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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Khalsa v. Chose (7/29/2011) sp-6584

Khalsa v. Chose (7/29/2011) sp-6584, 261 P3d 367

        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,  email 
        corrections@appellate.courts.state.ak.us. 

                 THE SUPREME COURT OF THE STATE OF ALASKA 

SHABD-SANGEET KHALSA,                         ) 
                                              )       Supreme Court No. S-13472 
                       Appellant,             ) 
                                              )       Superior Court No. 4FA-06-01234 CI 
        v.                                    ) 
                                              )       O P I N I O N 
LARS CHOSE, TAMASINE                          ) 
DRISDALE, GORDON STEIN, and                   )       No. 6584 - July 29, 2011 
MANDALA CUSTOM HOMES,                         ) 
                                              ) 
                       Appellees.             ) 
                                              ) 

               Appeal from the Superior Court of the State of Alaska, Fourth 
               Judicial District, Fairbanks, Douglas Blankenship, Judge. 

               Appearances:        Shabd-Sangeet       Khalsa,    pro   se,  Palmer, 
               Appellant.     Shelby     B.  Mathis,   Borgeson    &   Burns,   P.C., 
               Fairbanks, for Appellees Chose and Mandala Custom Homes. 
               Nelson     G.   Page,  Burr,   Pease   &   Kurtz,   Anchorage,     for 
               Appellee      Gordon    Stein.    No    appearance     by   Appellee 
               Tamasine Drisdale. 

               Before:    Carpeneti, Chief Justice, Fabe, Winfree, Christen, 
               and Stowers, Justices. 

               FABE, Justice. 

I.      INTRODUCTION 

                Shabd-Sangeet Khalsa bought a home kit from Mandala Custom Homes in 

August 2003.  The house was assembled in Fairbanks and Khalsa moved into the home. 

----------------------- Page 2-----------------------

Soon, the house developed various problems, including water leaking from the ceiling. 

Khalsa   climbed   a   ladder   to   inspect   the   leak   and   fell,   injuring   herself.  Khalsa   sued 

Mandala and other parties in February 2006, alleging that the house was defective and 

that   defects   in   the   home   caused   a   variety   of   damages,   including   damages   related   to 

Khalsa's fall.  The superior court set a discovery schedule, and, when discovery did not 

proceed smoothly, ordered Khalsa in January 2008 to sign medical release forms, present 

herself for deposition, and submit to medical and psychological testing, cautioning her 

that   if   she   did   not   comply  with   discovery   orders   the   superior   court   could   impose 

sanctions, including dismissal of her claims.             When Khalsa did not sign the medical 

release forms, the superior court found that her refusal was willful noncompliance with 

its order and in July 2008 dismissed Khalsa's injury-related claims and damages as a 

discovery sanction. 

                 Proceeding with Khalsa's other claims, in August 2008 the superior court 

turned to Khalsa's deposition, which had been delayed since the defendants originally 

attempted to schedule it in October of   2007.             Khalsa had previously argued that the 

defendants had to pay for her and a caregiver to travel to Alaska for the deposition and 

requested that the deposition be conducted in writing; the superior court resolved these 

issues at the January 2008 hearing by scheduling the deposition for an agreed-upon date 

in April 2008.     Khalsa missed the April deposition, notifying defendants only one day 

prior that she would not attend unless they provided advanced travel costs.  Overlooking 

Khalsa's      conduct    in  relation    to  the  missed     April   deposition,    the   superior    court 

rescheduled the deposition with Khalsa's agreement for September 3, 2008, and ordered 

her to attend.     Although Khalsa did appear briefly at the deposition, she walked out 

shortly after it began, handing opposing counsel a pre-prepared notice terminating the 

deposition.     Defendants   moved   for   dismissal   of   Khalsa's   suit.       The   superior   court 

concluded that Khalsa's conduct at the deposition constituted a continuing willful refusal 

                                                    -2-                                              6584
 

----------------------- Page 3-----------------------

to comply with discovery orders and imposed litigation-ending sanctions, dismissing her 

entire case with prejudice.      We affirm the superior court's discovery sanctions. 

II.     FACTS AND PROCEEDINGS 

                In August 2003 Shabd-Sangeet Khalsa contracted to purchase a home from 

Mandala   Custom   Homes   (Mandala),   a   Canadian   company   based   in   Nelson,   British 

Columbia, and owned by Lars Chose and Tamasine Drisdale. Mandala shipped the home 

kit to Khalsa in Fairbanks; it arrived on August 26, 2003.              Khalsa paid to have Chose 

come to Fairbanks and supervise assembly.   Khalsa alleged that during assembly Chose 

discovered that some parts of the house were missing; Khalsa also alleged that Chose 

made mistakes in assembling the house.  Khalsa moved into the home in February 2004. 

                Khalsa asserted that shortly after she moved in she noticed water dripping 

near a skylight.    Khalsa stated that she contacted Chose to complain about the dripping 

and that Chose "appeared to indicate" to Khalsa that she would have to inspect the leak 

to describe it to Chose.     According to Khalsa, she climbed a ladder to the skylight area 

to do this, but she fell from the ladder, injuring her shoulder, elbow, and wrist. 

                On February 27, 2006, Khalsa filed a pro se complaint against Mandala, 

Chose,   Drisdale,   and   Gordon   Stein,   the   engineer   who   approved   the   design   plan   for 

Khalsa's   house.     Khalsa   made   claims   for   "[b]reach   of   warranty   against   defects   in 

materials and workmanship, and against defects in the design, [b]reach of warranty of 

merchantability, [b]reach of warranty   of fitness for particular purpose, and failure or 

refusal to comply with . . . specific promises to make things right."             Khalsa included in 

her   complaint   that   she   developed   "complications   during   the   healing   process   of   the 

injuries   she   sustained"    and   that  she  "[h]ad   been   subjected    to  additional   pain   and 

suffering" due to additional surgeries.  Khalsa asked for general damages in the amount 

of $250,000 along with "proven incidental and consequential damages."                    The $250,000 

represented "the difference between the value of the defectively designed . . . [h]ome . . . 

                                                  -3-                                             6584
 

----------------------- Page 4-----------------------

together with the unanticipated costs plaintiff endured as a result of her injuries, and the 

value the home would have had if it had been as warranted by defendant manufacturer 

to plaintiff," but it did not include "continuing irreparable physical, psychological, and 

emotional injury for more than two years of unfulfilled promises from Lars Chose that 

[Mandala] would make things right." 

                 The superior court set a pretrial conference for June 11, 2007, which Khalsa 

did not attend.    On June 13 the court issued a pretrial order setting discovery deadlines 

and scheduling trial for the week of May 19, 2008.  On July 12, 2007, the superior court 

held   a   status   hearing;   Khalsa   was   present.  The   court   explained   the   purposes   of   the 

Alaska Rules of Civil Procedure, specifically pointing Khalsa to Rules 26-37 governing 

discovery, and advised Khalsa that even as a pro se litigant, she was required to follow 

them.    The superior court also suggested to Khalsa that she retain or consult with an 

attorney.     The court emphasized the importance of meeting discovery deadlines, noting 

that as the trial date approached the court would "become less flexible [about deadlines] 

because     it  prejudices    the  other   parties."    The    superior    court   then   ordered    initial 
disclosures completed by August 15, 2007.1 

                 On January 16, 2008, the superior court held another status hearing. Khalsa 

appeared telephonically from Arizona.             The defendants complained that they had not 
received any   discovery from Khalsa2 and had been unable to take her deposition3                        or 

        1        Khalsa   did   not   file   initial   disclosures   until   January   15,   2008,   but   the 

superior court recognized that other parties were also late in filing initial disclosures and 
accepted Khalsa's late-filed disclosures without penalty. 

        2        Defendants      acknowledged        receiving    Khalsa's     initial  disclosures     that 

morning but noted immediately that no supporting documents were attached. 

        3        Defendant   Stein's   counsel   sent   a   letter   to   Khalsa   on   October   23,   2007,
 

requesting to set a date to take her deposition but did not receive any response.                  Khalsa
 
                                                                                           (continued...)
 

                                                    -4-                                              6584
 

----------------------- Page 5-----------------------

obtain signed medical releases.         The superior court explained to Khalsa that she was 

required to provide information about her claims and damages to the defendants.  The 

superior court cautioned Khalsa that if she did not comply with discovery orders, it could 

impose     sanctions   such    as  claim   preclusion.    After   a   short   discussion   with   Khalsa 

regarding her injury-related claims and damages, the superior court expressly found that 

Khalsa had "placed . . . both her physical condition and her mental condition at issue 

claiming damages in this case."  The court orally ordered Khalsa to sign medical release 

forms   by   February   4,   2008;   to   make   herself   available   for   deposition   scheduled   for 

April 25, 2008, in Fairbanks; and to submit to an independent medical evaluation and 

psychological evaluation.        The April deposition was scheduled by agreement for after 

Khalsa planned to return to Alaska from Arizona.  The superior court also postponed the 

trial to November 17, 2008, to give the parties adequate time to complete discovery and 

prepare for trial. 

                On March 13, 2008, Stein filed a motion for sanctions, asserting that Khalsa 

had been completely uncooperative with the discovery process and had, among other 

things, failed to provide signed medical release forms by the February 4, 2008 deadline; 

Mandala and Chose joined the motion.              Stein stated that he sent medical release forms 

to Khalsa on January 17 and had heard nothing in response.                  Stein asked the superior 

court to dismiss the matter.   In response, Khalsa filed a request to reschedule the trial and 
extend discovery.4      She also asserted that she had "never failed or refused to provide 

        3       (...continued) 

faxed a motion the morning of the January 16, 2008 hearing explaining that she had 
requested   that   defendants   consider   "submitting   questions   in   writing   and   she   would 
respond in writing to avoid the unnecessary cost of a deposition" but she had not received 
any    questions    in  writing.    Khalsa    also  generally    requested    that  "all  discovery    be 
conducted in writing until at least after March or April." 

        4       The    superior    court   dismissed    Khalsa's    request   to  reschedule    as  moot 

                                                                                         (continued...) 

                                                   -5-                                             6584
 

----------------------- Page 6-----------------------

discovery" but that she had been unable to produce documents or appear for deposition 

(at least without advance payment from defendants for her and her caregiver to travel to 

Alaska) because she had been out of state for surgery, treatment, and therapy related to 

her 2004 injury. 

                Before the superior court ruled on defendants' sanctions motion, April 25 

arrived   and   Khalsa   did   not   appear   for   her   scheduled   deposition,   instead   faxing   on 

April 24 a statement that she would be unavailable because she was in Washington, 

en route from Arizona.  She added that she believed that "the . . . [d]eposition may have 

been scheduled at a time when defendants knew plaintiff was still not yet in the State of 

Alaska" and that she would only be able to appear a sufficient amount of time after 

defendants sent advanced payment for her travel expenses.                Citing this incident, Stein 

filed a supplemental memorandum in support of sanctions on April 28, 2008; Mandala 

and Chose again joined. 

                On July 31, 2008, the superior court issued a memorandum decision and 

order imposing discovery sanctions against Khalsa. The superior court found that Khalsa 

had failed to comply with any of its orders issued at the January 2008 hearing.                 Citing 

Alaska rules of procedure and case law, the court determined that "[t]he information [] 

Khalsa ha[d] failed to disclose [was] material to her claims," that her "refusal to provide 

discovery has prejudiced the defendants' ability to defend against her claims," and that 

her conduct, at least in refusing to sign medical release forms, was willful.               The court 

decided that an appropriate sanction was to bar some of Khalsa's claims while allowing 

others to go forward.       The superior court thus ordered that Khalsa could not "present 

        4       (...continued) 

because it had already moved trial to November 17, 2008, just one week earlier than 
Khalsa's requested date. 

                                                  -6-                                               6584 

----------------------- Page 7-----------------------

evidence of her physical injuries or medical expenses" because of "[her] willful refusal 

to sign medical records releases after the court clearly ordered her to do so." 

                 On August 15, 2008, the superior court held another status hearing; Khalsa 

was present.     The court again urged Khalsa to retain counsel, reminded her of past-due 

discovery deadlines, and warned her that failure to comply with discovery could result 

in dismissal of her claims. But the court nevertheless denied defendants' motion to deem 

their unanswered requests for admissions admitted, allowing Khalsa additional time to 

respond.  The court also called Khalsa's husband during the hearing and set up a tentative 

house inspection date. Then, the superior court ordered Khalsa to (1) answer defendants' 

                                                 5 
discovery requests by August 26, 2008;  (2) prepare a witness list by August 26, 2008; 

and (3) schedule a time for defendants' expert to inspect her house.                   In addition, after 

arriving at an agreed-upon date, Khalsa   was   ordered to appear for her deposition on 

September 3, 2008. 

                 Khalsa did appear for deposition on September 3, 2008.   But after just five 
m i n u t e s    o f    q u e s t i o n i n g  K h a l s a  t e r m i n a t e d  t h e   d e p o s i t i o n . 6 

        5        Khalsa   filed   responses     to  defendants'   interrogatories   and   requests   for 

admissions by the August 2008 deadline. 

        6       After asking for her name and address, counsel for defendant Chose asked 

Khalsa whether she had received help drafting her complaint and Khalsa answered that 
a   paralegal   in   Palmer   had   typed   what   she   gave   him.  Then   the   following   exchange 
occurred: 

                 Q:      Besides typing up your complaint, using words that 
                you chose, what else did Mr. Hart do? 

                A:       I don't know. 

                 Q:      You don't know what Mr. Hart did on your behalf? 

                A:       You know, you're already getting in a strange venue 
                here.   What is it that you want to know? 
                                                                                           (continued...) 

                                                    -7-                                              6584
 

----------------------- Page 8-----------------------

Khalsa handed counsel a pre-prepared notice to terminate the deposition, which alleged 

that the deposition was "intentionally designed to cause [her] to endure further emotional 

distress, due to the psychological trauma . . . that was caused or contributed to by the 

defendants."     She also handed counsel a motion requesting, among other things, that 
deposition   questions   be   submitted   and   answered   in   writing.7       She    filed   these  two 

documents with the superior court later that day.             On September 8, 2008, Stein, soon 

joined   by   Mandala   and   Chose,   filed   a   renewed   motion   for   sanctions   in   response   to 

Khalsa's actions. 

        6       (...continued) 

                Q:       I want to know what assistance Mr. Hart gave you. 
                And then I have other questions. 

                A:       I hired him as a paralegal. 

                Q:       Okay.  And I don't know what that means, so I need - 
                the only way I can . . . . . 

                A:      You're a lawyer and you don't know what that means? 

                Q:      No, I don't, Ms. Khalsa.        And I'm not - I really am 
                not planning on spending the afternoon fencing with you.               If 
                you're not going to answer the question, . . . .           I'll go to the 
                court and make a determination as to whether you should be 
                ordered to answer the question. 

                A:      We're through. 

                Q:      Ms.   Khalsa,     you've    handed    me   something     I  don't 
                know what it is and apparently . . . . . 

                A:       I'd suggest you look at it because I've just terminated 
                the deposition. 

                Q:       Okay.
 

                (Witness exits deposition room)
 

        7       Khalsa   had   previously   suggested   that   discovery   be   conducted   solely   in 

writing; the superior court advised her that this was not practicable. 

