search the entire site.
or go to the recent opinions, or the chronological or subject indices.
Arbelovsky v. Ebasco (8/9/96), 922 P 2d 225
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the
attention of the Clerk of the Appellate Courts, 303 K Street,
Anchorage, Alaska 99501, phone (907) 264-0607, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
FRANK ARBELOVSKY and )
CHRIS GARCIA, ) Supreme Court No. S-6869
Appellants, ) Superior Court No.
) 3KN-93-851 Civil
) O P I N I O N
EBASCO SERVICES, INC., )
EBASCO CONSTRUCTORS, INC., ) [No. 4382 - August 9, 1996]
LOSINGER USA, INC., and )
ENSERCH ALASKA CONSTRUCTION, )
INC., individually and )
collectively, d/b/a ENSERCH )
CONSTRUCTORS, J.V., and )
CITY ELECTRIC, INC., )
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Kenai,
Jonathan H. Link, Judge.
Appearances: Robert C. Erwin and Roberta C.
Erwin, Law Offices of Robert C. Erwin, and
Richard B. Collins, Anchorage, for Appellants.
Michael W. Sewright, Burr, Pease & Kurtz,
Anchorage, for Appellee Enserch Constructors,
J.V. Cynthia L. Ducey and Andrew Guidi,
Delaney, Wiles, Hayes, Gerety & Ellis, Inc.,
Anchorage, for Appellee City Electric, Inc.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Justices, and Shortell, Justice, pro
tem. [Eastaugh, Justice, not participating.]
SHORTELL, Justice pro tem.
In this appeal, we are called upon to determine whether
the trial court abused its discretion in ordering Arbelovsky's and
Garcia's case dismissed with prejudice. We reverse.
I. FACTS AND PROCEEDINGS
On February 4, 1991, plaintiffs Frank Arbelovsky and
Chris Garcia (the plaintiffs) filed a lawsuit against City
Electric, Inc. (City Electric) and a group of defendants that
consists of Ebasco Services, Inc., Ebasco Constructors, Inc., and
Enserch Constructors, J.V. (ECJV) (City Electric and ECJV are
referred to collectively as "the defendants"). ECJV was served in
March 1991. ECJV answered the complaint on April 17, 1991. Two
and one-half years later, on July 2, 1993, the plaintiffs served
the complaint and summons on City Electric. City Electric moved to
dismiss the suit under Civil Rule 41(e) for failure to prosecute
because more than one year had passed "without any proceedings
having been taken." On August 11, 1993, the superior court
dismissed the lawsuit without prejudice. Prior to becoming aware
of the court's August 11 dismissal without prejudice, ECJV filed a
motion for dismissal with prejudice. On August 20, 1993, the
plaintiffs refiled their lawsuit against the defendants. City
Electric joined ECJV's motion to dismiss with prejudice on August
27, 1993. The superior court denied this motion as moot in light
of the August dismissal without prejudice. However, the court
noted that the defendants could raise their claim for dismissal
with prejudice in the case refiled on August 20.
They did not do so. Instead, City Electric and ECJV both
filed motions for awards of costs and attorneys' fees as a
precondition to the plaintiffs continuing their second lawsuit. On
May 11, 1994, the superior court issued two orders granting both
motions for fees and costs. The court ordered the plaintiffs to
pay $2,856.14 in costs and attorneys' fees to City Electric and
$2,925.00 to ECJV as a condition of maintaining the suit. Each
order required the plaintiffs to pay within thirty days or the case
would be dismissed with prejudice. Payment was due on June 10,
1994. On May 19, 1994, the plaintiffs served a motion asking the
court to reconsider its May 11, 1994 orders. Denial of this motion
was entered on June 6, 1994, but not mailed by the court until June
Perhaps due to a mistaken belief that their motion for
reconsideration automatically stayed the order to pay costs and
fees, the plaintiffs did not mail payment until June 23, 1994, and
defendants did not receive it until June 27, 1994. Thus, payment
was tendered thirteen days after the June 10 due date.
