By Michael A. Ross, MS
Miles Washington (Plaintiff) is a former member of the New Mexico State football team. In 2015, he filed a complaint for strict liability and negligence against the National Collegiate Athletic Association (NCAA) (Defendant) and other associated parties claiming that he sustained injuries during football practices ultimately leading to his current medical state of quadriplegia. Based on the inaction and failure to follow procedural etiquette on behalf of the Plaintiff’s counsel, the district court approved the Defendant’s motion of dismissal.
Washington appealed the district court’s dismissal concerning the complaint he filed against the NCAA with prejudice as a sanction in accordance with Rule 1-041(B) NMRA and Rule 1-037 NMRA. Rule 1-041(B) NMRA states,
by filing a stipulation of dismissal signed by all parties who have appeared generally in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed an action based on or including the same claim.
Additionally, for referential purposes, Rule 1-037 NMRA pertains to the failure to make discovery; sanctions. Within the court’s order of dismissal, the district court found and determined that Washington and his counsel “failed to comply and cooperate in discovery” on multiple occasions determined to be in violation of Rule 1-037. Specifically found and detailed in the court’s reasoning, Washington and his counsel recognized to have represented him
(1) failed to attend the noticed deposition of Plaintiff, (2) failed to attend another deposition, (3) failed to respond to written discovery properly served upon Plaintiff, (4) failed to comply with multiple [c]ourt-ordered deadlines, (5) refused to respond to Defendants’ counsel[‘s] numerous attempts to negotiate a deposition schedule, and (6) failed to attend a [c]ourt hearing.
The district court also determined the failure of Washington and his counsel to attend the deposition was a “willful” act, specifically stating that the deposition was properly noticed in time for the Plaintiff and his counsel to acknowledge and attend accordingly. Additionally, referencing the Plaintiff’s failure to rebut the determination set forth by the district court and its order of dismissal being correct, the Appellate Court affirmed the dismissal issued by the district court.
CASE ANAYLSIS AND KEY FACTORS
The court begins their reasoning by stating that as a matter of fact, the Plaintiff and his counsel failed to adequately develop an argument that upheld his assertion requesting the appellate court to reverse the dismissal order granted by the district court. The appellate court references Rule 12-318 (A)(4) NMRA, when highlighting the Plaintiff’s counsel’s failure to comply with procedure and requirement that every brief in chief must include an argument stating the applicable standard of review. The significance of this requirement provides the standard of review as the foundation on which every analysis of issues being brought before an appellate court is built. This standard of review and its significance is highlighted to an even greater degree, as seen within this specific case, when the appellate court must defer to the trial court. Whether the district court abused its discretion or not is the question warranting evaluation by the appellate court in regard to this specific case. Referencing precedential legislation and case law, the court found the Plaintiff failed to recite the differential standard of review or acknowledge in any form that the court may not simply substitute their view for the district court’s. In addition to the briefing deficiency overlooked by the Plaintiff’s counsel, said counsel failed “to comply with the provision of Rule 12-318(A)(4) that requires every brief in chief to include citations to legal authority.” The Plaintiff’s counsel failed to mention either of the provisions of the Rules of Civil Procedure utilized and relied upon by the district court while also failing to cite or discuss any of the precedential opinions stemming from the Supreme Court or the Appellate Court’s interpretation and application toward the relevance of the aforementioned procedural rules. By presenting an argument that fails to be coupled with governing law, the Plaintiff’s counsel is deemed to have failed to present an issue reviewable by the court.
With the Plaintiff’s counsel’s failure to provide the most basic essentials required within a presentable argument for the Appellate Court to consider, the burden essentially has shifted to the court themselves to do the work on behalf of the Plaintiff’s counsel if they wished to proceed. The Appellate Court relied on precedential references established by the Supreme Court to find that there are sound and justifiable reasons for them not to perform those tasks on behalf of the counsel. The following justification and reasoning were specifically provided,
To rule on an inadequately briefed issue, this Court would have to develop the arguments itself, effectively performing the parties’ work for them. This creates a strain on judicial resources and a substantial risk of error. It is of no benefit either to the parties or to future litigants for this Court to promulgate case law based on our own speculation rather than the parties’ carefully considered arguments.
