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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. DeNardo v. ABC Inc. RVs Motorhomes (7/26/2002) sp-5599

DeNardo v. ABC Inc. RVs Motorhomes (7/26/2002) sp-5599

     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) 264-0608, fax (907) 264-0878.


            THE SUPREME COURT OF THE STATE OF ALASKA

DANIEL DeNARDO,                         )
                              )    Supreme Court No. S-9980
             Appellant,                 )
                              )    Superior Court No.
     v.                       )    3AN-99-5761 CI
                              )
ABC INC. RVs MOTORHOMES, and  )
HARVEY YATES,                                )    O P I N I O N
                              )
             Appellees.                 )    [No. 5599 - July 26,
                              2002]
________________________________)


          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Stephanie E. Joannides, Judge.

          Appearances:    Daniel   DeNardo,   pro   se,
          Anchorage.   Cheryl L. Graves  and  Laura  L.
          Farley,  Le  Gros Buchanan & Paul, Anchorage,
          for Appellees.

          Before:     Fabe,  Chief  Justice,  Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.

          CARPENETI, Justice.

I.   INTRODUCTION

          I.   It is precisely because outright failures to respond to

discovery  halt the case development process dead in its  tracks,

and  threaten  the  underpinnings of the discovery  system,  that

[Rule 37] authorizes . . . courts, in responding to this kind  of

misconduct, . . . to impose in the first instance any of  a  wide

range  of sanctions.1  Such power, however, does not go unchecked

and  is  the  subject of this appeal.  Daniel DeNardo claims  the

superior  court abused its discretion in dismissing his complaint

for  failure  to comply with a court order compelling  discovery.

          DeNardo also makes constitutional as well as other claims in

regards  to the superior courts order.  However, because  DeNardo

was given multiple chances to comply with discovery but each time

refused, we affirm the decision of the superior court.

II.  FACTS AND PROCEEDINGS

          Daniel  DeNardo  was  an  employee  of  ABC,  Inc.  RVs

Motorhomes   (ABC).   DeNardo  applied  for  a  position   as   a

recreational vehicle (RV) salesperson advertised in  a  newspaper

by  submitting  his resume.  On March 8, 1999, ABC  alleges  that

John  and Jay Marquardt interviewed DeNardo and offered  him  the

position.   DeNardo,  however, argues  only  John  Marquardt  was

present during the interview.  The employment agreement was oral;

no  written  document verified the terms of DeNardos  employment.

On  March  12, 1999, while DeNardo was filling out an  employment

form  designed  to verify his identity and work eligibility,  ABC

alleges that DeNardo displayed his passport, but did not show his

drivers license.  ABC claims DeNardo was informed a valid drivers

license   was   necessary  for  the  position  because   he   was

occasionally  required  to drive the  RVs.   DeNardo  claims  his

drivers license was never requested and that he was told he would

not have to drive the RVs as a part of his employment.

          DeNardo  was  terminated  on March  25,  1999  for  his

failure to provide a drivers license and his hostile behavior.

          DeNardo filed a complaint in superior court in May 1999

alleging breach of an oral employment contract, interference with

contractual  relations, and emotional distress.  In  response  to

the  complaint, ABC contended that, although DeNardo was employed

by  the company, there was no employment contract because he  was

an  at-will  employee.   ABC argues that DeNardos  dismissal  was

justified.

          In  October  1999  DeNardo filed  a  motion  to  compel

production of documents, generally seeking employment information

about  other salespeople employed by ABC.  This motion was denied

by  Superior  Court  Judge  Brian Shortell.   DeNardo  moved  for

reconsideration of the issue.  This motion was denied in November

1999.

          Also  in  November 1999 ABC filed a motion  to  compel.

The  motion  claimed  DeNardo  had failed  to  provide  requested

information  regarding his prior residences  and  employers,  his

criminal  and litigation history, and his subsequent  employment.