                                                   -8-                                             6584
 

----------------------- Page 9-----------------------

                 On   October   24,   2008,   the   superior   court   issued   a   decision   dismissing 

Khalsa's   suit.     Initially   reviewing   and   affirming   its   July   31,   2008   order   dismissing 
Khalsa's injury-related claims and damages,8 the superior court emphasized that it had 

treated Khalsa leniently, explained the discovery process to her, and warned her of the 

consequences of failure to comply, but that Khalsa "repeatedly disregarded the court's 

orders, ignored Defendants' discovery requests, and insisted upon following a schedule 

based on her own convenience."             Turning to more recent events, the court found that 

(1) Khalsa's "refusal to participate in her deposition in a meaningful way constituted 

willful noncompliance with th[e] court's order"; (2) defendants had been prejudiced by 

Khalsa's refusal to be deposed and by her other discovery delays; and (3) "there is a 

nexus between the withheld discovery and the proposed sanction dismissing the claims." 

The superior court reviewed the alternatives it had offered Khalsa and summarized that 

"the    court's   admonitions      during    hearings    and   dismissal     of  medical    claims    were 

unsuccessful      in  encouraging      Ms.   Khalsa    to  be  more    cooperative     in  the  discovery 

process."    The superior court concluded that Khalsa's "violations of discovery rules, 

refusal to comply with the court's orders, delays, and general lack of cooperation are 

sufficiently egregious to allow the court to exercise its discretion to impose the sanction 

of dismissal." 

                 Khalsa   appeals   both   the   July   31,   2008   order   and   the   October   24,   2008 
order.9 

        8        The superior court interpreted Khalsa's September 3, 2008 motion for order 

in part as a motion for reconsideration pursuant to Alaska Civil Rule 77(k), treating it as 
timely even outside the ten-day limit on account of Khalsa's pro se status. 

        9        Defendants respond only to Khalsa's appeal of the October 24, 2008 order 

dismissing Khalsa's entire suit.        But taking her pleadings liberally because Khalsa is a 
pro se litigant, Khalsa has appealed both of the orders.  See Breck v. Ulmer, 745 P.2d 66, 
75 (Alaska 1987) ("[T]he pleadings of pro se litigants should be held to less stringent 
                                                                                           (continued...) 

                                                    -9-                                              6584
 

----------------------- Page 10-----------------------

III.    STANDARD OF REVIEW 

                 We   review     a   trial   court's   decision   to   impose  sanctions   for   discovery 
violations for abuse of discretion.10       This discretion is limited, however, "when the effect 

of   the   sanction   [the   trial   court]   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."11 

IV.     DISCUSSION 

                 The thrust of Khalsa's appeal is that the superior court erred by imposing 

claim-ending   and   then   litigation-ending   sanctions   for   her   discovery   violations.         We 

address each of the two dismissal orders in turn.   Because the superior court's underlying 

discovery orders were not improper and because the superior court thoroughly considered 

whether   Khalsa's   noncompliance   was   willful,   prejudicial   to   defendants,   and   directly 

connected   to   the   imposed   sanction,   along   with   the   availability   of   lesser   alternative 

sanctions, we affirm the superior court's claim-ending and litigation-ending discovery 

sanctions.  We attach as Appendices A and B the superior court's two orders to illustrate 

the   thoroughness      of   the  superior   court's   analysis   and   its   precision   in   tailoring   the 

successive sanctions to address Khalsa's conduct. 

        9        (...continued) 

standards than those of lawyers."). 

        10       Underwriters at Lloyd's London v. The Narrows, 846 P.2d 118, 119 (Alaska 

1993). 

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

                                                   -10-                                              6584
 

----------------------- Page 11-----------------------

        A.	      The July 31, 2008 Sanction Dismissing Khalsa's Injury-Related Claims 
                 And Damages 

                 On July 31, 2008, the   superior court dismissed with prejudice Khalsa's 

injury-related claims and damages, ruling that "[b]ecause of [Khalsa's] willful refusal to 

sign medical record releases after the court clearly ordered her to do so, [she] may not 

present evidence of her physical injuries or medical expenses."                  We conclude that the 

superior court did not abuse its discretion by imposing this claim-ending sanction against 
Khalsa.    Alaska Civil Rule 3712 "affords trial courts broad power to enforce discovery 

orders by the use of sanctions"13 up to and including dismissal of a party's claim because 

"outright failures to respond to discovery halt the case development process dead in its 
tracks,   and   threaten   the   underpinnings   of   the   discovery   system."14      While   we   have 

        12	      In relevant part, Civil Rule 37(b)(2) provides: 

                 If   a   party   .   .   .   fails   to   obey   an   order   to   provide   or   permit 
                 discovery, . . . the court in which the action is pending may 
                 make   such   orders   in   regard   to   the   failure   as   are   just,   and 
                 among others the following: 

                         . . . . 

                         (B)     An order refusing to allow the disobedient party 
                 to   support    or  oppose     designated     claims   or   defenses,    or 
                 prohibiting that party from introducing designated matters in 
                 evidence; 

                         (C)     An order striking out pleadings or parts thereof, 
                 or staying further proceedings until the order is obeyed, or 
                 dismissing the action or proceeding or any part thereof, or 
                 rendering     a  judgment     by   default   against    the  disobedient 
                 party[.] 

        13       DeNardo v. ABC Inc. RVs Motorhomes, 51 P.3d 919, 922 (Alaska 2002) 

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

        14       Id. at 921 (quoting Hikita v. Nichiro Gyogyo Kaisha, Ltd., 12 P.3d 1169, 

                                                                                           (continued...) 

                                                    -11-	                                             6584
 

----------------------- Page 12-----------------------

cautioned that only "extreme cases" warrant use of litigation-ending sanctions,15 a trial 

court may impose   claim-ending or litigation-ending sanctions if it finds that (1) the non- 

complying      party  willfully  violated   the  order  at  issue;  (2)  non-disclosure    of  that 

information results in prejudice to the opposing party; (3) the dismissal is sufficiently 

related to the violation at issue; and it considers "a reasonable exploration of alternatives 

to dismissal and whether those alternatives would adequately protect the opposing party 
as well as deter other discovery violations."16 

               Khalsa    initially  appears   to  argue  that  the  superior  court's  underlying 

discovery order directing her to sign medical release forms was improper, referring to the 

release forms as "overbroad" and stating that she "advised the court and the defendants 

that the wording in her complaint stated the damages were not inclusive of her injury or 

the trauma she had suffered" and that "if the   defendants wanted her to sign medical 

waivers . . . she would move to amend her complaint to include them."  But the superior 

court expressly found at the January 16, 2008 hearing that Khalsa had "placed . . . both 

her physical condition and her mental condition at issue claiming damages in this case." 

We review a trial court's factual findings for clear error, reversing only when "after a 

thorough review of the record" we are left with a "definite and firm conviction that a 
mistake has been made."17     Here, the superior court made its finding after it asked Khalsa 

if she was making a claim for personal injury, to which Khalsa responded: "Well, you 

        14     (...continued) 

1175 (Alaska 2000)). 

        15     Id. at 922 (citing Hughes, 875 P.2d at 752). 

        16     Id. at 922-23; see also Alaska R. Civ. P. 37(b)(3)(A)-(D). 

        17     Shooshanian v. Dire, 237 P.3d 618, 622 (Alaska 2010) (internal quotation 

marks and citations omitted). 

                                               -12-                                          6584
 

----------------------- Page 13-----------------------

saw my original complaint18. . . and there [are] also resulting injuries from the defective 

design and the request of Lars Chose . . . when trying to figure out what was going on, 

I fell off the ladder."      We cannot say that the record contradicts the superior court's 

finding that Khalsa placed her physical and mental condition at issue. 

                 In   imposing      claim-ending       discovery     sanctions,     the   superior    court 

thoroughly reviewed the Alaska Rules of Civil Procedure and our guidance in Hikita v. 
Nichiro Gyogyo Kaisha, Ltd.19 for the relevant standards governing Rule 37(b) discovery 

sanctions.    The superior court initially found that Khalsa's noncompliance was willful 

because Khalsa was "clearly" and "expressly" ordered at the January 16, 2008 hearing 

to   return   the   signed   medical   release   forms   to   defendants,   or   to   file  objections,   by 

February 4, 2008.  Willfulness in the discovery context is defined as a "conscious intent 
to impede discovery, and not mere delay, inability or good faith resistance."20 

        18       In relevant part, Khalsa's complaint alleged: 

                 As   a  consequence       of  defendant    manufacturer's      defective 
                 design,   and   the   apparent   indication   from   Lars   Chose,   that 
                 plaintiff   must   discover   the   cause   of   the   dripping   herself, 
                 plaintiff   was    caused    to  suffer,   and   continues     to  suffer, 
                 needless pain and suffering from the injuries she sustained 
                 from a fall while inspecting the dripping skylight, and from 
                 repeated operations she has been forced to endure.              Plaintiff 
                 sustained a considerable economic loss due to her injuries, 
                 the    extensive     period    of   time    consumed       by   repeated 
                 operations, and period of recovery time. 

        19       12 P.3d 1169. 

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

have upheld findings of willful noncompliance for continuing violations of a court's 
discovery orders, and also where a pro se plaintiff had "made no effort to comply" with 
discovery orders and demonstrated "no intention of ever complying with the court's 
orders." DeNardo, 51 P.3d at 923-24. 

                                                   -13-                                              6584
 

----------------------- Page 14-----------------------

                 Khalsa disputes the superior court's willfulness determination, maintaining 

that she "did not refuse to sign medical waivers" because "[t]he medical damages were 

not fully developed and not included in her claims, nor [was] the psychological trauma 

she had endured."  But Khalsa's argument ignores the superior court's determination that 

the defendants were entitled to obtain injury-related information, including information 

about     preexisting    conditions     and   other   information     from    Khalsa's    doctors.    After 

arranging for the defendants to prepare medical release forms and send them to Khalsa 

for   her   signature,   the   superior   court   ordered   Khalsa   to   sign   and   mail   the   forms   by 

February 4, 2008, adding that she could file objections but that any objections had to be 

filed with the court by   February   4.          Khalsa did not file any   objections and failed   to 

comply with the superior court's order to sign the releases.  In DeNardo v. ABC Inc. RVs 

Motorhomes, we upheld a litigation-ending discovery sanction imposed against a pro se 

plaintiff   who   refused   to   answer   discovery   requests   as   ordered   by   the   trial   court   on 

grounds that the defendants were not entitled to the information; we affirmed the trial 

court's   willfulness   finding   because   the   trial   court   had   "previously   decided   that   [the 
defendants] had precisely that right" when it ordered the plaintiff to produce discovery.21 

Similarly      here,   Khalsa    simply     ignored    the   superior    court's   express    finding    that 

defendants were entitled to medical information and disobeyed the order to sign the 

medical   releases      or   object   to  their   form.  Instead,   Khalsa   continued       to  insist   that 

defendants did not have a right to her medical history and other medical records. 

                 After considering Khalsa's willfulness, the court determined that Khalsa's 

conduct prejudiced the defendants "by depriving them of any information and evidence 
about her claims and damages."22            The superior court then considered (and ultimately 

         21      51 P.3d at 923. 

        22       Because parties are entitled to discovery of relevant information so that they 

                                                                                            (continued...) 

                                                    -14-                                                 6584 

----------------------- Page 15-----------------------

chose) a lesser alternative sanction23 and precisely tailored the claim-ending sanction to 

Khalsa's noncompliance.24        We conclude that the superior court's claim-ending sanction 

was not an abuse of discretion and attach the superior court's thorough and thoughtful 

order. 

        B.      The October 24, 2008 Sanction Dismissing Khalsa's Suit 

                On October 24, 2008, the superior court dismissed all of Khalsa's remaining 

claims with prejudice, determining that Khalsa's "pattern of excuses and long delays in 

providing   information   for   discovery   culminating   in   her   refusal   to   participate   in   her 

deposition by the defendants was willful refusal to comply with the court's orders during 

the hearings on January 16 and August 15, 2008."  We conclude that the superior court's 

October 24, 2008 order imposing litigation-ending discovery sanctions was not an abuse 

        22      (...continued) 

can prepare for litigation, discovery violations prejudice the opposing party where the 
discovery requested is relevant to the opposing party's case or would have been helpful 
in uncovering information relevant to the opposing party's case.  See id. at 924-25. 

        23      Hikita, 12 P.3d at 1176 (quoting Underwriters at Lloyd's London v. The 

Narrows, 846 P.2d 118, 119, 121 (Alaska 1993)) (requiring that a trial court explore 
"possible and meaningful alternatives to dismissal"   and explaining that if alternative 
sanctions     are  available   a  trial  court  should    consider   these   lesser  sanctions    before 
dismissing the case with prejudice). 

        24      Sanctions imposed under Civil Rule 37(b)(2) must be "sufficiently related" 

to the discovery violation because "[i]f the issues established are not sufficiently related 
to the withheld information, the discovery sanction is considered mere punishment and 
is impermissible."      Lee v. State, 141 P.3d 342, 350 (Alaska 2006) (internal quotation 
marks and citations omitted).         "The test for the validity of a discovery sanction that 
dismisses claims . . . under [Rule 37(b)(2)] is whether these claims . . . 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.' " Hazen v. Municipality of Anchorage, 718 
P.2d 456, 460 (Alaska 1986) (quoting Bachner v. Pearson, 479 P.2d 319, 324 (Alaska 
1970)). 

                                                  -15-                                            6584
 

----------------------- Page 16-----------------------

of discretion because, as in its July 2008 order, the court thoroughly considered all of the 

relevant factors in deciding dismissal was warranted. 

                 Khalsa   initially   argues   that   she   did   not   willfully   fail   to   appear   for   her 
April 25, 2008 deposition.25       The superior court did note that Khalsa "must have realized 

before April 24 that her location . . . would not enable her to arrive in Alaska in time . . . 

[but] she did not bother to notify Defendants until she faxed notice on the morning of 

April 24."     The court specifically stated that it "did not sanction   Ms. Khalsa for her 

conduct with respect to the deposition scheduled for April 25, 2008, but insisted that 

another date for the deposition be set."  Khalsa's first argument, that she did not willfully 

fail to appear at the April deposition, is thus unrelated to the propriety of the sanction 

dismissing her suit. 

                 Khalsa next contends that she did not willfully disobey the superior court's 

order at the September 3, 2008 deposition, arguing that she believed she "was entitled 

to   a  ruling   on   her  request    for  a  protective    order   to  limit   inquiry   into   privileged 

information, and not to be sanctioned with a dismissal of all her claims for exercising her 
rights under the rules."26       She states that she "appeared at the deposition in good faith 

        25       Khalsa relatedly contends that "the defendants and the court attempted to 

force [her] to travel from Arizona to Alaska immediately at her own expense."                      But the 
record reflects that the superior court did not force Khalsa to return to Alaska for her 
deposition.     Instead,   the   superior   court   stated   at   the   January   16,   2008   hearing   that 
Khalsa's deposition should be scheduled for the last week of April or first week of May 
after Khalsa said she would be back in the state in the middle of April.                  Khalsa agreed 
April 25 would work. 

        26       Alaska Civil Rule 30(d)(3) states in relevant part: 

                 At any time during a deposition, on motion of a party or of 
                 the   deponent   and   upon   a   showing   that   the   examination   is 
                 being     conducted      in  bad    faith   or   in  such    manner      as 
                 unreasonably to annoy, embarrass, or oppress the deponent or 
                                                                                           (continued...) 

                                                    -16-                                              6584
 

----------------------- Page 17-----------------------

ready to answer questions" and "would have been ready and willing to continue with the 

deposition after the court's ruling."         Defendants respond by pointing out that "[d]espite 

all   efforts,   including     two   orders    from    the  court   requiring     her  to   attend   her   own 

deposition, the deposition still had not been completed two years after the complaint was 

filed, and only three months before the matter was scheduled to go to trial." 

