, in view of the possibility of light sanctions, even a negligent failure should come within Rule 37(d).” Whether such extreme sanctions as are authorized by Rule 37(d) should be imposed obviously must be determined from the circumstances of each case. Based upon the record before us in this appeal we do not find abuse in the trial court’s exercise of discretion. (See also Wright & Miller, Federal Practice and Procedure: Civil § 2291.) The order granting default judgment is, therefore, Affirmed. Judges Morris and Martin concur.