The  motion also requested pertinent background information  such

as  a  copy  of  his drivers license, social security  card,  tax

records,  and  signed  release  authorizations.   Judge  Shortell

granted the motion and awarded $100 to ABC as attorneys fees  for

having  to  bring  the  motion to compel.   Judge  Shortell  also

ordered  DeNardo to respond to the order compelling discovery  by

December   27.    DeNardo   moved   for   reconsideration,    but

reconsideration was denied.

          DeNardo  failed  to comply with Judge  Shortells  order

compelling discovery.  ABC then filed a second motion  to  compel

requesting   dismissal   of  DeNardos  complaint   or,   in   the

alternative, additional sanctions.  The alternative ABC  proposed

was  that  the  presumption  should be  drawn  in  favor  of  the

Defendants.   ABC asked that DeNardo be prohibited from  offering

any  of  the  information  requested into  evidence  and  that  a

presumption  be established that DeNardo was an at-will  employee

hired  on  a  commission  basis, thereby  presuming  no  contract

existed.   DeNardo opposed ABCs motion and filed a second  motion

to  compel  on February 14, 2000.  On February 15 Judge  Shortell

issued  a second order against DeNardo compelling discovery,  but

he declined to dismiss DeNardos lawsuit.  Instead, Judge Shortell

stayed  any  action  in the lawsuit for sixty days,  waiting  for

DeNardo  to  comply with the order and warning  that  failure  to

comply now might result in dismissal.

          On  April  7 ABC wrote to DeNardo advising him  of  the

imminent  deadline and its intent to renew the motion to  dismiss

if  he  did  indeed  fail to comply.  No response  was  received.

Sixty  days passed and DeNardo again failed to comply.  ABC again

moved to dismiss.  On May 9 DeNardo filed a motion for discovery,

alleging  he needed information from ABC in order to  respond  to

ABCs motion to dismiss.  By this time, because of Judge Shortells

retirement, Superior Court Judge Stephanie E. Joannides had  been

assigned the case.  Upon review of the pleadings, Judge Joannides

dismissed  the  lawsuit  under Alaska  Rule  of  Civil  Procedure

37(b)(2)(C)  for  DeNardos  failure to  comply  with  the  courts

previous  discovery  orders.   DeNardo  subsequently  moved   for

reconsideration  and renewal of his previous  discovery  motions.

ABC opposed reconsideration and reconsideration was denied.

          DeNardo  now  appeals  the  superior  courts  order  of

dismissal.

III. STANDARD OF REVIEW

          I.   We review a trial courts imposition of sanctions under

Alaska  Rule  of  Civil Procedure 37(b) for a partys  failure  to

comply  with  a  discovery order for an  abuse  of   discretion.2

However, a trial courts discretion is limited when the effect  of

the  sanction it selects is to impose liability on the  offending

party, establish the outcome of or preclude evidence on a central

issue, or end the litigation entirely.3

          Whether  a trial court weighed the appropriate  factors

in  issuing  a  discovery order is reviewed  de  novo.4   Factual

findings  by  the  trial  court are reviewed  under  the  clearly

erroneous standard.5

          When  interpreting  the  Civil Rules  we  exercise  our

independent  judgment, adopting the rule  of  law  that  is  most

persuasive   in   light  of  reason,  precedent,   and   policy.6

Constitutional questions are reviewed de novo.7

IV.  DISCUSSION

     A.   The Superior Court Was Within Its Discretion in Dismissing

          DeNardos Complaint.

          DeNardo argues that Judge Joannides was not within  her

discretion  in  dismissing  his  complaint  for  violation  of  a

discovery order.  We disagree.

          Alaska  Rule of Civil Procedure 37 affords trial courts

broad power to enforce discovery orders by the use of sanctions.8

Rule  37(b)(2)(C)  provides in relevant part that  when  a  party

fails  to obey an order to provide discovery, the court may enter

an  order  dismissing  the  action.   However,  the  sanction  of

dismissal  is  only  allowed in extreme cases  because   a  party

should  not  be  barred from his or her day  in  court  where  an

alternative remedy would suffice to make the adverse party whole. 9

          Because  of the extreme nature of dismissal, the  Rules

of  Civil  Procedure require that before a case is dismissed  the

trial  court  must  first find (1) that the  non-complying  party

acted  willfully to violate the order in question, (2) that there

is  resulting prejudice to the opposing party, and (3)  that  the

imposed  dismissal is sufficiently related to  the  violation  at

issue.   In  addition,  the  court  must  consider  a  reasonable

exploration  of  alternatives  to  dismissal  and  whether  those

alternatives would adequately protect the opposing party as  well

as deter other discovery violations.10

          1.   DeNardos failure to comply with Judge Shortells discovery

               order was willful.