                 Sanctioning Khalsa for exercising her right under Civil Rule 30(d)(3) to 

suspend her deposition to file for a protective order would certainly be inappropriate, but 

we   cannot   conclude   that   is   what   happened   in   this   case.    We   initially   recognize   that 

Khalsa's   sudden   departure   from   the   September   3,   2008   deposition   was   not   the   first 

deposition-related issue in this litigation.            Besides the missed April 2008 deposition, 

Khalsa      had   already    requested     that  the  superior     court   order   all  proceedings      to  be 

conducted in writing, but her request was denied.  Moreover, the superior court's finding 

that Khalsa did not terminate her deposition in good faith is a factual finding that we 
review for clear error,27 and the trial court is in the best position to evaluate a litigant's 

good faith.28    The superior court explained its finding that Khalsa's "termination of the 

         26	     (...continued) 

                 party,   the   court   .   .   .   may   order   the   officer   conducting   the 
                 examination to cease forthwith from taking the deposition, or 
                 may      limit  the   scope    and    manner     of   the   taking   of   the 
                 deposition   as   provided   in   Rule   26(c).       If   the   order   made 
                 terminates   the   examination,   it   shall   be   resumed   thereafter 
                 only    upon    the   order   of  the   court   in  which    the   action   is 
                 pending.     Upon demand of the objecting party or deponent, 
                 the taking of the deposition shall be suspended for the time 
                 necessary to make a motion for an order. 

         27      Enders v. Parker, 125 P.3d 1027, 1030-31 (Alaska 2005) ("The good faith 

inquiry requires a factual determination of intent that we review for clear error."). 

         28      See Reid v. Williams, 964 P.2d 453, 461-62 (Alaska 1998) (stating that the 

                                                                                              (continued...) 

                                                     -17-	                                               6584
 

----------------------- Page 18-----------------------

deposition within a few minutes after it started was not a good faith application of Civil 

Rule 30(d)(3), but instead was an attempt to avoid the discovery process or to manipulate 

the court and parties for Ms. Khalsa's own convenience": 

                 On September 3, Ms. Khalsa left within fifteen minutes after 
                 she arrived.    The transcript of the deposition shows that she 
                 arrived carrying the notice of termination of the deposition 
                 and the motion for an order limiting the scope and manner of 
                 deposition.    Counsel for Defendant Stein had asked only a 
                 few questions before she produced her documents and walked 
                 out.  Ms. Khalsa's arrival with the two documents suggest 
                 that she at best, was prepared to walk out of the deposition if 
                 she   felt   uncomfortable   and   at   worst,   had   no   intention   of 
                 answering Defendants' deposition questions to the best of her 
                 ability. 

The record does not suggest that the superior court's factual findings regarding Khalsa's 

willfulness are clearly erroneous. 

                 After     determining       that    Khalsa's      conduct     amounted        to   willful 

noncompliance,   the       superior   court   clearly   and   thoroughly     discussed   the   remaining 
sanction   factors,   repeatedly   citing   to   this   court's   case   law.29 The   court   found   that 

Khalsa's conduct had already prejudiced defendants and was continuing to do so,30 and 

that there was a clear nexus between Khalsa's refusal to be deposed and a litigation- 

        28       (...continued) 

superior court is "in the best position to determine whether a party's behavior was . . . in 
bad faith"); see also Shooshanian v. Dire, 237 P.3d 618, 626 (Alaska 2010) (explaining 
that this court will "give great deference to the trial court's credibility findings"). 

        29      E.g., Lee v. State, 141 P.3d 342 (Alaska 2006); DeNardo v. ABC Inc. RVs 

Motorhomes, 51 P.3d 919 (Alaska 2002);Hikita v. Nichiro Gyogyo Kaisha, Ltd., 12 P.3d 
1169 (Alaska 2000). 

        30       See supra note 22. 

                                                   -18-                                              6584
 

----------------------- Page 19-----------------------

ending     sanction.31    It  stated   that  "[Khalsa]     is  the  plaintiff  who    made    the   factual 

allegations in the complaint and brought claims for damages against Defendants," adding 

that "[s]he clearly has knowledge and information that Defendants cannot discover other 

than through a deposition of the plaintiff, and without the information, Defendants have 

no way to form a reasonable defense against her claims."                   Finally, the superior court 
determined after careful consideration that no lesser sanction was available,32 citing the 

many previous steps it had taken to urge Khalsa to comply with discovery - giving her 

extra time to produce initial disclosures, setting extended deadlines for her to respond to 

what   should   have   been   extra-judicial   discovery   matters,   allowing   her   several   extra 

months   to   return   to   Alaska   before   ordering   her   to   respond   to   defendants'   discovery 

requests, denying defendants' initial request for dismissal of all of her claims, and not 

sanctioning her for her conduct regarding the April 23, 2008 deposition.                    The superior 
court did not abuse its discretion in imposing litigation-ending discovery sanctions.33 

        31       See supra note 24. 

        32       See supra note 23; see also DeNardo, 51 P.3d at 926-27 (affirming that the 

superior court undertook a proper "reasonable exploration" of alternatives where it first 
imposed a monetary sanction, then issued a stay, and finally dismissed the case, stating 
that lesser sanctions were unsuccessful). 

        33       The   superior   court   based   its   litigation-ending   sanction   specifically      on 

Khalsa's   failure   to   "meaningfully   participate   in   her   deposition."        But   because   the 
superior court also cited Khalsa's "violations of discovery rules, refusal to comply with 
the court's orders, delays, and general lack of cooperation" we briefly address Khalsa's 
arguments   that   (1)   she   did   not   willfully   refuse   to   respond   to   defendants'   discovery 
requests because the information was not within her "possession, custody or control"; 
and (2) she did not willfully refuse to provide discovery because she gave defendants six 
disks of information. 

                 Khalsa first argues that where failure to comply is due to inability rather 
than willfulness, dismissal is not an appropriate sanction.               But under Civil Rule 34, a 
party may have "control" of documents even where they are presently in the "possession" 
                                                                                           (continued...) 

                                                   -19-                                              6584
 

----------------------- Page 20-----------------------

        C.       Khalsa's Additional Arguments 

                 Khalsa alleges that "the trial court's conduct . . . appeared to be an open 

display of prejudice and bias toward the pro se plaintiff."                We have reminded pro se 
litigants   that   "judicial   bias   should   not   be  inferred   merely   from    adverse    rulings."34 

Nothing in the record points to bias by the superior court.  Indeed, the record reveals that 

the superior court made repeated efforts to instruct and advise Khalsa of her obligations 

under the Alaska Rules of Civil Procedure. 

        33       (...continued) 

of another.    See Hawes Firearms Co. v. Edwards, 634 P.2d 377, 380 n.6 (Alaska 1981) 
(affirming a superior court's finding that plaintiff had willfully disobeyed a production 
order and explaining that "[t]he fact that these materials may have been in the possession 
of its advertising agency does not negate the fact that [plaintiff] had 'control' of the 
items, within the meaning of Rule 34") (citations omitted).   And "[a] party cannot satisfy 
a   discovery   request   by   claiming   that   it   is   'attempting   to   ascertain   the   answers,'   and 
putting   off   its   obligation   to   a   later   date." Hikita,   12   P.3d   at   1175. Thus,   Khalsa's 
contention that she could not respond to discovery because she was in Arizona while her 
documents were in Alaska is not persuasive, especially because this excuse lasted for 
approximately seven months. 

                 Khalsa also claims that she did not willfully refuse to provide discovery 
because she gave defendants six disks of information.                 Khalsa gave defendants these 
disks just before the discovery status hearing.           But the fact that disclosure of requested 
information "was eventually accomplished" does not mean that the sanction may not 
stand    -    "[f]inal   production    is  not  determinative"      because    Civil   Rule   37   permits 
sanctions when a party "fails to obey an order." Hawes, 634 P.2d at 380 (explaining that 
"[t]he    ultimate,   and   reluctant,   production     of  documents,      more   than   a  year   after  a 
legitimate request does not absolve [a party] of the charge that it willfully failed to obey 
a   valid   court   order")   (citations   omitted).  The   superior   court   recognized   that   Khalsa 
eventually produced these disks and responded to defendants' discovery requests but this 
does not cure her initial failure to obey a valid court order. 

        34       Tillmon v. Tillmon, 189 P.3d 1022, 1027 n.13 (Alaska 2008) (rejecting pro 

se appellant's argument that the trial court was biased against him because it denied his 
request for shared custody); see also Olivit v. City & Borough of Juneau, 171 P.3d 1137, 
1147 (Alaska 2007) (explaining that a superior court's dismissal of a pro se plaintiff's 
claims on summary judgment "does not imply partiality or bias"). 

                                                   -20-                                              6584
 

----------------------- Page 21-----------------------

                Khalsa also asserts that the superior court's order denying her March 31, 

2008 request to postpone trial was error.           The superior court determined that Khalsa's 

request to move the trial to the week of November 25, 2008 was moot in light of the 

superior court's postponing the trial until November 17, 2008.  Khalsa herself agreed to 

the November 17, 2008 trial date and in fact expressed a desire to have the trial sooner. 

        D.      Attorney's Fees 

                On December 8, 2008, the superior court awarded 50% of each defendant's 

attorney's fees and costs, ordering enhanced attorney's fees because although "plaintiff 

may have had a valid claim based upon the allegations in the complaint . . . [she] did not 

disclose information in compliance with the discovery requirements." The superior court 

added that "[t]he nondisclosure was more than a pro se party being unfamiliar with the 

legal   process"   and   concluded   that   "[a]fter   the   repeated   admonitions   of   this   court   to 

comply . . . [Khalsa's] failure to comply was unreasonable, a conscious act and in bad 

faith."  Khalsa argues in her reply brief that "the award of enhanced attorney fees as an 

additional sanction against the plaintiff, in addition to litigation ending sanctions, was 

in the nature of plain error."       Because Khalsa failed to challenge the superior court's 

attorney's fees award in her points on appeal, did not brief the issue in her opening brief, 

and does not cite any legal authority for her argument, the question of attorney's fees is 
not properly before us.35 

                We note that Alaska Civil Rule 82(b)(3) grants the trial court discretion to 

award fees in excess of the rule's schedule and we will not reverse a fee award unless the 

        35      See Braun v. Alaska Commercial Fishing & Agric. Bank, 816 P.2d 140, 145 

(Alaska 1991) ("Because the issue was absent from his points on appeal, and because the 
issue was insufficiently briefed in his opening brief, [appellant] has abandoned it."); see 
also Peterson v. Ek, 93 P.3d 458, 464 n.9 (Alaska 2004) ("[E]ven when a pro se litigant 
is involved, an argument is considered waived when the party 'cites no authority and fails 
to provide a legal theory' for his or her argument.") (quoting A.H. v. W.P., 896 P.2d 240, 
243 (Alaska 1995)). 

                                                  -21-                                             6584
 

----------------------- Page 22-----------------------

trial court has abused that discretion.36       A trial court may award full attorney's fees if it 

finds that a party engages in vexatious and bad faith litigation,37 but an enhanced award 

of   less   than   full   fees   does   not   require   such   conduct.38 In   light   of   the   considerable 

discretion given to trial courts in this area,39 we cannot conclude that the superior court's 

enhanced attorney's fee award was improper in these circumstances. 

V.      CONCLUSION 

                We     AFFIRM       the  superior    court's   claim-ending     and   litigation-ending 

discovery sanctions. 

        36      Nielson   v.   Benton,   957   P.2d   971,   973   (Alaska   1998)   (internal   citations 

omitted) (determining that a trial court's award of 50% of actual attorney's fees was not 
an abuse of discretion where the trial court found that a litigant brought a weak claim, 
pursued the weak claim for an extended period, and was overly litigious). 

        37      Garrison      v.  Dixon,    19   P.3d   1229,    1234   (Alaska     2001);   Alaska     R. 

Civ. P. 82(b)(3)(G). 

        38      Cole v. Bartels, 4 P.3d 956, 960-61 (Alaska 2000) (concluding that a trial 

court's enhancement to 75% because a party increased the complexity of the case and 
presented unreasonable claims and defenses was not an abuse of discretion). 

        39      See Nielson, 957 P.2d at 973. 

                                                  -22-                                             6584
 

----------------------- Page 23-----------------------

               IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
 

                      FOURTH JUDICIAL DISTRICT AT FAIRBANKS
 

 Shabd-Sangeet Khalsa,                            ) 
                                                  )
 
                         Plaintiff,                )
 
         v.                                       )
 
                                                  )
 
Lars Chose, Tamasine Drisdale,                     ) 
 
Gordon Stein, Mandala Custom                       )
 
Homes                                             )
 
                                                  )
 
                         Defendants.               )
 
                                                  )
 
Case No. 4FA-06-1234CI 

                         MEMORANDUM DECISION AND ORDER 

I.       INTRODUCTION 

                 The parties have filed several motions.   Plaintiff Shabd-Sangeet Khalsa is a 

pro se  litigant.    Defendants Lars Chose, Gordon Stein, and Mandala Custom Homes are 

now represented by lawyers, but Tamasine Drisdale remainspro se.  Defendants complain 

that   Ms.   Khalsa   has   not   cooperated   with   discovery   required   under   the   Rules   of   Civil 

Procedure. 

II.      FACTS 

                 Ms.   Khalsa   entered   a   contract   to   purchase   a   manufactured   home   from 

Mandala Custom Homes, which is a Canadian business located in British Columbia.  On 

August 26, 2003, a Mandala Custom Home kit was delivered to Ms. Khalsa's property in 
Fairbanks.1     Lars Chose, who is an owner of Mandala Homes, personally supervised the 

         1 
                 Complaint, at 3 (Feb. 27, 2006). 

                                         Appendix A - 1 of 18                                           6584 

----------------------- Page 24-----------------------

initial assembly of the house.    Ms. Khalsa has alleged that when materials in the kit were 

inventoried, she and Mr. Chose discovered that some items were either missing or defective. 

Nonetheless, they proceeded with assembly.            Ms. Khalsa asserts that she assumed the 
missing and defective items would be corrected.2  Ms. Khalsa also claims that mistakes were 

made during assembly of the house.3 

               In February 2004, Ms. Khalsa moved into the house.             Problems with the 

skylight immediately became apparent, and Ms. Khalsa contacted Lars Chose.  Water was 

dripping from the skylight, which was approximately 18 feet above floor level. Ms. Khalsa 

alleges that Mr. Chose asked her to examine the skylight in order to diagnose the problem. 

While Ms. Khalsa was on a ladder inspecting the skylight, she fell and severely injured her 
left arm.4  Ms. Khalsa developed complications, which required additional surgery.  She 

alleges that she has continued to experience pain and disability due to the injuries caused 

by the fall. 

               Ms. Khalsa alleges that by February 2005, Mandala Homes had redesigned 

the roof for future Mandala kits.     She alleges that Mandala Homes and Lars Chose have 

refused to make necessary repairs or renovations to render her roof functional in the cold 
Fairbanks climate.5    Lars Chose asserts that the roof design was changed for reasons of 

greater ease of shipping and ecological sustainability of the newer design.6  Defendants deny 

        2      Complaint, at 3-4. 

        3      Complaint, at 5. 

        4      Complaint, at 6. 

        5      Complaint, at 7, 9. 

        6      Defendant Lars Chose Response [Answer]  XIV (May 3, 2007). 

                                     Appendix A - 2 of 18                                      6584 

----------------------- Page 25-----------------------

the existence of design defects in the roof for Ms. Khalsa's house.7 

                 Ms. Khalsa's pro se  complaint claims breach of contract, breach of express 
warranty with regard to defects, and breach of implied warranty for a particular purpose.8 

                                                                                                      9 
She claims damages in excess of $250,000 plus incidental and consequential damages.   She 

claims she has sustained considerable economic loss due to her injuries and the extensive 
time required for multiple surgeries and rehabilitation.10           She appears to include the cost of 

medical treatment within her claim for consequential damages.11 

                 Ms. Khalsa filed her pro se complaint on February 27, 2006.                    Defendant 

Gordon Stein was represented by counsel, and filed an answer in August 2006.  All of the 

other   parties   were pro   se    through   2007.    In   December   2007,   an   attorney   entered   an 

appearance for Lars Chose and Mandala Custom Homes.  Tamasine  Drisdale remainspro 

se along with Ms. Khalsa. 