On June 22, 1994, ECJV filed a motion to dismiss with
prejudice for failure to obey the court's order to pay fees and
costs. City Electric joined the motion. These motions to dismiss
were based solely on the failure to pay costs and fees in a timely
manner. (EN1) The next day, June 23, 1994, the plaintiffs filed an
opposition to the motions, arguing that their May 19 motion for
reconsideration stayed the May 11 orders and that they had made
payment immediately after reconsideration was denied.
On June 30, 1994, the court (apparently prematurely)
denied the motion to dismiss. On July 7, the plaintiffs filed an
additional opposition to the motion. The defendants subsequently
moved for reconsideration of the denial of the motion. The court
granted reconsideration on July 29, 1994, and vacated its June 30
order. The court scheduled oral argument on the motions to dismiss
for September 22, 1994.
Counsel for the plaintiffs did not appear at the
September 22 hearing. The court attempted to contact plaintiffs'
counsel at his office, but received only an outdated message.
After proceeding with oral argument in the absence of the
plaintiffs' counsel, Judge Link granted the pending motions.
Judge Link expressed frustration with the fact that his
orders had not been followed in a timely manner. He noted that the
sanctions he had imposed for failure to prosecute should have
warned the plaintiffs to pay particular attention to the case. He
expressed concerns about the ability of the defendants to litigate
the case because of the time that had passed since the case was
filed and said that he thought that sanctions short of dismissal
with prejudice would not be sufficient to make up for the injuries
suffered by the defendants. He dismissed the case with prejudice.
A trial court's decision to dismiss a case with prejudice
is evaluated under the abuse of discretion standard of review.
Power Constructors, Inc. v. Acres Am., 811 P.2d 1052, 1054 (Alaska
1991). Under the abuse of discretion standard, the trial court's
decision will only be overturned if this court has "a definite and
firm conviction that the judge made a mistake." City of Kenai v.
Ferguson, 732 P.2d 184, 190 (Alaska 1987).
A trial court's discretion to order litigation-ending
sanctions is severely limited, whether the dismissal is requested
as a discovery sanction under Civil Rule 37, or for non-compliance
with court orders pursuant to Civil Rule 41(b), or as a result of
a litigant's failure to prosecute a claim as required by Civil Rule
41(e). There must be "willful noncompliance"with court orders,
(EN2) or "extreme circumstances,"(EN3) or "gross violations"of
the Rules. (EN4) The record must also "clearly indicate a
reasonable exploration of possible and meaningful alternatives to
dismissal." Power Constructors, 811 P.2d at 1055. Exploration of
alternative sanctions will not be assumed if the record is
inadequate, nor will conclusory rejection of all sanctions short of
dismissal be accepted as a reasonable exploration of meaningful
alternatives. Hughes, 875 P.2d at 753. If meaningful alternative
sanctions are available, the trial court must ordinarily impose
these lesser sanctions rather than a dismissal with prejudice.
Power Constructors, 811 P.2d at 1055, citing Zeller v. Poor, 577
P.2d 695, 697 (Alaska 1978); see also Mely, 409 P.2d at 983
(holding Rule 41(b) sanction of dismissal with prejudice too
Applying these principles to the present case, we
conclude that Judge Link abused his discretion in dismissing this
action with prejudice. The motions before him complained of the
plaintiffs' late payment of approximately $6000 ordered as a
condition to prosecuting their lawsuit. Payment had been made no
more than thirteen days late, immediately after denial of the
plaintiffs' motion for reconsideration of the payment order. Judge
Link did not find non-compliance with his payment order to be
willful and the record would not support such a finding. The
circumstances of the delay fall far short of the requisite willful
non-compliance required to uphold such a drastic sanction. Mely,
409 P.2d at 982 (Alaska 1966).
Judge Link considered more, however, than the minimal
delay in payment in entering his dismissal order. He took into
consideration the history of the case, his prior dismissal without
prejudice, the frustrating, unresponsive conduct of the plaintiffs
and their lawyer, and the defendants' assertions of prejudice
resulting from that conduct. He appears to have expanded the
issues before him to encompass arguments for dismissal with
prejudice raised in prior motions. He decided that alternative
sanctions short of complete dismissal would be inadequate under the
To the extent the dismissal here was ordered based on the
trial court's re-evaluation of arguments made in prior defense
motions, the findings supporting his dismissal order are
problematic for a number of reasons.