          DeNardo  claims that the superior courts order deleting

six  categories of discovery from ABCs original motion to  compel

shows  that his failure to comply with the courts order  was  not

willful.   Moreover, he argues that, if he had  been  allowed  to

answer  ABCs  motion  to dismiss with the discovery  material  he

sought  from  ABC,  it  would show that ABC  had  committed  many

misrepresentations.    ABC  responds   that   DeNardo   willfully

disobeyed  the  courts order.  Willfulness  in  this  context  is

defined  as a conscious intent to impede discovery, and not  mere

delay, inability or good faith resistance.11

          Although  the  court did limit the amount of  discovery

that  ABC  had  originally requested, this order in  itself  does

nothing  to show that the remaining discovery requests that  were

allowed were unwarranted, or that DeNardos actions in failing  to

          comply with the courts order were in good faith.  If anything,

the  limiting  order shows the superior courts effort  to  ensure

that  DeNardo  was  not  being  harassed  through  the  discovery

process, not that the remaining discovery was irrelevant.

          DeNardo  also argues that if the court had granted  his

motion to compel he could have obeyed the courts order.  However,

we  rejected  this argument in Hikita v. Nichiro  Gyogyo  Kaisha,

Ltd.12   In  Hikita  we held that a discovery request  cannot  be

satisfied  by a party claiming it is attempting to ascertain  the

answers, and putting off its obligation to a later date.13   And,

as in Hughes v. Bobich,14 DeNardos argument here misallocates the

applicable  burden  of proof on the issue of  willfulness.   Once

noncompliance has been demonstrated, the noncomplying party bears

the burden of proving that the failure to comply was not willful.15

DeNardo fails to meet this burden.  Rather than showing that  his

failure  to comply was not willful  for example, by showing  that

the  requested material was lost  DeNardo repeatedly claimed that

ABC  had  no right to the answers or documents.  But the superior

court  had  previously decided that ABC had precisely that  right

(and DeNardo has not appealed that finding).16

          DeNardo  also claims that his actions were not  willful

because  the information could be found in the public  record  or

because   ABC   was  already  in  possession  of   the   relevant

information.   However, we do not require a  complying  party  to

devise  creative ways to obtain information that the noncomplying

party controls and refuses to produce.17  In Hughes, we found that

[b]ecause  the evidence established a substantial and  continuing

violation  .  .  . and because the Hughes failed  to  meet  their

burden  of disproving willfulness, the court could properly  find

that the Hughes noncompliance was willful.18  Similarly here, the

evidence establishes a continuing violation of the courts  order.

While  the  violation may not be as egregious  as  violations  in

other  cases,19  DeNardo  distinguishes  himself  by  showing  no

intention of ever complying with the courts orders.

          In  addition,  ABC is correct that it is illogical  for

DeNardo  to  argue that he needs discovery from ABC in  order  to

complete  a  discovery  order compelling  information  from  him.

Additional  discovery from ABC would, in no  way,  make  DeNardos

drivers  license  or his prior work history  easier  for  him  to

produce  and  DeNardo does not explain in his briefing  why  such

discovery would help.

          Although  he  does  not argue it,  we  also  note  that

DeNardos  pro  se  status  does not provide  an  excuse  for  his

noncompliance  with  the courts order.20   In  her  order,  Judge

Joannides  specifically found DeNardo to  be  familiar  with  the

litigation  process based on other previous and  pending  actions

with  which  he  was involved.  And, as we found in  Coffland  v.