                 On   July   12,   2007,   a   hearing   on   discovery   issues   was   held.   The   court 

explained   Civil   Rule   26   and   the   procedures   and   various   requirements   for   discovery, 
including procedures and the concepts underlying discovery to Ms. Khalsa.12  The court told 

        7        Def. Lars Chose Response [Answer]  XIV (May 3, 2007); Gordon Stein's 

Answer, at 3,  19 (Aug. 22, 2006). 

        8        Complaint (Feb. 27, 2006). 

        9        Complaint at 13. 

         10      Complaint, at 11,  XXV. 

         11      See    Plaintiff's   Request   to   Reschedule      Trial   and   Discovery,     at   2,     3 

(March   31,   2008)   (appears   to   expect   defendants   [to   pay]   her   medical   expenses   and 
associated travel costs). 

         12      CD 4FA4107-76, 04:30:31 - 04:57:48 (July 12, 2007). 

                                         Appendix A - 3 of 18                                            6584 

----------------------- Page 26-----------------------

the parties that initial disclosures should be completed by August 15, 2007.13                  Plaintiff 

Khalsa did not send her initial disclosures to Defendants until January 15, 2008, but other 
parties were similarly late with initial disclosures.14          None of the parties have met the 

deadline for expert witness lists. Defendants filed notices that they were unable to file a list 

of expert witnesses without receiving discovery materials from Ms. Khalsa or being able 
to   take   her   deposition.15  Ms.   Khalsa   has   filed   neither   an   expert   witness   list   nor   an 

explanation for its lateness. 

                The pending motions currently before the court include (a) defendants' motion 

for protective order prohibiting the introduction of evidence of subsequent remedial actions; 

(b)   Plaintiff's motion for leave to file late initial disclosures; (c) Defendant Tamasine 

Drisdale's Motion for Misjoinder; (d) Defendant's motion for sanctions against plaintiff for 

discovery violations. 

III.	   DISCUSSION 

A.	     Motion by Defendants Lars Chose and Mandala Custom Homes for Protective Order 
        Excluding Evidence Regarding Remedial Measures 

                In February 2008, Defendants moved for a protective order under Alaska 

Evidence Rule 407 excluding evidence of remedial measures.  Alaska Evidence Rule 407 

states: 

                        When after an event, measures are taken which, if taken 
                previously, would have made the event less likely to occur, 
                evidence of the subsequent measures is not admissible to prove 
                negligence or culpable conduct in connection with the event. 
                This    rule   does   not  require   the   exclusion    of  evidence    of 
                subsequent measures when offered for another purpose, such as 
                impeachment or, if controverted, proving ownership, control, 

        13	     CD 4FA4107-76, 04:56:10 (July 12, 2007). 

        14	     See CD 4FA4408-4, 09:47:49 - 09:50:49 (Jan. 16, 2008). 

        15      Joinder in Notice to Court (May 7, 2008); Notice to Court (May 1, 2008). 

                                        Appendix A - 4 of 18                                          6584 

----------------------- Page 27-----------------------

                 feasibility of precautionary measures, or defective condition in 
                 a products liability action.16 

The policy behind this rule is explained in the Evidence Rules Commentary for Evidence 

Rule 407.     Evidence of subsequent remedial measures may not be introduced to prove 
negligence or as admissions of fault.17 

                 Ms. Khalsa's complaint, however, does not raise claims of negligence.  Ms. 

Khalsa's primary claims regarding design and construction defects are based on contract 

and   express   or   implied   warranties.     Her   bodily   injuries   are   among   the   consequential 

damages she claims were proximately caused by the alleged defective design of the roof and 

skylight.  Her claim that her Mandala Custom Home had a defective roof/skylight design 

is essentially a products liability action.        Evidence of subsequent remedial measures may 

be   admissible   when   the   parties   disagree   over   whether   the   product   was   defective   in   a 
products liability action.18     The parties in this case disagree over whether the design and/or 

construction of Ms. Khalsa's Mandala Home were defective. 

                 In their motion for a protective order, Defendants list five broad categories of 
evidence   they   believe   should   be  excluded.19       The   court   declines   to   exclude   evidence 

described in such broad terms.  Nonetheless, Ms. Khalsa, who ispro se , should familiarize 

herself with Evidence Rule 407 and the corresponding Commentary.                       While evidence of 

design changes in Mandala houses after Ms. Khalsa experienced problems in the extreme 

Fairbanks winter climate are not admissible at trial as proof of negligence, the evidence may 

be   admissible   if   there   are   controverted   issues   such   as   feasibility   of   repairs   to   correct 

         16      Alaska R. Evid. 407. 

         17      Alaska R. Evid. Commentary 407. 

         18 
                 See Alaska R. Evid. 407. 
         19      Mem. Protect. Order, at 2-3 (Feb. 7, 2008). 

                                         Appendix A - 5 of 18                                             6584 

----------------------- Page 28-----------------------

problems with Ms. Khalsa's house, existence of a design defect, or whether Defendants 

breached the contract by failing to repair the roof and skylight. 

               Therefore, the court denies Defendants' motion to exclude evidence, but 

Defendants may raise Evidence Rule 407 issues again during trial with respect to specific 

issues and evidence. 

B.      Plaintiff's Motion for leave to file late initial disclosures 

               On January 15, 2008, Plaintiff submitted her initial disclosures to the court as 

well as the other parties. Under Civil Rule 26(a)(1), a party shall provide the required initial 

disclosures to the other parties without waiting for a formal request.  Plaintiff's certificate 

of distribution indicates she sent copies to all of the parties.   Normally, initial disclosures 

and other discovery materials are not filed with the court. 

               This court ordered the parties to complete initial disclosures by August 15, 
2007.20  Another pro se litigant, Tamasine Drisdale, filed her initial disclosures with the 

court on November 8, 2007.  Apparently Lars Chose did not make initial disclosures until 
after he obtained counsel in December 2007.21        Plaintiff's initial disclosures, lodged on 

January 15, 2008, are five months late. Discovery has been contentious with allegations of 

Plaintiff's nondisclosure   of required discovery and lack of cooperation with discovery 

requests.  Filing of Plaintiff's initial disclosures provides evidence related to discovery 

issues raised by Defendants, such as the lateness of initial disclosures and whether the 

disclosures satisfied Civil Rule 26(a).    For this reason and because Plaintiff is pro se , the 

court accepts Plaintiff's filing of her initial disclosures with the court. 

       20      Order (July 18, 2007). 

       21      See CD 4FA4408-4, 09:47:49 - 09:50:49 (Jan. 16, 2008). 

                                    Appendix A - 6 of 18                                     6584 

----------------------- Page 29-----------------------

C.      Plaintiff's Request, to Reschedule Trial and Discovery, is Moot 

                On April 1, 2008, Plaintiff requested that trial be rescheduled to November 25, 

2008 and that discovery be extended until June 25, 2008.  On January 30, 2008, however, 

this court issued an amended civil pretrial order scheduling the six-day trial to begin the 

week of November 17, 2008.           November 17 is only one week earlier than her requested 

November 25, 2008.         The court's busy calendar, with many other scheduled trials and 

hearings, does not permit rescheduling this trial one week later.              The amended pretrial 

schedule states the close of discovery as July 21, 2008, which is almost a month after the 

date requested by Ms. Khalsa.        Therefore, Plaintiff's request is denied. 

D.      Defendant Tamasine Drisdale's Motion for Misjoinder is denied 

                Defendant   Tamasine        Drisdale   has   requested   that   she  be  removed     as  a 

defendant based on misjoinder because she alleges she lacked knowledge and responsibility 

for   the   design,   construction,   and   representations   made   to   the   plaintiff. However,   Ms. 

Drisdale admits to being a 35 percent partner in Mandala Custom Homes until February 

2004.  Khalsa entered a contract for the purchase of her home in June 2003 and her home 

was delivered in August 2003. Drisdale may be jointly liable with Lars Chose and Mandala 

for actions taken during the time she remained a partner.            Therefore, the court denies Ms. 

Drisdale's motion for misjoinder. 

E.      Discovery disputes and Defendants' Motion for Sanctions Against Plaintiff 

        1.      Discovery issues addressed during January 16, 2008 hearing 

                During the hearing on January 16, 2008, the court explained to Ms. Khalsa the 
importance of full disclosure of the evidence supporting her claim.22  The court explained 

that she was required to sign release forms for Defendants to obtain her medical records.23 

        22      Hearing, CD4FA4408-4, 09:50:33 - 09:51:53 (Jan. 16, 2008). 

        23      Hearing, CD4FA4408-4, 09:54:18 - 09:55:20. 

                                       Appendix A - 7 of 18                                          6584 

----------------------- Page 30-----------------------

Her claim regarding injuries due to her fall has placed her physical condition at issue.  The 

court informed her that the defendants were entitled to know about pre-existing conditions 

through her medical records, not just treatment of injuries she has claimed in the current 
lawsuit.24 

                The court ordered Ms. Khalsa to make herself available in Fairbanks for 

Defendants to take her deposition during the last week in April or the first week in May, and 

Plaintiff orally agreed that this time period was acceptable because she expected to be [in] 
Alaska starting near the beginning of April 2008.25          During the hearing, the court expressly 

found that Ms. Khalsa's claims placed her mental as well as physical condition at issue in 

this case, and ordered her to submit to an Independent Medical Evaluation (IME) and a 
psychological evaluation.26 

                The court ordered Mr. Kramer, attorney for Lars Chose and Mandala Custom 

Homes,   to   submit   a   written   order   to   the   court   containing   the   orders   discussed   in   the 
hearing.27   Mr. Kramer lodged an order the following day.  The proposed order contained 

the items ordered orally during the January 16, 2008 hearing.  Although the written order 

submitted by Mr. Kramer was never processed, the court's oral orders during the hearing 

remained effective. 

        24      Hearing, CD4FA4408-4, 09:55:17 - :32; 10:13:56 - 10:14:09. 

        25      Hearing, CD4FA4408-4, 09:58:07 - 09:59:50; 10:13:44 - :56. 

        26      Hearing, CD4FA4408-4, 10:10:14 - :48; 10:42:46 - 10:43:35; 10:45:49 - 

10:46:12. 

        27      Hearing, CD4FA4408-4, 10:46:12 - :46. 

                                        Appendix A - 8 of 18                                          6584 

----------------------- Page 31-----------------------

                 As   discussed   during   the   hearing,   the   court   issued   a   new   Pre-Trial   Order 

scheduling discovery to close July 30, 2008 and a six-day jury trial to start November 17, 
2008.28 

                 During the hearing, the court ordered the plaintiff to submit to an independent 

psychological   evaluation   and   an   IME,   both   to   be   arranged   by   Defendants.       The   court 

ordered     Ms.   Khalsa     to  deliver   signed   medical     record   releases   to  all  defendants     by 

February 4, 2008.       The defendants scheduled Plaintiff's deposition for April 25, 2008 in 

Fairbanks. 

                 Ms. Khalsa has failed to comply with any of the court's orders from the 

January 2006 hearing.  She has not signed the medical release forms.  She did not appear 

in Fairbanks for her deposition.  She has not cooperated for the scheduling of an IME. 

         2.      Defendants' Motion for Sanctions against Plaintiff for Discovery Violations 

                 On   March   13,   2008,   Defendants   filed   a   motion   for   sanctions   that   would 
dismiss   Plaintiff's   case   pursuant   to   Civil   Rule   37(b)(2).29    Alternatively,   Defendants 

requested that the court order Ms. Khalsa to comply with the orders the court issued during 

the January 16, 2008 hearing and to pay Defendants' costs and attorney's fees for bringing 
this motion for sanctions.30      Defendants suggest that Plaintiff be informed that her case will 

be dismissed if she fails to comply with court orders.31 

         28      Amended Civil Pretrial Order (Jan. 30, 2008).
 

         29
     On March 17, 2008, Lars Chose and Mandala Custom Homes joined Stein's 

motion for sanctions. 

        30       Def. Mtn. Sanctions, at 5-6 (March 13, 2008). 

        31       Id. 

                                         Appendix A - 9 of 18                                             6584 

----------------------- Page 32-----------------------

                 Ms. Khalsa contends that she has not refused to comply, but is merely unable 
to comply until she returns to Alaska.32        She asserts that most of her documents have been 

stored in Alaska, while she has been living in Arizona or traveling elsewhere in the United 

States and other countries for treatment of the injuries she suffered in the fall from the 

ladder.  Ms. Khalsa insists that she will not be in possession and control of the documents 

or her house until she returns to Alaska.            She claims that she should be excused from 

providing timely discovery based on her assertion that Defendants knew she would be 
travelling outside of Alaska without access to the documents required for discovery.33 

                 During the January 2008 hearing, which she attended telephonically, she 

stated that she would be in Alaska by the beginning of April. She insisted that if Defendants 

wanted     to  take   her  deposition    before   April,   they   would    have   to  pay   her   expenses. 

Accordingly,   Defendants   scheduled   the   deposition   for   April   25,   2008.        On   April   23, 

however, only two days before her scheduled deposition, she notified Defendants that she 

would not be in Alaska to attend her deposition.             She refused to travel to Alaska for her 

deposition on April 25 because the defendants had not provided any money to cover her 
transportation to Alaska and other travel expenses.34 

                 In her April 1, 2008 Opposition to Sanctions, Ms. Khalsa admits she received, 
but   did   not   sign,   the   medical   records   release   forms   that   Defendants   sent   her.35 She 

complains that the forms did not specify particular doctors and did not limit the request for 
medical records to medical treatment of her injuries sustained in this case.36                 During the 

        32       Opp. to Sanctions (April 1, 2008). 

        33       Opp. to Sanctions  6 (April 1, 2008). 

        34       Def. Supp. Re: Sanctions, Exh. B (April 28, 2008). 

        35       Opp to Sanctions, at 8,  15. 

        36       Opp. to Sanctions, at 7-8 (April 1, 2008). 

                                        Appendix A - 10 of 18                                           6584 

----------------------- Page 33-----------------------

January 16, 2008 hearing, however, the court carefully explained to Ms. Khalsa that if she 

is claiming damages for physical injuries, the defendants are entitled to examine her medical 
records for relevant pre-existing conditions.37    The court ordered her to file completed 

releases by February 4, 2008.38 

               The court also ordered Ms. Khalsa to submit to an IME and psychological 
evaluation pursuant to Civil Rule 35.39   The defendants assert that without the releases for 

medical records, they cannot schedule an IME.        They point out that the IME physician 

needs to review Ms. Khalsa's medical records before the IME.   There is still no indication 

that Ms. Khalsa has ever signed the medical release forms. 

