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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
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).
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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).
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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
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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).
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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
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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
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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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