Coffland,21 pro se litigants must make some attempt to comply with

the  courts procedure before receiving the benefit of the  courts

leniency.22  DeNardo has made no effort to comply and therefore is

not  entitled  to  any special allowances based  on  his  pro  se

status.

          The  burden was on DeNardo to show his conduct  in  not

answering  ABCs discovery was not willful, but instead  was  good

faith  resistance.  Because DeNardo did not meet this burden,  we

find   his  conduct  to  evidence  a  willful  intent  to  impede

discovery.

          2.   ABC suffered prejudice as a result of DeNardos failure to

               comply.

          ABC  argues  it  suffered  prejudice  as  a  result  of

DeNardos  failure to produce the requested information.  Analysis

of each category of requested information supports ABCs position.

               a.   Prior residences and employers

          ABC  argues that it was prejudiced by DeNardos  failure

to   provide  information  regarding  his  prior  residences  and

employers,   information   that   might   go   towards   DeNardos

credibility.  A listing of DeNardos prior residences, ABC claims,

might  have aided in determining jurisdictions to search for  his

          criminal and litigation history.

          ABC  is  correct  that information  regarding  DeNardos

prior  residences  and  employers  might  have  been  helpful  in

determining  which jurisdictions to search for his  criminal  and

litigation  history.  In addition, it may have  been  helpful  in

determining  DeNardos credibility; credibility  would  likely  be

particularly important in resolving the underlying dispute  here,

which concerns an oral contract.23  Knowledge of prior residences

would  allow ABC to contact past neighbors of DeNardos who  might

give further information regarding credibility.  Speaking to past

employers  would  allow  ABC  to determine  if  DeNardo  had  had

previous   work-related  problems  and  might  also  go   towards

determining his credibility in work-related situations.

          Because   DeNardos  prior  residences  and   employment

history  would  have been helpful in determining how  to  uncover

other  relevant  evidence  as well as issues  involving  DeNardos

credibility,  Judge  Joannides did not err  in  finding  ABC  was

prejudiced by DeNardos failure to provide the information.

               b.   Criminal and litigation history

          ABC claims that information regarding DeNardos criminal

and  litigation  history  was necessary  because  it  could  have

affected DeNardos credibility, a necessary factor in resolving  a

disputed oral contract.  DeNardo claims that such information  is

generally  irrelevant, that character evidence is not  admissible

in  a  civil  trial, and that, in any event, such information  is

available in the public record.

          As  noted  above, credibility is a necessary factor  in

resolving  a dispute over an oral contract.24  DeNardos  criminal

history  is thus possibly relevant as it might affect  the  fact-

finders   view   of  DeNardos  credibility.   DeNardos   previous

litigation history is potentially relevant as well, and it  might

lead to the discovery of admissible evidence.

               c.   Subsequent employment and tax records

          ABC argues that in order to properly determine damages,

          information regarding DeNardos subsequent employment is required.

DeNardo responds that ABC already possesses information regarding

his subsequent employment and that his tax records are protected.

          We have held that [w]ithholding materials relating to a

partys  damages  may  seriously prejudice the  adverse  party  by

making  it  difficult  or  impossible to  adequately  assess  the

strength of the opponents case, thereby leaving the opponent in a

weakened position for settlement negotiations or other purposes.25

That appears to have been the case here.

          In   his   complaint,  DeNardo  requested  compensatory

damages.   However,  as  DeNardo  knows  from  his  own  previous

litigation,  a plaintiff alleging breach of contract must present

evidence sufficient to calculate the amount of the loss caused by

the breach. 26  DeNardo argues that ABC has all of the information

it  needs  because it knows he was subsequently hired  by  Alaska

Economy  RVs.  However, [t]he purpose of awarding damages  for  a

breach  of  contract is to put the injured party  in  as  good  a

position  as  that  party would have been had the  contract  been

fully  performed.27  Therefore, by analogy to wrongful  discharge

cases,  an  employee is generally entitled to the amount  of  the

agreed-upon salary for the unexpired term of his employment minus

what  he  could earn by making diligent efforts to obtain similar

work.28  ABC has no way of knowing, absent DeNardo providing  it,

the  salary information necessary to litigate or settle the issue

of   damages.   Therefore,  despite  ABC  possibly  having   some

knowledge  regarding where DeNardo was working shortly  after  he

left  ABC,  DeNardo was required to provide the  information  ABC

requested.