               With respect to an independent psychological evaluation, Ms. Khalsa argues 
that she has not placed her mental condition at issue.40   Her complaint states in Paragraph 

XXXII: 

                      As a consequence of defendant manufacturer's breach of 
               warranty of fitness for a particular purpose, free from defects in 
               materials   and   workmanship,     free  from  defective   design, 
               plaintiff has incurred damages in excess of $250,000 which is 
               not    inclusive    of   continuing     irreparable     physical, 
               psychological, and emotional injury from more than two 
               years    of  unfulfilled  promises    from    Lars   Chose    that 
               Mandala Custom Homes would make things right.41 

       37      Hearing, CD4FA4408-4, 09:55:17 - :32; 10:13:56 - 10:14:09. 

       38      Hearing, CD4FA4408-4, 10:41:14. 

       39      Hearing, CD4FA4408-4, 10:42:46 - 10:46:46. 

       40      Opp. at 11 (April   1, 2001). 

       41      Complaint, at 12-13,  XXXII (emphasis added). 

                                   Appendix A - 11 of 18                                   6584 

----------------------- Page 34-----------------------

She insists she has not requested damages because of a mental condition.42                  Ms. Khalsa's 

request for relief includes $250,000 in "general damages" plus additional "incidental and 
consequential damages."43 

                 The complaint describes her fall and resulting physical injuries, for which she 

seems to hold Defendants responsible.   Yet, Ms. Khalsa has not provided any information 

to defendants about her medical treatment or medical expenses so that the defendants can 

determine what she is claiming in this regard. Even the copy of her initial disclosures which 

she filed with the court does not contain any medical bills or similar indications of the 

amount      of   consequential      damages     she   is   claiming    for   physical    injuries.    Civil 

Rule 26(a)(1)(G) requires a plaintiff to include in initial disclosures, 

                  (G) all categories of damages claimed by the disclosing party, 
                 and a computation of each category if special damages, making 
                 available   for   inspection   and   copying   as   under   Rule   34   the 
                 documents   or   other   evidentiary   material,   not   privileged   or 
                 protected from   disclosure, on which such claims are based, 
                 including materials bearing on the nature and extent of injuries 
                 suffered.44 

The initial disclosures that Ms. Khalsa filed with the court,  Defendants complain that they 

have been unable to obtain any information from her about her damages. 

                 Defendants also assert that Ms. Khalsa has not responded to their requests for 

her to arrange with her tenants to make the house available for inspection by the defendants' 
engineer.45    It has been impossible for the defendants to make their own determination of 

the amount of her damages for repair of the house. 

        42       Opp. at 11. 

        43       Complaint, at 13. 

        44       Alaska R. Civ. P. 26(a)(1)(G). 

        45       Reply, at 3 (April 1, 2001). 

                                        Appendix A - 12 of 18                                           6584 

----------------------- Page 35-----------------------

                 Defendants sent her Requests for Admission, Production, and Interrogatories 
on January 24, 2008, but as of April 1, 2008, she had not responded in any way.46                      Under 

Civil   Rule 37(d), failure to respond to interrogatories or requests for inspection is not 

excused on the ground that the discovery sought is objectionable unless the party failing to 

act has a pending motion for a protective order as provided by Civil Rule 26(c). Ms. Khalsa 

does not have a pending motion for protective order. 

                 Ms.  Khalsa   is   pursuing   this   case   without  an   attorney.     Once   a   court   has 

advised   a pro   se   litigant   of   the   proper   procedures   for   the   action   she   is   attempting   to 

accomplish and informed her of specific defects in pleadings, thepro se litigant must make 
good faith efforts to comply.47        The Alaska Supreme Court has stated that although pro se 

litigants are held to less stringent standard procedural requirements where lack of familiarity 

underlies litigants' errors, 

                 [t]he [pro se ] litigant is expected to make a good faith attempt 
                 to   comply   with   judicial   procedures   and   to   acquire   general 
                 familiarity     with   and   attempt    to  comply     with   the   rules  of 
                 procedure - absent this   effort, he or she may be denied the 
                 leniency otherwise affordedpro se litigants.48 

Ms. Khalsa appears to have a general familiarity with the rules of procedure.  If Ms. Khalsa 

desires to pursue her lawsuit, she must respond to discovery requests in accordance with 

Rules 26 - 37 in the Alaska Rules of Civil Procedure. 

                 The Alaska Supreme Court has stated that "[a] party cannot satisfy a discovery 

request by claiming that it is 'attempting to ascertain   the   answers,' and putting off its 

         46      Reply, at 2 (April 1, 2008). 

         47      See Kaiser v. Sakata, 40 P.3d 800, 803-804 (Alaska 2002). 

         48      Kaiser, 40 P.3d at 803. 

                                         Appendix A - 13 of 18                                             6584 

----------------------- Page 36-----------------------

obligation to a later date."49    Thus, Ms. Khalsa's protestations for many months that she 

cannot provide documents or answer interrogatories or arrange for inspection of the house 

by Defendants' experts because she is not in Alaska is not responsive to discovery requests. 

"[F]ailure to respond to a discovery request   'strikes at the very heart of the discovery 
system,'" which is intended to be self-executing.50         Plaintiff's failure to respond provides 

the defendants with no evidence and "halt[s] the case development process dead in its 
tracks."51 

                If a party fails to obey a discovery order issued by the court or fails to serve 

answers or objections to interrogatories or to serve a written response to a request for 

inspection under Rule 34, the court may take any action authorized under sections (A), (B), 
and (C) of Rule 37(b)(2).52       Prior to making an order under sections (A), (B), or (C) of 

subparagraph (b)(2), the court shall consider the following: 

                        (A) the nature of the violation, including the willfulness 
                of the conduct and the materiality of the information that the 
                party failed to disclose; 

                        (B)  the prejudice to the opposing party; 

                        (C)  the relationship between the information the party 
                failed to disclose and the proposed sanction; 

                        (D) whether a lesser sanction would adequately protect 
                the opposing party and deter other discovery violations; and 

                        (E)   other factors deemed appropriate by the court or 
                required by law. 

        49      Hikita v. Nichiro Gyogyo Kaisha, Ltd., 12 P.3d 1169, 1175 (Alaska 2001). 

        50      Hikita,   12   P.3d   at   1175,  quoting  7   James   Wm.   Moore   et   al., Moore's 

Federal Practice  37,90, at 37-141 (3d ed. 1997). 

        51      Id. 

        52      Alaska R. Civ. P. 37(b), (d). 

                                      Appendix A - 14 of 18                                         6584 

----------------------- Page 37-----------------------

                       The court shall not make an order that has the effect of 
               establishing or dismissing a claim or defense or determining a 
               central issue in the litigation unless the court finds that the party 
               acted willfully.53 

Among the Rule 37 sanctions the court may issue when appropriate, are orders establishing 

facts, prohibiting the disobedient party from introducing evidence in support of designated 
claims, or dismissing all or part of an action against the disobedient party.54     Additionally, 

"the court shall" require the disobedient party to pay the propounding party's attorney's fees 

and other reasonable expenses caused by the disobedient party's failure, unless the failure 
was substantially justified.55 

               Under Alaska law, it is "clear that a trial court may not issue litigation-ending 
sanctions without first exploring 'possible and meaningful alternatives to dismissal.'"56  "If 

meaningful alternative sanctions are available, the trial court must ordinarily impose these 
lesser sanctions rather than a dismissal with prejudice."57        Only if the court's "careful 

consideration of lesser alternative sanctions convinces it that no sanction short of dismissal 

is appropriate and if the court fully explains its reasons for reaching this conclusion," can 
the court issue litigation-ending sanctions.58 

       53      Alaska R. Civ. P. 37(b)(3). 

       54      Alaska R. Civ. P. 37(b)(2), (d). 

       55      Alaska R. Civ. P. 37(b)(2), (d). 

       56      Hikita, 12 P.3d at 1175, quoting Underwriters at Lloyd's London v. The 

Narrows, 846 P.2d 118, 119 (Alaska 1993). 

       57      Hikita, 12 P.3d at 1176, quoting Arbelovsky v. Ebasco Servs., Inc., 922 P.2d 

225, 227 (Alaska 1996). 

       58      Hikita, 12 P.3d at 1176 n.21. 

                                    Appendix A - 15 of 18                                      6584 

----------------------- Page 38-----------------------

                 The information Ms. Khalsa has failed to disclose is material to her claims. 

Inspection of her house by Defendant's expert is essential to the Defendant's ability to 

defend against Ms. Khalsa's claim of defective materials and workmanship or to obtain 

information about the amount and feasibility of repairs.  Medical records are necessary for 

Defendants to understand what injuries she sustained in the fall from the ladder and the 

amount of damages she is claiming for physical injuries. 

                 It is clear that Ms. Khalsa's  refusal to provide discovery has prejudiced the 

defendants' ability to defend against her claims by depriving them of any information and 

evidence about her claims and damages. 

                 Defendants request that the case be dismissed with prejudice.  Certainly, the 

case cannot proceed if the plaintiff continues to refuse to provide discovery materials. 

Defendants argue that the court's previous efforts to explain the discovery process to Ms. 

Khalsa, who has shown herself to be a reasonably intelligent person, and her continued 

failure to comply with discovery requests, show that her failure to comply with discovery 

is willful. 

                 Nonetheless, the court must consider lesser alternatives.               One alternative 

would   be   to   prohibit   Ms.   Khalsa   from   presenting   evidence   of   consequential   damages 

including her medical expenses.  One of her primary failures has been her refusal to sign a 

release for her   medical   records even after this court expressly ordered her to sign the 

releases by February 2008.         Her physical condition and medical treatment is an area of 

damages   about   which   the   Defendants   are   least   able   to   obtain   information   without   the 

plaintiff's cooperation. Thus, there is a close relationship between such a sanction and Ms. 

Khalsa's failure to disclose any of her medical records.             Under this alternative, she could 

still proceed with her claim for damages directly related to alleged defects in the house and 

alleged breaches of warranties. 

                                        Appendix A - 16 of 18                                           6584 

----------------------- Page 39-----------------------

               Another alternative would be for the court to set a deadline for Ms. Khalsa to 

comply with the court's January 16, 2008 orders and also respond to subsequent discovery 

requests by Defendants.      Under this alternative, the court should instruct Ms. Khalsa that 

if she fails to substantially comply before the deadline, her lawsuit will be dismissed with 

prejudice.  This would give her a final opportunity to cooperate with the discovery process 

before her case is dismissed. 

IV.	    CONCLUSION AND ORDER 

               For the reasons discussed above, the court orders the following: 

        A.     The   court   DENIES   Defendants'   motion   to   exclude   evidence   of   remedial 

measures, but Defendants may raise Evidence Rule 407 issues again   during trial with 

respect to specific issues and evidence if the need arises. 

        B.     Because Plaintiff ispro se , the court GRANTS Plaintiff's motion to accept the 

late filing of her initial disclosures with the court. 

        C.     The court DENIES the plaintiff's request, to reschedule trial and discovery. 

Her request is already substantially met by the Amended Civil Pre-Trial Order. 

        D.     The court DENIES Defendant Tamasine Drisdale's Motion for Misjoinder. 

        E.     Ms. Khalsa has failed to comply with any of the court's orders from the 

January 2006 hearing. 

               Defendants' motion for Rule 37 sanctions against Ms. Khalsa for her failure 

to comply with discovery is PARTIALLY GRANTED.   Because of Ms. Khalsa's willful 

refusal to sign medical record releases after the court clearly ordered her to do so, Ms. 

Khalsa may not present evidence of her physical injuries or medical expenses. Ms. Khalsa's 

claims for damages for her physical injuries are dismissed with prejudice. 

                                    Appendix A - 17 of 18                                      6584 

----------------------- Page 40-----------------------

              Ms. Khalsa may continue to pursue her breach of contract claims based on 

alleged defects in the house design, construction, and warranties. 

              Dated this 31st day of July, 2008, at Fairbanks, Alaska. 

                                         /s/ Douglas L. Blankenship 
                                          Superior Court Judge 

                                 Appendix A - 18 of 18                                6584 

----------------------- Page 41-----------------------

               IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
 

                      FOURTH JUDICIAL DISTRICT AT FAIRBANKS
 

Shabd-Sangeet Khalsa,                             ) 
                                                  )
 
                         Plaintiff,                )
 
         v.                                       ) 
                                                  ) 
Lars Chose, Tamasine Drisdale,                     ) 
Gordon Stein, Mandala Custom                       ) 
Homes                                             ) 
                                                  )
 
                         Defendants.               )
 
                                                  )
 

Case No. 4FA-06-1234 CI 

            MEMORANDUM DECISION AND ORDER ON DISCOVERY 

I.       INTRODUCTION 

                 The contract between Plaintiff Ms. Khalsa and Defendant Mandela Custom 

Homes      was    signed   in  August     2003,   the  house    was   delivered    and   assembled     soon 
thereafter,   and   Ms.   Khalsa   moved   into   the   house   in   February   2004.1   In   February   or 

March 2004, Ms. Khalsa fell from a ladder, allegedly due to the fault of Defendants, and 

was injured.     Ms. Khalsa filed her pro se complaint on February 27, 2006.                 A three-day 

court   trial   was   scheduled   for   May   2008.   Due   to   discovery   delays,   the   trial   was   later 
changed to a six-day court trial that is scheduled to begin November 17, 2008.2 

         1 
                 Complaint  III-X (Feb. 27, 2006). 

         2       During a January 16, 2008 hearing, the parties and the court referred to a 
jury trial, but the court later corrected the error, since no jury demand had been made. 
                                                                                           (continued...) 

                                         Appendix B - 1 of 27                                           6584 

----------------------- Page 42-----------------------

                This    lawsuit   has   been   plagued    from   the  beginning     by  the  plaintiff's 

reluctance   to   engage   in   discovery.   The   court   has   done   its   best   to   explain   discovery 

and   other   procedures   to   the pro   se  plaintiff.   The   unusual   length   of   this   decision 

reflects    an   effort  to   provide    the  parties,   particularly    Ms.   Khalsa,    with    a  full 

explanation of the court's careful consideration of the relevant factors and the reasons 

for   reaching    its  conclusions    with   respect   to  Ms.   Khalsa's    Motion    for  Order    and 

Defendants' Renewed Motion for Sanctions.                Defendants' Motion to Have Requests 

for Admissions Deemed Admitted is moot. 

II.     PROCEDURAL HISTORY 

                On July 12, 2007, a hearing on discovery issues   was held because there 

seemed to be little progress in the case.        All parties except one defendant were pro se at 

that time.    Ms. Khalsa was present at the hearing.       The court explained Civil Rule 26 and 

the    procedures     and   various    requirements     for   discovery,    including    the   concepts 
underlying discovery.3      The court told the parties that initial disclosures were required to 

be complete by August 15, 2007.4          The court allowed Ms. Khalsa extra time to respond 

to a motion brought by one of the defendants.5          The court also encouraged Ms. Khalsa to 

obtain an attorney.6 

                Ms.    Khalsa    sent  her   initial  disclosures   to  Defendants     along   with  her 

(...continued)
 
Notice     to  Parties  (Jan.  30,   2008);   Hearing    CD4FA4107-66,         02:58:39    -  03:01:00
 
(June 11, 2007); Hearing CD 4FA4408-4, 10:17:47 - 10:18:28; 10:32:36 (Jan. 16, 2008);
 
Pre-trial Orders (June 13, 2007, Jan. 30, 2008).          
 

        3       Hearing, CD 4FA4107-76, 04:30:31 - 05:07:41 (July 12, 2007). 

        4       CD 4FA4107-76, 04:56:10. 

        5       CD 4FA4107-76, 05:03:09 - 05:04:35. 

        6       CD 4FA4107-76, 05:07:41. 

                                       Appendix B - 2 of 27                                         6584 

----------------------- Page 43-----------------------

preliminary   witness   list   on   January   15,   2008.   Other   parties   who   were pro   se    were 
similarly late with initial disclosures.7  The defendants, including two who were pro se at 

the time, filed preliminary witness lists in the latter part of October 2007. 