First, attorneys' fees to compensate the defendants for
prior dilatory conduct had been deemed adequate sanctions shortly
before the final dismissal order was entered. Although the
defendants complained that these fees were inadequate compensation
under the circumstances, there would seem to be nothing hindering
the trial court from ordering increased monetary sanctions against
the plaintiffs for their latest transgressions, including, perhaps,
compensation for all attorneys' fees reasonably spent on the latest
motions. Further prosecution of the lawsuit could have been
conditioned on payment of those fees.
Second, the passage of time and its effect on the
defendants was the focus of the trial court's concern at the
September 22 hearing. Prior to that hearing, the court had never
found that the passage of time had prejudiced the defendants. The
evidence in support of those assertions was not particularly
strong. ECJV's initial motion to dismiss with prejudice (EN6) was
supported solely by the affidavit of its lawyer. Fairly
summarized, that affidavit stated that ECJV's lawyer had been
informed that the ECJV joint venture had terminated, that one of
the joint venturers had gone out of business, that the offices of
the other joint venturers had relocated out of Alaska, that five of
the employees of the joint venturer no longer worked for any of the
ECJV defendants, that "none of these persons has been interviewed
or contacted"regarding the lawsuit, and that locating joint
venture records as of August 1993 would be "unusually difficult and
City Electric's joinder in the motion did not supplement
ECJV's counsel's affidavit with any additional evidence. Both
motions would have been properly denied on the evidentiary record
that then existed.
No further evidence of prejudice was brought to the
court's attention in any of the defendants' subsequent motions to
dismiss. The only supplementary proof on this issue consisted of
three affidavits submitted in support of ECJV's May 1994 motion for
protective order. Two of these affidavits were signed by ex-
employees of ECJV; they described with more particularity the
expense and difficulty of finding records from the project and
locating its prior employees. Significantly, neither of these
affidavits actually said that any particular employee could not be
located after diligent efforts had been attempted. The third
affidavit was signed by ECJV's lawyer. It set out at greater
length his previous affidavit's assertions of difficulty and
expense of locating pertinent ECJV documents and identifying those
that were discoverable.
The proof available to the court on September 22, 1994 on
all motions, including motions other than the pending motions to
dismiss, showed no more than that future discovery would be an
expensive and difficult process, and witnesses might be difficult
Judge Link had considered these assertions before. He
had reserved the option of ordering the plaintiffs to pay up to
$10,000.00 of future discovery costs "pending a showing of how much
cost is attributable to delay and how much would have been incurred
with a timely prosecution." He could have ordered payment of these
fees as a condition of continued prosecution if the proof had been
supplemented appropriately. It never was.
The evidentiary record available at the time of dismissal
was insufficient to support the conclusion that dismissal with
prejudice was the only sanction reasonably available. (EN7) The
trial court abused its discretion in granting the defendants'
The plaintiffs engaged in serious dilatory conduct. They
inexcusably delayed prosecuting their case for years and the trial
court appropriately dismissed the case without prejudice for the
initial delay. It properly conditioned further prosecution of the
case on the payment of costs and attorneys' fees. It reasonably
reserved the option of requiring payment of further costs
occasioned by the plaintiffs' delay and inactivity. But it abused
its discretion in dismissing the case with prejudice after the
plaintiffs did not comply promptly with its order for payment of
costs and fees. Even assuming that the record showed the type of
extreme circumstances required for such a dismissal, the trial
court did not adequately explore possible and meaningful
alternatives to dismissal. Further orders requiring payment of
costs and fees occasioned by the plaintiffs' conduct might have
been appropriate, as well as orders requiring pretrial discovery
and trial preparation to be completed within a reasonable time.
These measures and appropriate sanctions for failure to comply with
them in the future are still available to the trial court.
The trial court's order dismissing the plaintiffs'
complaint with prejudice is REVERSED.