          Because  whether DeNardo obtained subsequent employment

and because information involving that employment was relevant to

any  damages regarding his claim for breach of contract, ABC  was

prejudiced by his failure to provide the requested information.

               d.   DeNardos drivers license

          One of the alleged reasons for DeNardos termination was

          his failure to provide a copy of his drivers license upon being

hired by ABC, which claimed that driving RVs was a requirement of

DeNardos employment.  ABC thus argues that whether DeNardo had  a

valid  drivers  license  is at the very heart  of  this  dispute.

DeNardo claims this information is irrelevant because driving was

not a requirement.

          This  factual dispute was not susceptible to resolution

during  the pretrial period when discovery occurs.  But  ABC  was

entitled  to discovery of information pertinent to the  claim  so

that it could prepare for the litigation.  Had the case proceeded

to  trial,  and  had  the fact-finder concluded  that  a  drivers

license was a requirement of the job, it would clearly have  been

important to know if DeNardo possessed a license.

          3.   The sanction chosen was sufficiently related to DeNardos

               violation of the order.

          1.   The trial court must be allowed to enforce its discovery

orders  with sanctions tailored to fit the circumstances.29   The

test  for  the  validity of a discovery sanction  that  dismisses

claims or orders facts or issues to be taken as established under

[Rule 37(b)(2)] is whether these claims or issues are elements of

the  dispute  that  cannot be determined on  the  merits  without

disclosure  of the evidence the Court has ordered  the  party  to

produce.  30   If  the  dismissed claims  are  unrelated  to  the

information  the party refuses to supply, the discovery  sanction

constitutes punishment and is impermissible.31

          The credibility of a party is relevant to the issue  of

how  to  interpret  an  oral contract.32   Evidence  of  DeNardos

credibility, which could be influenced by information gained from

prior  residences, and prior employment, was highly  relevant  to

the  dismissed claims.  And subsequent employment, as well as tax

information, are relevant to the issue of damages.   Because  the

information  requested was directly relevant  to  the  claims  at

issue,  the  dismissal sanction was sufficiently related  to  the

violation.

          4.   A lesser sanction would not adequately protect the opposing

               party while deterring other discovery violations.

          DeNardo   claims  Judge  Joannides  did  not   consider

meaningful alternatives to the sanction of dismissal in her order

as  required by law.  ABC contends that a lesser sanction in this

instance would not have sufficed.

          While we have recognized that the trial court need  not

make  detailed findings or examine every alternative  remedy,  we

have  held  that litigation ending sanctions will not  be  upheld

unless the record clearly indicate[s] a reasonable exploration of

possible  and  meaningful  alternatives  to  dismissal.   33    A

conclusory  rejection  of all sanctions short  of  dismissing  an

action does not suffice as a reasonable exploration of meaningful

alternatives.34   [A] party should not be barred from his or  her

day  in  court where an alternative remedy would suffice to  make

the  adverse  party  whole.  35   [B]efore  a  court  may  impose

litigation  ending sanctions for discovery violations the  record

must  clearly  indicate a reasonable exploration of possible  and

meaningful alternatives to dismissal.36

          In  her order, Judge Joannides stated, Lesser sanctions

than  dismissal  have been attempted and have been  unsuccessful.

Plaintiffs violations are so numerous [that] sanctions other than

dismissal will not adequately protect defendants.  We agree.   No

alternate remedy would serve to make ABC whole.

          Prior  to  Judge Joannides taking over the case,  Judge

Shortell gave DeNardo ample chances to comply.  First, he imposed

a  monetary  sanction.  Second, he issued a stay on  proceedings.