                During a hearing on January 16, 2008, the defendants reported they had 
received no documents from the plaintiff.8          The court explained to Ms. Khalsa discovery 

procedures and the importance of full disclosure of evidence supporting her claim.9                  The 

court explained that she was required to sign release forms for Defendants to obtain her 

medical   records,   because   her   claim   regarding   injuries   due   to   her   fall   had   placed   her 
physical condition at issue.10       The court   and   the   defendants agreed that the complaint 

appeared to be making a claim for physical and mental injuries from Plaintiff's fall off 

the ladder; and Ms. Khalsa spoke about the defective design leading to her climbing up a 
ladder from which she fell and was injured.11           Ms. Khalsa wanted to limit the release to 

medical treatment of her physical injuries resulting from the fall.12             The court informed 

her   that   Defendants   were   entitled   to   know   about   pre-existing   conditions   through   her 
medical records, not just treatment of injuries she claimed in the current lawsuit.13 

        7       See    Hearing,    CD    4FA4408-4,       09:47:49    -   09:50:49    (Jan.   16,  2008). 

Tamasine      Drisdale   filed   initial   disclosures   on   November   8,   2007,   and   is   the  only 
defendant who remains pro se. 

        8       Hearing, CD4FA4408-4, 09:42:22 - 09:46:14 (Jan. 16, 2008). 

        9       CD4FA4408-4,          09:47:49     -  09:51:53;     10:06:28;     10:13:26;    10:16:36; 

10:20:11; 10:21:55 - 10:23:32. 

        10      CD4FA4408-4, 09:54:18 - 09:55:20. 

        11      Hearing, CD4FA4408-4, 09:51:52 - 09:54:50 (Jan. 16, 2008). 

        12      Hearing, CD4FA4408-4, 09:51:52 - 09:55:17. 

        13      CD4FA4408-4, 09:55:17 - :32; 10:13:56 - 10:14:09. 

                                        Appendix B - 3 of 27                                          6584 

----------------------- Page 44-----------------------

                 Ms. Khalsa participated in the hearing telephonically from Arizona.14                 The 

court ordered Ms. Khalsa to make herself available in Fairbanks for Defendants to take 

her   deposition   during   the   last   week   in   April   or   the   first   week   in   May,   because   she 
expected to be [in] Alaska starting near the beginning of April 2008.15               She orally agreed 

on   the   record   that   this   time   period   was   acceptable.16 During   the   hearing,   the   court 

expressly found that Ms. Khalsa's claims placed her mental as well as physical condition 

at issue   in   this case, and ordered her to submit to an Independent Medical Evaluation 
(IME) and a psychological evaluation.17           The court ordered Ms. Khalsa to deliver signed 

medical record releases to all defendants by February 4, 2008 and to file any objections 
to   the   releases   by   the   same   date.18 Because   Ms. Khalsa   stated   she   would   be   back   in 

Fairbanks   by   mid-April,19    the   court   ordered   that   depositions   be   taken   during   the   last 

week of April or first week of May.20            The defendants scheduled Plaintiff's deposition 

for   April   25,   2008   in   Fairbanks.   The    court   also   ordered   Ms.   Khalsa   to   submit   to 

independent medical and mental evaluations (IME) on a date to be agreed upon by the 
parties.21   Because of delays in discovery, the court vacated the original trial date and 

        14       CD4FA4408-4, 10:24:26.
 

        15       CD4FA4408-4, 09:59:26; 10:13:44 - 10:13:56; 10:35:34.
 

        16       CD4FA4408-4, 09:58:07 - 09:59:50; 10:13:44 - :56.
 

        17       CD4FA4408-4, 10:10:14 - :48; 10:42:46 - 10:43:35; 10:45:49 - 10:46:12.
 

        18
      CD4FA4408-4, 10:41:14 - 10:42:46. 

        19       CD4FA4408-4, 10:33:40 - 10:35:30. 

        20       CD4FA4408-4, 10:35:34 - 10:37:00. 

        21       Hearing, CD4FA4408-4, 10:43:35 - 10:46:12 (Jan. 16, 2008). 

                                        Appendix B - 4 of 27                                           6584 

----------------------- Page 45-----------------------

rescheduled the trial to start November 17, 2008.22 

                 Ms.    Khalsa    failed   to  comply     with   any   of  the  court's   orders    from   the 

January 2006 hearing.         She did not sign the medical release forms.            She did not file any 

objections.     Ms. Khalsa also failed to respond to the defendants' interrogatories within 

30 days as required by Civil Rule 33(b)(3). 

                 On   March   13,   2008,   Defendants   filed   a   motion   for   sanctions   that   would 
dismiss Plaintiff's case pursuant to Civil Rule 37(b)(2).23             They asserted that Ms. Khalsa 

had     failed    to   sign    medical      releases,    produce      requested      documents,       answer 
interrogatories, or make the house available for inspection.24              Defendants pointed out that 

they could not schedule an IME without access to Ms. Khalsa's medical records.                         In her 

Opposition to Sanctions, Ms. Khalsa admitted she received, but did not sign, the medical 
records release forms that Defendants sent her.25             Nor did she file any objections by the 

February 4, 2008 deadline set by the court.             Ignoring the court's explanation during the 

January hearing, she complained that the forms did not specify particular doctors and did 

not limit the request for medical records to medical treatment of her injuries sustained in 
this case.26  With respect to her failure to answer interrogatories, Ms. Khalsa asserted that 

all   of   the   relevant   documents   had   been   stored   in   Alaska,   while   she   spent   the   past  ten 

months   or   so   living   in   Arizona   or   traveling   elsewhere   in   the   United   States   and   other 

        22       Hearing, CD4FA4408-4, 10:32:36 - 10:33:07. 

        23       Lars Chose and Mandala Custom Homes joined Stein's 3/13/2008 motion 

for sanctions on 3/17/2008. 

        24       Def.   Chose   &   Mandala        Custom   Homes'   Reply   (April   1,   2008);   Mtn. 

Sanctions (March 13, 2008). 

        25       Plaintiff's   Opp   to   Sanctions,   at   8,      15   (signed   March   27,   2008;   filed 

April 1, 2008). 

        26       Opp. to Sanctions, at 8  15, 10-11 (April 1, 2008). 

                                         Appendix B - 5 of 27                                             6584 

----------------------- Page 46-----------------------

countries   for   treatment   of   the   injuries   she   suffered   in   the   fall   from   the   ladder.27 Ms. 

Khalsa insisted that she would not be in possession and control of the documents or her 

house (which Defendants had requested be made available for inspection by one of their 
experts)   until   she   returned   to   Alaska,   whenever   that   might   be.28  She   stated   that   only 

when she returned to Alaska, at some unknown date, could she answer interrogatories 
that Defendants sent around January 25, 2008.29 

                 On     April    28,   2008,    Defendants      filed   a  supplemental       memorandum 

regarding      sanctions    to  notify   the   court   that  Ms.    Khalsa    had    failed  to   attend   her 
deposition, which had been scheduled to accommodate her travel plans.30                       On April 24, 

only one day before her scheduled deposition, she faxed notice to Defendants that she 
would not be in Alaska to attend her deposition.31               She claimed she was delayed in the 

state   of   Washington,   and   she   refused   to   travel   to   Alaska   by   air   for   her   deposition   on 

April 25 because the defendants had not provided any money to cover her transportation 
to Alaska and other travel expenses.32           She believed that Defendants had scheduled the 

deposition for a time when they knew she would not be in Alaska,33 but the general time 

period   of   end   of   April   or   beginning   of  May     had   been   set   by   the   court   during   the 

        27       Opp. to Sanctions, at 2-8. 

        28       Opp. to Sanctions, at 2-11. 

        29       Opp. to Sanctions, at 2-11. 

        30       Def. Supp. Re: Sanctions, at 2-3 (April 28, 2008). 

        31       Def.    Supp.     Re:   Sanctions,     Exh.    B   ("Response      to  Notice     of  Video 

Deposition") (April 28, 2008). 

        32       Def. Supp. Re: Sanctions, Exh. B, at 2-3. 

        33       Def. Supp. Re: Sanctions, Exh. B, at 3. 

                                         Appendix B - 6 of 27                                             6584 

----------------------- Page 47-----------------------

January 16, 2008 hearing.34 

                 In   the   court's   July   31,   2008   decision,   the   court   found   that   Ms.   Khalsa 

willfully refused to sign medical record releases after the court expressly ordered her to 

do so, and after the court explained that Defendants had a right to medical information 
where      she   claimed    physical     and   mental    injuries   and    medical    costs.35    The     court 

determined       that  Defendants'      ability   to  defend    against   any   of   her  claims    involving 
physical injury or medical costs had been prejudiced.36                The court imposed sanctions by 

precluding   Ms.   Khalsa   from   presenting   evidence   of   her   physical   injuries   or   medical 

            37 
expenses.       Consequently, the court prohibited Ms. Khalsa from presenting evidence of 

her physical injuries and any claims in her complaint for damages due to her physical 
injuries   were   dismissed   with  prejudice.38        These   claims   included   her   claim   that   she 

"sustained a considerable economic loss due to her injuries, the extensive period of time 
consumed by repeated operations, and periods of recovery time."39                    The court noted that 

Ms.   Khalsa      could   still   pursue  her   claims   for   breach   of  contract,   breach    of   express 

warranty with regard to defects, and breach of implied warranty for a particular purpose 
based on alleged defects in the house design, construction and warranties.40 

                 In early May 2008, Defendants filed notices that they were unable to file a 

list   of  expert   witnesses     without    receiving    discovery     materials    from    Ms.   Khalsa     in 

        34       Hearing, CD4FA4408-4, 10:35:34 - 10:37:00 (Jan. 16, 2008).
 

        35       Memorandum Decision & Order, at 8, 16 (July 31, 2008).
 

        36       Mem. Dec. & Order, at 16 (July 31, 2008).
 

        37       Id.
 

        38       Id.
 

        39       Complaint, at 11,  XXV. 

        40       Mem. Dec. & Order, at 17; See Complaint (Feb. 27, 2006). 

                                          Appendix B - 7 of 27                                             6584 

----------------------- Page 48-----------------------

response to their January request and without being able to take her deposition, which 
she declined to attend on April 25, 2008.41        Plaintiff has merely stated she included a list 

of all her witnesses in her initial disclosures.42       Plaintiff's preliminary witness list also 

included people who are described in terms of an expert witness, such as physicians or 
house construction experts.43 

                A   hearing was held on August 15, 2008, addressing discovery and other 
procedural issues.44     Ms. Khalsa was present in person.         The court urged Ms. Khalsa to 

                  45 
get an attorney     and reminded Ms. Khalsa that the deadlines for response to discovery 
requests had passed without an adequate response from her.46               The court reiterated the 

rationale behind discovery and that failure to cooperate with discovery can result in the 
dismissal of claims.47     Ms. Khalsa's husband, True Indigo, was contacted by telephone 

during the hearing to arrange a time when Defendants' expert could inspect the house.48 

The court ordered Ms. Khalsa   to   answer Defendants' January 2008 interrogatories by 

August 26, 2008 and to attend her deposition, which was rescheduled for September 3, 
2008.49   The court also ordered Ms. Khalsa to file a witness list and to schedule a time 

        41      Joinder in Notice to Court (May 7, 2008); Notice to Court (May 1, 2008).
 

        42      Plaintiff's Mtn. for Order (Sept. 3, 2008).
 

        43      See Plaintiff's Preliminary Witness List (Jan. 15, 2008).
 

        44      Hearing, CD 4FA4408-74, 03:05:12 - 03:56:22 (Aug. 15, 2008).
 

        45      Hearing, CD 4FA4408-74, 03:07:22 - 03:07:54.
 

        46
     Hearing, CD 4FA4408-74, 03:07:54; 03:09:58 - 03:56:22 (Aug. 15, 2008). 

        47      Hearing, CD 4FA4408-74, 03:08:50 - 03:10:36. 

        48      CD 4FA4408-74, 03:15:08 - 03:17:37. 

        49      CD 4FA4408-74, 03:07:54; 03:46:17 - 03:52:59. 

                                       Appendix B - 8 of 27                                        6584 

----------------------- Page 49-----------------------

when Defendants' expert could inspect the house.50               Because one of the defendants had 

moved to deem request for admissions admitted by Ms. Khalsa, the court explained to 

Ms.   Khalsa   that   a   failure   to   respond   to   requests   for   admissions   can   result   in   matters 
being   deemed   admitted   and   explained   how   this   could   affect   her   claims.51     The   court 

described for Ms. Khalsa the procedures relating to expert witnesses.52                 The court urged 

Ms.   Khalsa   to   read   the   court   rules   and   pretrial   order   again   and   warned   her   that   she 
needed to make a greater effort to follow discovery rules.53 

                 Prior   to   the   hearing,   on   July   30,   2008,   Defendants   moved   to   deem   the 

Request for Admissions to be admitted by Ms. Khalsa under Civil Rule 36 due to her 

lack of response.      During the hearing, the court gave Ms. Khalsa until August 26 to file a 
response to the defendants' interrogatories and requests for admissions.54                  She met this 

deadline.    This rendered the Defendants' motion regarding admissions moot. 

                 In   a  letter  received    by   the  court   on   August    27,  2008,    Ms.   Khalsa's 

husband, Mr. Indigo, complained that he had waited   all day for Defendants' expert to 

arrive    for   an  inspection   of   the  house,  and   not   until   late  afternoon   did  Defendants' 
counsel call to reschedule the inspection.55           He alleged he felt intimidated and believed 

Defendants were acting in bad faith by failing to inspect the house on the day originally 

        50       CD 4FA4408-74, 03:35:52 - 03:38:33. 

        51       CD 4FA4408-74, 03:40:37 - 03:42:13. 

        52       CD 4FA4408-74, 03:35:50 - 03:38:18; 03:49:08. 

        53       CD 4FA4408-74, 03:38:33 - 03:43:21. 

        54       CD 4FA4408-74, 03:46:17 - 03:48:04. 

        55       Letter to Judge Blankenship from True Indigo (Aug. 27, 2008). 

                                         Appendix B - 9 of 27                                           6584 

----------------------- Page 50-----------------------

scheduled.56     He   also   requested   compensation   for   his   lost   wages   for   the   day   he   spent 

waiting for them.57 

                 Ms.   Khalsa's   deposition   was   scheduled   for   9:00   a.m.   on   September   3, 
2008.58    Ms. Khalsa arrived shortly before the deposition started at 9:50 a.m.59                  After the 

first few preliminary questions, an attorney for Defendants asked Ms. Khalsa whether 

she had received help with writing her complaint and to identify the person and type of 
help.60   Ms.   Khalsa   answered   that   she   had   hired   Mr.   Don   Hart,   who   is   a   paralegal   in 

Palmer, to help her.61      She testified that Mr. Hart typed what she gave him.62                However, 

when asked if he had helped her with legal theories for her claims or the language in her 
pleadings,   Ms.   Khalsa   was   evasive.63       Defendants'   attorney   persisted   in   asking   Ms. 

Khalsa what assistance Mr. Hart gave her, and she continued to be evasive.64                        Finally, 

counsel became exasperated and told her she could just say she was not going to answer 

        56       Id. 

        57       Id. 

        58       Defendants       Chose     &   Mandala      Custom      Homes'      Joinder    in  Mtn    for 

Sanctions, Exh. A (Notice of Taking Deposition, dated Aug. 19, 2008) (Sept. 9, 2008). 

        59       Transcript of Khalsa Depo., at 3 (Sept. 3, 2008); Aff. Nelson Page  3 (Sept. 

5, 2008). 