1. ECJV's motion states:
Come now the defendants . . . and move
for an order dismissing the plaintiffs' claims
against them herein with prejudice, in
accordance with this court's order dated May
The attached affidavit of counsel read:
2. On May 11, 1994, this court entered
an Order directing that plaintiffs' case
against the ECJV defendants would be dismissed
with prejudice unless the plaintiffs paid
those defendants $2,925 in costs and
attorney's fees within 30 days of the order
and provided the court with proof of payment.
3. More than 30 days has elapsed since
the date of the Order without the plaintiffs
making payment to the ECJV defendants in
accordance with that order. Plaintiffs have
made no payment to the ECJV defendants and,
insofar as the ECJV defendants are aware, have
not provided the court with any sort of proof
of payment. Therefore, according to the terms
of the May 11, 1994 Order, plaintiffs' case
against the ECJV defendants should be
dismissed with prejudice.
City Electric's July 5, 1994 joinder in ECJV's motion to
dismiss with prejudice states:
City Electric, Inc., joins in Enserch's
motion to dismiss the above-referenced case
with prejudice for failure to pay court
ordered costs and attorney's fees in a timely
fashion. City Electric received payment from
Mr. Collins' trust account well past the
deadline set by the court for payment of costs
and fees. Payment was received by uncertified
check in the law offices of Guess & Rudd on
June 27, 1994. See Affidavit of Cynthia L.
Ducey attached. The check has been deposited
in Guess & Rudd's trust account to ensure that
it will clear. Pursuant to the court's order,
payment was to have been received no later
than June 15, 1994 (payment to be made "within
30 days"of the May 11, 1994 order). Payment
is untimely and the case should be dismissed
with prejudice. This is simply the latest in
a series of failures by Mr. Collins to
prosecute the case or to follow court orders.
The case should be dismissed with prejudice.
2. Otis Elevator Co. Inc. v. Garber, 820 P.2d 1072, 1074 (Alaska
1991); Hughes v. Bobich, 875 P.2d 749 (Alaska 1994).
3. Mely v. Morris, 409 P.2d 979, 982 (Alaska 1966).
4. Power Constructors, 811 P.2d at 1055.
5. He said:
[W]ell, I can't pass judgment on the validity
of the plaintiffs' claims, I don't know
anything about them, but I do know that the
affidavits that have been submitted saying how
hard this thing is to defend as a result of
the passage in time make perfect sense. The
JV has been dissolved, the records are at
different parts of the country, people have
retired, moved to different parts of the
country, memories have faded. You know, there
comes a point in time when enough is enough,
and this is enough.
. . . .
If there was a way to level the playing field,
for example, if I could require that
plaintiffs paid each defendant $25,000.00 and
costs and attorney fees or something so that
the attorneys could be compensated for the
amount of time they spent trying to make
plaintiff comply with the Civil Rules and the
case could then proceed on an even playing
field level -- on a level playing field, I'd
probably do that. But I can't because of the
dissipation of the evidence that the
defendants need to defend this case. That
sanction wouldn't work. I've tried everything
else. So it's, as far as I'm concerned, the
system simply can't tolerate any more of the
abuse that it's taken, and I don't expect the
6. This motion was denied by Judge Link as moot. In denying this
motion, Judge Link said: "The parties are also advised that this
court believes that affidavits given in support of motions to
dismiss must be made from personal knowledge."
7. This is not to say that a party's past record of misconduct is
off-limits to a court when it considers imposition of sanctions.
On the contrary, the scope and duration of prior misconduct should
be considered in determining whether sanctions should be imposed
and how severe they should be. But the ultimate sanction of
dismissal with prejudice should be reserved for cases in which
lesser sanctions are not reasonably available or the misconduct of
the party being sanctioned is so egregious that a lesser sanction
would be inappropriate. Even if prejudice need not be shown in all
cases involving unreasonable delay, Power Constructors, 811 P.2d at
1056 n.7, in cases such as this, where the court actually
considered prejudice as a dispositive factor supporting its
dismissal order, the evidentiary record must support its conclusion
that the most drastic sanction available should be applied.