Each time, DeNardo responded with the same outright refusal.  And

finally,  after  DeNardo did not act within the sixty-day  period

allowed  by  the  court, Judge Joannides granted ABCs  motion  to

dismiss.

          DeNardo claims Judge Joannides did not consider  lesser

sanctions.   At  this  point, though, she  was  not  required  to

consider  lesser sanctions.   The record already  indicated  that

          lesser sanctions had been attempted unsuccessfully.  DeNardos

violations  had become so egregious, Judge Joannides  acted  well

within  her  discretion in determining that  no  lesser  sanction

would deter DeNardo from future violations.

     B.   The  Imposition of Sanctions Did Not Deny  DeNardo  Any

          Constitutional Rights.

          1.   DeNardos due process rights were not violated by the

               dismissal of his complaint.

          DeNardo  claims  that, because he was not  afforded  an

opportunity to respond to the motion to dismiss, his due  process

rights were violated.  ABC argues that DeNardo was afforded  full

due process before his complaint was dismissed.

          In  Sandstrom & Sons, Inc. v. State,37 Sandstrom argued

that  the  superior courts dismissal of his complaint denied  him

due  process because the superior court did not hold a  dismissal

hearing.38  We held that due process was properly afforded by the

superior  courts warning to Sandstrom in advance  that  dismissal

with  prejudice would occur if Sandstrom did not comply with  the

discovery  order.  This order afforded Sandstrom  notice  and  an

adequate  opportunity to be heard on the dismissal  issue.39   In

Sandstrom,  the  time between the courts warning and  the  actual

dismissal was almost two months.40  Similarly,  DeNardo was given

sixty  days to comply with the courts order, an order which  also

warned   dismissal  would  be  a  consequence  of  noncompliance.

Although DeNardo requested an extension of time to respond on May

9,  2000, the superior court was within its discretion in denying

the  request, as the request stated that the need for  additional

time was for DeNardo to complete his own discovery, not to gather

materials  to comply with the courts orders.  DeNardo could  have

requested  a  hearing on the issue of whether  dismissal  was  an

appropriate sanction for his failure to comply.  As in Sandstrom,

however, no such hearing was requested.

          Because  the  superior court adequately warned  DeNardo

dismissal would occur if the courts order was not complied  with,

          DeNardos right to due process was not violated by the dismissal

of his complaint.

          2.   DeNardos right to a trial by jury was not violated.

          1.   The Alaska Constitution guarantees the right to jury trial.41

The  Alaska  Constitution, however, preserves the right to a jury

trial in civil cases only to the same extent it existed at common

law.  42  In Christensen, Christensen argued that his right to  a

jury  trial was violated by the courts grant of summary judgment.

But  we  held that because a trial court had the right at  common

law  to remove factual issues from the jurys consideration  where

there  was insufficient evidence to raise a question of fact  for

the  jury, a partys right to a jury trial could only be  violated

by a summary judgment motion when it was improperly granted.43

          A  party  willfully refusing to comply with a discovery

order  risks ultimate loss of its case, whether through dismissal

(if  the recalcitrant party is the plaintiff)44 or imposition  of

liability (if the non-complying party is the defendant).45

          Because  DeNardo  was  given adequate  notice  that  he

risked  dismissal if he continued to violate the superior  courts

discovery  order, dismissal did not violate his right to  a  jury

trial.

     C.   DeNardo Failed to Show that Alaska Rules of Civil Procedure

          11, 26, 34, 37, and 56 Are Unconstitutional.

          The burden is on the party who challenges a statute  or

rule     on     constitutional     grounds     to     demonstrate

unconstitutionality,   for   there   is    a    presumption    of

constitutionality  which attaches to such enactments.46   DeNardo

claims  Rules  11, 26, 34, and 37 of the Alaska  Rules  of  Civil

Procedure are unconstitutional.  However, he makes no mention  of

these  rules  after  his statement of issues.  DeNardo  therefore

does   not   meet   his  burden  to  rebut  the  presumption   of

constitutionality that the rules enjoy.