        60       Transcript of Khalsa Depo., at 3-9 (Sept. 3, 2008). 

        61       Khalsa Depo., at 9-11. 

        62       Khalsa Depo., at 9. 

        63       Khalsa Depo., at 9-11. 

        64       Khalsa Depo., at 10-11. 

                                        Appendix B - 10 of 27                                             6584 

----------------------- Page 51-----------------------

and   the   court   could   determine   whether   to   order   her   to   answer.65   At   that   point,   Ms. 

Khalsa      terminated     the  deposition     by   saying    "[w]e're    through"     while   handing     the 
attorney two prepared documents.66             The deposition lasted no more than ten or fifteen 

minutes, including swearing in the witness.67 

                 One of the documents Ms. Khalsa handed to Defendants' counsel was a 

Notice   of   Termination   of   the   deposition,   based   on   Civil   Rule   30(d)(3),   in   which   she 

alleged that the deposition was "intentionally designed to cause [her] to endure further 

emotional distress, due to the psychological trauma . . . that was caused or contributed to 
by the defendants."68        The other document was a Motion for Order requesting that the 

court vacate its July 31, 2008 order and limit the scope and manner of the deposition so 

that deposition questions would be submitted in writing with her answers also provided 
in  writing.69    Additionally,   if   the   court   denied   her   motion   to   vacate   its   July   31,   2008 

order,   Ms.   Khalsa   requested   a   stay     in   proceedings   while   she   petitioned     the  Alaska 
Supreme Court for review of the July 31 order.70 

                 Ms. Khalsa filed both documents with the court on September 3, 2008.  On 

September       8,   2008,   Defendants   filed   a   Renewed   Motion   for   Sanctions   against   Ms. 

Khalsa, requesting the form of dismissal of all of her remaining claims and a judgment 

by   default.    On   September   15,   2008,   Defendants   opposed   the   plaintiff's   Motion   for 

Order. 

         65      Khalsa Depo., at 11.
 

         66      Id.
 

         67
     Khalsa Depo., at 1-12. 

         68      Notice to Terminate this Deposition (Sept. 3, 2008). 

         69      Motion for Order (Sept. 3, 2008). 

         70      Motion for Order, at 6. 

                                        Appendix B - 11 of 27                                             6584 

----------------------- Page 52-----------------------

III.    DISCUSSION 

A.      Ms. Khalsa's Motion for Order 

                 On September 3, 2008, Ms. Khalsa filed a "Motion for Order" requesting 

an order (1) vacating the court's July 31, 2008 order, which dismissed with prejudice her 

claims   for   physical   injuries;   (2)   limiting   the   scope   and   manner   of   her   deposition   and 

considering allowing the deposition to be conducted in writing like interrogatories; and 

(3) staying the deposition, if the court denies her request to limit the scope and manner 

of   the   deposition,   so   she   can   seek   an   emergency   petition   for   review   by   the   Alaska 

Supreme Court of this court's July 31, 2008 order. 

         1.      Request to Vacate July 31, 2008 Decision 

                 The portion of Ms. Khalsa's Motion for Order requesting the vacation of 

this court's July 31, 2008 decision constitutes a motion for reconsideration.                Under Civil 

Rule 77(k), a motion for reconsideration must be brought within ten days after notice of 
the ruling.71   Ms. Khalsa's motion will be treated as timely because she is acting pro se . 

                 Ms. Khalsa complains about not only the court's July 31, 2008 decision, 

but   also   the   August   15,   2008   hearing.   She   complains   that   the   court   has   "repeatedly 

threatened     me    with   severe   sanctions."      However,     the  court   has   treated   her  filings 

leniently, such as allowing her late initial disclosures without sanction.                 Although Ms. 

Khalsa's response to Defendants' first discovery request was about six months late, this 

court   did   not   grant   Defendants'   motion   to   deem   the   requests   for   admissions   admitted 

under Civil Rule 36.       If she had been six months late when represented by counsel, the 

court would have had the discretion to deem the matters admitted under Civil Rule 36. 

The court also interpreted her pro se complaint broadly to include among her claims all 

of the injuries, whether financial or physical, that she described in her complaint in order 

to allow her to pursue any claim she was attempting to make. 

        71       Alaska R. Civ. P. 77(k).
 

                                        Appendix B - 12 of 27
                                          6584 

----------------------- Page 53-----------------------

                 This court made an effort to explain discovery procedures and the reason 

for the discovery process to Ms. Khalsa at each hearing.                   The court encouraged her to 

obtain the aid of an attorney and urged her to follow the Alaska Rules of Civil Procedure 

and the court's pretrial orders.        Along with explanations of what was required of her in 

discovery,   this   court   warned   Ms.   Khalsa   several   times   that   the   court   would   not   look 

kindly on a lack of cooperation on her part during the discovery process.                      Instead, Ms. 

Khalsa      repeatedly     disregarded      the  court's    orders,    ignored    Defendants'       discovery 

requests, and insisted upon following a schedule based on her own convenience. 

                 In   its  July   31,  2008    memorandum         decision,    the  court   sanctioned     Ms. 

Khalsa only after the court had explained during the January 16, 2008 hearing the need 

for   the   medical   release   forms   and   she   had   agreed   to   sign   the   forms   during   the   same 

hearing, and then she failed to comply with the court's order to sign the releases and also 

did   not   submit   any    objections    to  the   forms   until   the   defendants   filed   a   motion   for 

sanctions.    Ms. Khalsa requests that the court vacate its July 31, 2008 order dismissing 

any medical claims and damages, while at the same time, she insists that her complaint 

did   not   contain   any   claims   for   damages   for   the   alleged   physical   and   psychological 

injuries she described in the allegations in her complaint or as part of the consequential 

damages she claimed in addition to $250,000 general damages. 

                 Ms.     Khalsa    argues    that  she   has   been   denied    due    process    due   to  the 

dismissal of medical claims she insists are not within the complaint, because she might 
want   to   present   them   later.72    However,   it   would      be   chaotic   to   allow   her   to   avoid 

discovery by asserting she has not claimed damages for physical injuries and later allow 

her   to   add   such   claims   accompanied   by   another   dispute   over   the   extent   of   medical 

information      Defendants      could    access.    Furthermore,       "a  plaintiff   alleging   breach    of 

contract must present evidence sufficient to calculate the amount of the loss caused by 

         72      Mtn. for Order, at 3-4.
 

                                         Appendix B - 13 of 27
                                            6584 

----------------------- Page 54-----------------------

the   breach."73    "Withholding   materials   relating        to   a   party's   damages   may   seriously 

prejudice     the  adverse    party."74   Additionally,      Civil   Rule   9(h)   requires   that  special 

damages be specifically stated.         To the extent that Ms. Khalsa claimed that the injuries 

resulting     from   her   fall  from    the   ladder   were    consequential      damages      caused    by 

Defendants' alleged breach of contract, she was required to allow Defendants to obtain 

information about her injuries and related damages.  Because of her continuing refusal to 

allow     the  Defendants'      access   to   any   medical    information     about    her   injuries   and 

treatment,     only   a  few    months    before    trial,  nothing   short   of   precluding    her   from 

presenting medical information would have been effective in deterring future violations. 

                 Therefore, for these reasons and the reasons discussed in the July 31, 2008 

decision, the court denies Plaintiff's request for an order vacating the court's July 31, 

2008 order, which dismissed with prejudice her claims for physical injuries. 

        2.       Deposition 

                 Ms. Khalsa also requests that the court limit the scope and manner of her 

deposition and consider allowing the deposition to be conducted in writing.                      First, the 

court has read the transcript of the deposition on September 3, 2008, and finds that the 

questions   were   not   asked   in   bad   faith   or   in   such   manner   as   to   unreasonably   annoy, 
embarrass, or oppress Ms. Khalsa.75          Second, the court rejected a previous suggestion by 

Ms. Khalsa to do everything in writing.76             This court will not burden the other parties 

with    the   enormous   amount   of   time     and   delays   involved    in  conducting   a    plaintiff's 

        73       DeNardo v. ABC, Inc. RVs MotorHomes, 51 P.3d 919, 925 (Alaska 2002). 

        74       DeNardo, 51 P.3d at 925, quoting Alaska Trams Corp. v. Alaska Elec. Light 

& Power, 743 P.2d 350, 354 (Alaska 1987). 

        75       See Alaska R. Civ. P. 30(d)(3). 

        76       Hearing, CD 4FA4107-76, 04:26:43 - 04:27:12 (July 12, 2007). 

                                        Appendix B - 14 of 27                                           6584 

----------------------- Page 55-----------------------

deposition     in  writing.    Ms.   Khalsa's     concern     with   accuracy    can   be  accommodated 

through   Civil   Rule   30(e),   which   permits   a   deponent   to   request   30   days   to   review   a 

transcript   of   the   deposition   after   a   transcript   is   available   and   provide   changes   in   her 
answers along with the reasons for making them.77 

                 Therefore,   the   court   denies   Ms.   Khalsa's   request   to   limit   the   scope   and 

manner of her deposition, including her request to allow the deposition to be conducted 

in writing. 

        3.       Request for stay during petition for review 

        Ms. Khalsa requests that this court stay her deposition while she files a Petition 

for Review with the   Alaska Supreme Court.                Discovery in this case has already been 

unusually prolonged.          Trial is imminent.     The court denies Ms. Khalsa's request for a 

stay. 

B.      Defendants' Renewed Motion for Sanctions 

                 On    September      8,  2003,    Counsel     for  Defendant     Gordon     Stein   filed   a 

"Renewed       Motion     for  Sanctions     and   Dismissal    of  Case,"    requesting    that  the   court 

dismiss Ms. Khalsa's remaining claims because of her continued resistance to discovery 

and refusal to comply with the court's orders regarding discovery.                    Defendants Chose 
and Mandala Custom Homes joined in the motion.78 

                 The     Alaska    Supreme      Court    has    stated   that  "Alaska     Rule    of   Civil 

Procedure 37 'affords trial courts broad power to enforce discovery orders by the use of 

        77       Alaska R. Civ. P. 30(e). 

        78       Defendant   Chose   and   Mandala   Custom   Homes'   Joinder   in   Defendant 

Stein's Motion for Sanctions and Dismissal of Case (Sept. 9, 2008). 

                                        Appendix B - 15 of 27                                            6584 

----------------------- Page 56-----------------------

sanctions.'"79      Dismissal      of  the   action   is  one   of  the   available    sanctions    where 

appropriate.80 

                Within   certain   limitations,   a   trial   court   has   the   discretion   to   dismiss   a 
party's claims as a sanction for the party's failure to comply with a discovery order.81 

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.82  Fourth, the trial 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.83 

        1.	     Ms. Khalsa acted willfully when refusing to meaningfully participate in her 
                deposition and engaging in a pattern of failing to respond or delaying other 
                discovery responses 

                Civil Rule 37(b)(3) states that "[t]he court shall not make an order that has 

the effect of establishing or dismissing a claim or defense or determining a central issue 
in the litigation unless the court finds that the party acted willfully."84             "Willfulness in 

this context is defined as a 'conscious intent to impede discovery, and not mere delay, 

        79      DeNardo, 51 P.3d at 922, quoting Hughes v. Bobich, 875 P.2d 749, 752 

(Alaska 1994). 

        80      DeNardo, 51 P.3d at 922; Alaska R. Civ. P. 37(b), (d). 

        81      See DeNardo v. ABC, Inc. RVs MotorHomes, 51 P.3d 919, 922-23 (Alaska 

2002). 

        82      DeNardo, 51 P.3d at 922-23. 

        83      DeNardo, 51 P.3d at 923. 

        84      Alaska R. Civ. P. 37(b)(3) (emphasis added). 

                                       Appendix B - 16 of 27                                          6584 

----------------------- Page 57-----------------------

inability or good faith resistance.'"85      "Once noncompliance has been demonstrated, the 

noncomplying   party   bears   the   burden   of   proving   that   the   failure   to   comply   was   not 
willful."86   Therefore, Ms. Khalsa bears the burden of proving that her repeated failures 

to comply with discovery orders were not willful. 

                During   the   January   16,   2008   hearing,   there   was   much   discussion   about 

when to schedule Ms. Khalsa's deposition and Ms. Khalsa stated she would be in Alaska 

by   the   beginning   or   middle   of   April. The   court   informed   the   parties   that   the   court 

wanted     the  deposition     to  be  scheduled    at  the  end   of  April   or  beginning     of  May. 

Accordingly,   Defendants   notified   Ms.   Khalsa   that   her   deposition   was   scheduled   for 

April 25, 2008.     Since Ms. Khalsa was driving to Alaska, she must have realized before 

April 24 that her location in the Lower 48 states would not enable her to arrive in Alaska 

in time for the deposition on April 25.        However, she did not bother to notify Defendants 

until she faxed notice on the morning of April 24 and accused them of scheduling the 
deposition for a time when she would not be in Alaska.87 

                At the court's insistence during the August 15, 2008 hearing, the parties 

agreed to reschedule Ms. Khalsa's deposition for September 3, 2008.                 The date and time 

were announced during the hearing, at which Ms. Khalsa was in attendance.                   Defendants 

sent her notice on August 19.         On September 3, Ms. Khalsa left within fifteen minutes 

        85      DeNardo, 51 P.3d at 923, quoting Hawes Firearms Co. v. Edwards, 634 

P.2d 377, 378 (Alaska 1981). 

        86      DeNardo, 51 P.3d at 923, quoting Hughes v. Bobich, 875 P.2d 749, 753 

(Alaska 1994). 

        87       Supp. Re: Mtn. for Sanctions, Exh. B, at 3 (April 28, 2008); See also Def. 

Notice to Court re: Unavailability of Expert Witness List Due to Plaintiff Khalsa's Non- 
Compliance (May 1, 2008). 

                                       Appendix B - 17 of 27                                          6584 

----------------------- Page 58-----------------------

after she arrived.88      The transcript of the deposition shows that she arrived carrying the 

notice of termination of the deposition and the motion for an order limiting the scope and 

manner   of   deposition.       Counsel   for   Defendant   Stein   had   asked   only   a   few   questions 

before she produced her documents and walked out.                     Ms. Khalsa's arrival with the two 

documents suggests that she at best, was prepared to walk out of the deposition if she felt 

uncomfortable        and    at  worst,   had   no   intention    of  answering      Defendants'       deposition 

questions   to   the   best   of   her   ability. Although   Defendants'   questions   about   help   she 

received from a paralegal was   an   ill-conceived method of starting a deposition with a 

difficult   party,   the   transcript   shows   that   the   questions   were   not   unreasonable   so   as   to 
annoy, embarrass, or oppress the deponent.89   The questions did not ask her to reveal any 

personal     information.      Defendants'        questions    appeared      to  be  based    on   Defendants' 

observation        that   Ms.     Khalsa's      pleadings      demonstrate       a   greater     than    average 

sophistication   for   a pro   se     litigant,   while   she   has   frequently   and   consistently   relied 

expressly upon herpro se status to obtain the court's leniency in procedural matters. 

                  Ms.   Khalsa   seems   to   find   the   discovery   process   invasive   of   matters   she 

views     as  private.    The     Alaska    Supreme      Court   has    stated   clearly    in  the  context    of 

discovery that the "right to privacy . . . 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."90          A   plaintiff   has   no   privacy   defense   to   the 

         88       Aff. Nelson Page,  3-4 (Sept. 5, 2008). 

         89       See Alaska R. Civ. P. 30(d)(3). 

         90      DeNardo,   51   P.3d   at   928.       The   same   principle   applies   to   the   medical 

information related to any physical injuries for which she claimed damages, and is one 
reason the release form was an essential part of discovery for any medical damages she 
was claiming as consequential damages. 