Failing to develop and submit an argument stating a claim of error had occurred, the Plaintiff was unable to carry the burden of rebutting the ordinary appellate presumption that the dismissal issues by the district court was correct. Based on the aforementioned details and precedential references, the court affirmed.
The court further addresses the merit of the claims presented by the Plaintiff’s counsel despite the briefings submitted by said counsel which are again stated to have contained fatal flaws in its entirety. The court states “a willful violation of discovery order may warrant a sanction, such as dismissal with prejudice, that denies the violating party an opportunity to be heard on the merits.” The Plaintiff concedes to this understanding but argued that the district court erred during their conclusion when determining that the Plaintiff’s failure to appear for the deposition was willful. The court notes that “to violate a rule willfully, a party need not have wrongful intent; a conscious or intentional failure to comply suffices.” After further review, it is of the Appellate Court’s opinion that this is the case in the situation; that the Plaintiff and his counsel acted in violation and failure to appear presented components of a conscience or intentional manner. The court notes that one of the California lawyers representing the Plaintiff suggested that the responsibility for the deposition relied on the counsel located in New Mexico, while also making note that this half of the counsel had become unresponsive. This reasoning provided by the Plaintiff’s Counsel was not a component that required consideration on behalf of the district court as a legitimate excuse. The court’s focus was essentially shifted to focus on the arguments and evidence presented which in turn led them to conclude that the Plaintiff and his counsel failing to appear for the deposition was a willful act. Considering this culmination of violations, in addition to the previously stated willful violation, dismissal of the Plaintiff’s complaint with prejudice falls within the justifiable reach of the district court in regard to applicable sanctions that can be imposed under New Mexico law. It is also noted that neither the Plaintiff nor the associated dissent was found to cite any form of legal authority prohibiting dismissal with prejudice under circumstances similar to the ones found here. Insight and additional perspective are reinforced here for enhanced justification toward the opinions being rendered stating that the Appellate Court should be wary to substitute their judgement based on the cold record for that found by the district court who was able to witness the evidence and the actions of all parties involved in a more relevant and real time manner throughout the litigation. The opinion concludes with the following statement, “the question presented is not whether we would have chosen a more moderate sanction, but instead whether the district court chose a sanction that is out of legal or logical bounds.” The court was found to have not done such in the opinion of the Appellate Court.
Judge Henderson provided a dissenting opinion toward the matter and findings, but based on the aforementioned information and procedural inadequacies presented throughout this case the Appellate Court’s verdict was found to affirm the dismissal issued by the district court.
CONCLUSION
Based on the inadequate actions and information taken and provided by the Plaintiff’s counsel, the Appellate Court erred to the judgement rendered by the district court when it dismissed with prejudice. Whether the Plaintiff’s counsel failed to effectively communicate the required information within their own party or not, there is a blatant amount of evidence that fails to abide by the appropriate means to move forward with an appeal as sought after by the Plaintiff. Failing to abide by such established procedures and protocols raises the question of effort, commitment toward the Plaintiff, and organizational skillsets with mild considerations of competency at times. Similar to many areas in business and life, there are formalities and guidelines that must be adhered to before further and deeper action or considerations can be carried out. This case displays the outcome when those formalities and guidelines are not given the attention to detail deserved to further any points that may have carried merit in favor of the Plaintiff.
References
Rule 1-041 – Dismissal of actions, N.M. R. Civ. P. Dist. Ct. 1-041
Washington v. Bd. of Regents of N.M. State Univ., No. A-1-CA-37913
Michael A. Ross is the Department Chair and an Assistant Professor of Sport Management at Shorter University and a PhD student at Troy University specializing in research related to youth sport studies, leadership, sport law, social media policies and procedures within athletics, and participation motivations in sport and recreation.