          DeNardo  claims Rule 56 is unconstitutional.   But  his

lawsuit  was  dismissed on a motion to dismiss,  not  a  Rule  56

          motion for summary judgment.  For this reason, and because his

briefing is so cursory as to constitute a waiver of the argument,47

we reject this claim.

     D.   The  Information  Requested by  ABC  Does  Not  Violate

          DeNardos Constitutional Right to Privacy.

          The  right  to  privacy  is not absolute;  it  protects

intimate  or  sensitive personal information  .  .  .  which,  if

disclosed even to a friend, could cause embarrassment or anxiety. 48

But  it  does not shield a party who brings a lawsuit from having

to reveal information that is relevant to his or her claims, even

though the information may otherwise be private.49

          Moreover,  the information at issue here is  background

information  routinely requested in civil  litigation.   Although

DeNardo  claims his tax returns are not relevant,   they  provide

evidence  of  his earning potential, information  useful  in  any

damages  determination.  DeNardo has no privacy  defense  to  the

discovery information relevant to the lawsuit he instituted.

V.   CONCLUSION

          I.   DeNardo willfully disobeyed court orders regarding
discovery.  Therefore, the superior court decision dismissing his
complaint for his repeated failure to comply with those orders is
AFFIRMED.50
_______________________________
     1     Hikita  v. Nichiro Gyogyo Kaisha, Ltd., 12 P.3d  1169,
1175  (Alaska  2000) (quoting 7 James Wm. Moore  et  al.,  Moores
Federal Practice  37.90, at 37-141 (3d ed. 1997)) (alteration  in
original).

     2    Coffland v. Coffland, 4 P.3d 317, 320 (Alaska 2000).

     3     Sykes v. Melba Creek Mining, Inc., 952 P.2d 1164, 1169
(Alaska 1998).

     4     Peter  v. Progressive Corp., 986 P.2d 865, 867 (Alaska
1999).

     5    Coffland, 4 P.3d at 320.

     6    Peter, 986 P.2d at 867 (internal citations omitted).

     7    Id.

     8    Hughes v. Bobich, 875 P.2d 749, 752 (Alaska 1994).

     9     Id. (quoting Sandstrom & Sons, Inc. v. State, 843 P.2d
645, 647 (Alaska 1992)).

     10    Alaska R. Civ. P. 37(b)(3); Hughes, 875 P.2d at 753.

     11     Hawes  Firearms  Co. v. Edwards, 634  P.2d  377,  378
(Alaska 1981).

     12    12 P.3d 1169, 1175 (Alaska 2001).

     13    Id.

     14    875 P.2d 749 (Alaska 1994).

     15    Id. at 753.

     16     In  granting the motion to compel, the superior court
implicitly affirmed the likelihood that the answers or  documents
will  lead  to the discovery of admissible evidence.   Alaska  R.
Civ. P. 26(b).

     17    Coffland v. Coffland, 4 P.3d 317, 321 (Alaska 2000).

     18    Hughes, 875 P.2d at 753.

     19     See,  e.g., Coffland, 4 P.3d at 320-21 (Alaska  2000)
(holding  that  sanctions  were proper after  husband  failed  to
answer  any interrogatories, failed to timely file witness  list,
and  failed to timely provide information for valuation of family
business); Honda Motor Co., Ltd. v. Salzman, 751 P.2d 489, 492-93
(Alaska  1988)  (affirming declaration of liability  for  various
discovery  violations  against  party  after  oral  and   written
warnings,  extended  deadlines, and less drastic  sanctions  were
imposed).

     20    ABC, however, does argue against the application of  a
more  lenient  standard to DeNardo as a  result  of  his  pro  se
status.

     21    4 P.3d 317 (Alaska 2000).

     22    Id. at 321.

     23     See Howarth v. First Natl Bank of Anchorage, 540 P.2d
486,  490 (Alaska 1975) (holding that oral contacts are, by their
very  nature, dependent upon an understanding of the  surrounding
circumstances, the intent of the parties, and the credibility  of
witnesses.).