                                          Appendix B - 18 of 27                                               6584 

----------------------- Page 59-----------------------

discovery      of   information   relevant   to   the   lawsuit   the   plaintiff   instituted.91  Evidence 

obtained through the plaintiff's deposition, by its very nature, would be material to this 
lawsuit instituted by the plaintiff.92 

                 Ms. Khalsa's unilateral decision that certain information is irrelevant does 

not   provide   her   an   excuse   to   simply   refuse   to   respond   to   discovery   requests.    "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   to   impose   sanctions   to   enforce   discovery   orders.93       Civil 

Rule     26(b)(1)    describes    a  broad   standard     for  the  type   of  information      that  may    be 

relevant.   The defendants' few questions about legal help she was obtaining had become 

relevant to this litigation, because of her constant reliance on her pro se status to invoke 

the court's lenience, often resulting in futile efforts and costly delays for defendants. 

                 A pro se litigant must familiarize herself with the Alaska   Rules of Civil 

Procedure and make an attempt to follow the Rules of Civil procedure and comply with 
the trial court's orders.94     In this case, Ms. Khalsa's pleadings indicate she has sufficient 

intelligence   and   general   understanding   of   legal   concepts   to   understand   the   discovery 

rules.    She    demonstrated       her   ability  by  using    Civil   Rule   30(d)(3)    to  terminate    her 

deposition and move this court for the deposition to be conducted in writing. 

                 It   is   not   practical   to   conduct   everything   in   writing   as   Ms.   Khalsa   would 

         91      DeNardo, 51 P.3d at 928. 

         92      See Alaska R. Civ. P. 37(b)(3)(A) ("materiality of the information the party 

failed to disclose"). 

         93      DeNardo, 51 P.3d at 921, quoting Hikita v. Nichiro Gyogyo Kaisha, Ltd., 

12 P.3d 1169, 1175 (Alaska 2000). 

         94      DeNardo, 51 P.3d at 924, quoting Coffland v. Coffland, 4 P.3d 317, 321 

(Alaska 2000). 

                                         Appendix B - 19 of 27                                             6584 

----------------------- Page 60-----------------------

prefer.95    The   court   notes   that   because   the   rigors   of   litigation   under   our   adversarial 

system are not for the faint-hearted, this court has frequently urged Ms. Khalsa to obtain 

the services of an attorney. 

                 The court finds   that   Ms.   Khalsa's termination of the deposition within a 

few minutes after it started was not a good faith application of Civil Rule 30(d)(3), but 

instead   was   an   attempt   to   avoid   the   discovery   process   or   to   manipulate   the   court   and 

parties   for   Ms.   Khalsa's   own   convenience.       Therefore,   the   court   concludes   that   Ms. 

Khalsa's refusal to participate in her deposition in a meaningful way constituted willful 

noncompliance with this court's order for Ms. Khalsa to have her deposition taken by 

Defendants. 

         2.      Defendants       are  prejudiced     by   Ms.   Khalsa's     refusal   to  cooperate    with 
                 discovery 

                 Defendants argue that they cannot defend against Ms. Khalsa's claims if 
they cannot depose her.96        They also point out that all of the delays in discovery and Ms. 

Khalsa's   failure   to   cooperate   with   the   taking   of   her   deposition   are   greatly   increasing 
litigation costs for the defendants.97 

                 In Lee v. State, the Alaska Supreme Court agreed that the responding party 

had    prejudiced     the  party   seeking     discovery,    that  the   responding     party's    omissions 

delayed progress in the case and forced the other party to either depose the responding 

party without the aid of discovery or conduct a trial without the benefit of meaningful 

         95      See   Hearing,   CD   4FA4408-4,   10:08:54   -   10:09:30;   10:11:51   (Jan.   16, 

2008); Mtn. for Order, at 5-6 (Sept. 3, 2008). 

         96      Aff. Nelson Page,  7. 

         97      Renewed Mtn. Sanctions, at 2, 5 (Sept. 8, 2008). 

                                        Appendix B - 20 of 27                                             6584 

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discovery.98    Similarly, the defendants in this case have already been prejudiced in their 

efforts to defend this case because of Plaintiff's long delays in responding to discovery 

requests, delay in allowing inspection of the house, and twice refusing to be deposed. 

                 The    court   concludes     that  Ms.    Khalsa's    constant    delays    and   failure   to 

comply with the court's orders is prejudicial to the defendants. 

         3.      Nexus exists between withheld discovery and proposed sanction 

                 The   test   for   the   validity   of   a   discovery   sanction   that   dismisses   claims   is 

whether the information withheld is related to the claims or elements of the dispute that 

cannot be determined on the merits without disclosure of the information the court has 
ordered the party to produce.99 

                 Ms. Khalsa has refused to be deposed in any meaningful way.                      She is the 

plaintiff   who   made     the   factual   allegations   in   the  complaint   and   brought   claims      for 

damages   against   Defendants.         She   is   the   person   who    owns   the   house   with   alleged 

problems       in  design    and    construction     and   she    is  the  person     who    observed     and 

experienced those problems.           Her reports of problems with the house soon after moving 

in   depend     largely   on  her   own    testimony.     She    is  the  buyer    who    attempted    to  get 

Defendants   to   remedy   the   problems.        She   is   the   owner   of   the   house   purchased   with 

reliance on whatever warranties were made by Defendants in the contract.                        She clearly 

has   knowledge   and   information   that   Defendants   cannot   discover   other   than   through   a 

deposition of the plaintiff, and without the information, Defendants have no way to form 

a   reasonable defense against her claims.            Defendants would be prejudiced if forced to 

conduct a trial without the benefit of the plaintiff's deposition.              Because the information 

to be gained from the plaintiff's deposition would be directly relevant to the claims at 

         98      Lee v. State, 141 P.3d 342, 350 (Alaska 2006). 

         99      Lee v. State, 141 P.3d 342, 350 (Alaska 2006). 

                                        Appendix B - 21 of 27                                             6584 

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issue, the sanction of dismissal is sufficiently related to the plaintiff's noncompliance.100 

                 The court concludes that there is a nexus between the withheld discovery 

and the proposed sanction dismissing the claims. 

         4.      There are no meaningful alternative sanctions to dismissal 

                 Under Alaska   law, it is   "clear that a   trial court may   not   issue   litigation- 

ending      sanctions    without     first  exploring    'possible     and   meaningful      alternatives     to 
dismissal.'"101     "If   meaningful   alternative   sanctions   are   available,   the   trial   court   must 

ordinarily impose these lesser sanctions rather than a dismissal with prejudice."102  Only 

if the court's "careful consideration of lesser alternative sanctions convinces it that no 

sanction short of dismissal is appropriate and if the court fully explains its reasons for 
reaching   this   conclusion,"   can   the   court   issue   litigation-ending   sanctions.103      The   trial 

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.104 

                 With     respect    to  the  medical     release   forms,    Defendants      sent   forms    to 

Plaintiff   to   sign   early   in   the   discovery   process.  She   did   not   sign   them.  During   the 

January 16, 2008 hearing, the court ordered Ms. Khalsa to sign the forms by February 4, 

         100     See DeNardo, 51 P.3d at 926. 

         101     Hikita, 12 P.3d at 1175, quoting Underwriters at Lloyd's London v. The 

Narrows, 846 P.2d 118, 119 (Alaska 1993). 

         102     Hikita, 12 P.3d at 1176, quoting Arbelovsky v. Ebasco Servs., Inc., 922 P.2d 

225, 227 (Alaska 1996). 

         103     Hikita, 12 P.3d at 1176 n.21. 

         104     DeNardo, 51 P.3d at 923. 

                                         Appendix B - 22 of 27                                             6584 

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2008, or file objections with the court by that date.105           When she again had not signed the 

medical releases weeks after the due date, Defendants moved for sanctions.                      Ms. Khalsa 

then opposed sanctions by stating that a claim for medical damages was not included in 

her    complaint.     She     now    claims   she   did   not   sign   the  release    forms    because    the 

defendants   never informed her whether they wanted her to sign the release forms and 
amend her   complaint to add a claim for medical damages.106                    Ms. Khalsa attempts to 

hold Defendants responsible for her own decision not to sign the release forms.  She was 

well    aware    from   the   hearing    that  the  court   and   defendants     already    interpreted    her 

complaint   to   state   a   claim   for   damages   for   physical   injuries   and   that   the   court   had 

ordered her to sign the forms by February 4, 2008.                 Similar to the DeNardo case, Ms. 

Khalsa'spro se status does not provide an excuse for her noncompliance with the court's 
order.107 

                 As    discussed    in  the   procedural    history   section,    this  court   warned    Ms. 

Khalsa     that   continued    violation    of  discovery     orders   could    lead   to  dismissal.     Her 

continued   refusal   to   sign   releases   for   medical   information   lasted   for   over   six   months. 

Finally, the court dismissed any possible medical claims because the defendants could 

not    defend    against   such   claims    unless   she   revealed    medical    information      about   her 

injuries and the damages she claimed for such injuries. 

                 A similar scenario has occurred with the defendants' attempts to take Ms. 

Khalsa's deposition and obtain other information about her claims.                   A discovery request 

cannot   be   satisfied   by   a   party   merely   claiming   that   it   is   attempting   to   ascertain   the 

         105     Hearing, CD 4FA4408-4,10:41:14 (Jan. 16, 2008). 

         106     Mtn. for Order, at 4 (Sept. 3, 2008). 

         107     See DeNardo, 51 P.3d at 924. 

                                        Appendix B - 23 of 27                                             6584 

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answers and putting off its obligation to a later date.108           Ms. Khalsa put off her discovery 

obligations with the excuse that all of the relevant documents were in storage in Alaska 

while     she  was    traveling   or  living   in  Arizona     for  many    months.      She    put   off  her 

obligation to make her house, which is the primary subject of this litigation, available for 

inspection   by   Defendants   by   claiming   she   had   no   control   over   the   house   because   she 

was   renting   it   to   tenants   for   the   winter.  She   made   no   effort   to   make   the   documents 

available through an agent or to ask the tenants to arrange to make the house available 

for inspection. 

                 Similar   to   the   plaintiff   in DeNardo   v.   ABC   Inc.   RVs   MotorHomes,   Ms. 

Khalsa has been given   multiple chances to comply with discovery, but each time she 
unreasonably refused to comply.109            In DeNardo, the Alaska Supreme Court stated that 

after   lesser   sanctions   fail   to   encourage   a   plaintiff   to   comply   with   discovery   rules   and 
orders,   the   trial   court   is   not   required   to   consider   lesser   sanctions.110 In   this   case,   the 

court's admonitions during hearings and dismissal of medical claims were unsuccessful 

in encouraging Ms. Khalsa to be more cooperative in the discovery process. 

                 This court has attempted to be lenient due to Ms. Khalsa's pro se status 

and has given Ms. Khalsa ample chances to comply with discovery requirements.                           First, 

the   court   gave    her   extra  time    to  produce    her   initial  disclosures,    even   though     her 

disclosures were produced well after the deadline established by the court.                    Second, the 

court set a deadline for her to sign the medical releases with which she failed to comply 

or provide any other response until Defendants filed their initial motion for sanctions. 

Third, the court allowed her several extra months to finally decide to travel to Alaska 

         108     DeNardo, 51 P.3d at 923, quoting Hikita v. Nichiro Gyogyo Kaisha, Ltd., 

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

         109     See DeNardo, 51 P.3d at 926-27. 

         110     DeNardo, 51 P.3d at 927. 

                                        Appendix B - 24 of 27                                             6584 

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where her records were stored before holding the August 15, 2008 hearing and setting a 

deadline     for  responding      to  Defendants'      interrogatories    and   requests    for  admissions. 

Fourth, the court denied Defendants' initial request for dismissal of all of Ms. Khalsa's 

claims, and granted dismissal only of whatever claims were supported by the medical 

information she refused to release even after the court's direct order to do so.                   Fifth, the 

court    did   not  sanction    Ms.    Khalsa    for   her  conduct     with   respect   to  the   deposition 

scheduled   for   April   25,   2008,   but   insisted   that   another   date   for   the   deposition   be   set 

during   the   August   2008   hearing.        Similarly,   the   court   called   Ms.   Khalsa's   husband 

directly and insisted that he provide a date for inspection of the house by Defendants. 

Sixth, on September 3, 2008, Ms. Khalsa had an opportunity to allow Defendants to take 

her deposition upon oral examination, as they were entitled to do under Civil Rule 30. 

Instead, she arrived prepared to terminate the deposition within minutes of her arrival 

with   allegations   prepared   before   the   deposition   regarding   the   manner   in   which   it   was 

conducted.      The court finds that Ms. Khalsa did not make a good faith effort to comply 

with the court's order for her deposition. 

                 As   in  DeNardo,       Ms.   Khalsa's   violations   of   discovery      rules,   refusal   to 

comply with the court's orders, delays, and general lack of cooperation are sufficiently 

egregious      to  allow    the  court    to  exercise    its  discretion   to   impose    the   sanction    of 
dismissal.111    The court is convinced that no lesser sanction would deter Ms. Khalsa from 

future discovery violations. 

         111     See DeNardo, 51 P.3d at 927.
 

                                         Appendix B - 25 of 27
                                            6584 

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IV.     CONCLUSION 

                 The court denies Ms. Khalsa's request to vacate the court's July 31, 2008 

order precluding her presentation of evidence of her physical injuries and dismissing any 

claims for damages based on those injuries. The court concludes that Ms. Khalsa failed 

to show a basis for terminating or limiting the scope of her deposition or for requiring 

the   defendants   to   depose   the   plaintiff   in   writing. Also,   the   court   will   not   stay   any 

proceedings in this case. 

                 The    court   finds   that  the  pertinent    factors  this  court   must    consider    in 

determining the appropriate sanction support a sanction of dismissal.                    The court finds 

that   Ms.   Khalsa's    pattern   of  excuses    and   long   delays   in  providing     information    for 

discovery culminating in her   refusal to participate in her deposition by the defendants 

was a willful refusal to comply with the court's orders during the hearings on January 16 

and August 15, 2008.         The information was material to this lawsuit.              The prejudice to 

defendants      from    Ms.   Khalsa's    delays    is  significant.    Trial   is  scheduled     to  begin 

November   17.        Ms.   Khalsa   has   not   shown   any   inclination   to   participate   fully   in   her 

deposition.      It  is  remarkable     that  a  plaintiff  who    uses   the  court   process   to  obtain 

compensation       for   an  alleged   wrong,   refuses    to  abide   by   the  rules  of   the  court   she 

selected.    The   court   is   convinced   based   upon   Ms.   Khalsa's   behavior   to   date,   that   for 

whatever reason, Ms. Khalsa will not cooperate in good faith with her deposition or any 

other process set forth in the civil rules or concerning the trial process.             A lesser sanction 

is unlikely to prevent further delays in the discovery   process or to protect Defendants 

from the inability to prepare a defense due to lack of material information. 

                                                 ORDER 

                 1.      Ms. Khalsa's Motion for Order is DENIED. 

                 2.      Defendants' Renewed Motion for Sanctions is GRANTED.                        All of 

the plaintiff's remaining claims in this case are dismissed with prejudice. 

                                        Appendix B - 26 of 27                                           6584 

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                3.      If   Ms.   Khalsa   wants   to   appeal   this   decision,   the   court   directs   her 

attention to the Alaska Rules of Appellate Procedure.             Under Appellate Rule 204(a)(1), 

Ms. Khalsa has 30 days from the date shown in the clerk's certification of distribution of 

this order and judgment in which to file a notice of appeal to the Alaska Supreme Court. 

                DATED this 24th day of October, 2008, at Fairbanks, Alaska. 

                                                /s/ Douglas L. Blankenship 
                                                 Superior Court Judge 

                                       Appendix B - 27 of 27                                         6584 
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