     24    Id.

     25     Alaska Trams Corp. v. Alaska Elec. Light & Power, 743
P.2d 350, 354 (Alaska 1987).

     26    DeNardo v. GCI Communication Corp., 983 P.2d 1288, 1290
(Alaska  1999)  (quoting Ben Lomond, Inc. v. Schwartz,  915  P.2d
632, 636 (Alaska 1996)).

     27     Guard  v. P&R Enterprises, Inc., 631 P.2d 1068,  1071
(Alaska 1981).

     28     City of Fairbanks v. Rice, 20 P.3d 1097, 1111 (Alaska
2000).

     29    Rohweder v. Fleetwood Mobile Homes of Oregon, Inc., 767
P.2d 187, 191 (Alaska 1989).

     30     Hazen v. Municipality of Anchorage, 718 P.2d 456, 460
(Alaska  1986)  (quoting Bachner v. Pearson, 479  P.2d  319,  324
(Alaska 1970)).

     31    Id.

     32    Howarth v. First Natl Bank of Anchorage, 540 P.2d 486,
490 (Alaska 1975).

     33     Hughes  v.  Bobich, 875 P.2d 749, 753  (Alaska  1994)
(alteration  in original)  (quoting Power Constructors,  Inc.  v.
Acres Am., 811 P.2d 1052, 1055 (Alaska 1991)).

     34    Id.

     35     Sandstrom  & Sons, Inc. v. State, 843 P.2d  645,  647
(Alaska 1992) (quoting Power Constructors, Inc., 811 P.2d at 1055
(remanding  dismissal  of lawsuit for reasonable  exploration  of
alternate  sanction  to dismissal where no  evidence  existed  on
record of such exploration prior to dismissal)).

     36    Underwriters at Lloyds London v. The Narrows, 846 P.2d
118, 119 (Alaska 1993).

     37    843 P.2d 645 (Alaska 1992).

     38    Id. at 648.

     39    Id.

     40    Id.

     41    Alaska Const. art. I  16.

     42     Christensen v. NCH Corp., 956 P.2d 468,  477  (Alaska
1998) (quoting Alaska Const. art. I,  16).

     43    Id.

     44     Alaska Trams Corp. v. Alaska Elec. Light & Power, 743
P.2d 350 (Alaska 1987).

     45    Honda Motor Co., Ltd. v. Salzman, 751 P.2d 489 (Alaska
1988).

     46     A. Fred Miller Attorneys at Law, P.C. v. Purvis,  921
P.2d 610, 618 (Alaska 1996).

     47     A.H.  v.  W.P.,  896  P.2d  240,  243  (Alaska  1995)
(arguments   given  only  cursory  treatment  in   briefing   are
considered waived on appeal).

     48    Intl Assn of Fire Fighters, Local 1264 v. Municipality
of  Anchorage, 973 P.2d 1132, 1134 (Alaska 1999) (alterations  in
original)  (quoting Doe v. Alaska Superior Court, Third  Judicial
Dist., 721 P.2d 617, 629 (Alaska 1986)).

     49    See, e.g., Langdon v. Champion, 745 P.2d 1371, 1372-73
(Alaska  1987)  (restating rule that commencement of  action  for
personal  injuries  constitutes plaintiffs waiver  of  physician-
patient  privilege); Trans-World Investments v. Drobny, 554  P.2d
1148,  1151 (Alaska 1976) (holding that the filing of a  personal
injury  action waives the physician-patient privilege as  to  all
information concerning the health and medical history relevant to
the matters which the plaintiff has put in issue.).

     50     DeNardos  claims  that the superior  court  erred  in
denying  his discovery motions are moot:  Because we  affirm  the
dismissal of DeNardos complaint, even resolving his claims in his
favor  would provide him no relief.  A claim is moot if the party
bringing the action would not be entitled to any relief  even  if
they  prevail[ed].  Nickels v. Napolilli, 29 P.3d 242, 254,  n.60
(Alaska  2001)  (alterations in original)  (quoting   Maynard  v.
State  Farm Mut. Auto. Ins. Co., 902 P.2d 1328, 1329 n.2  (Alaska
1995)).