North Carolina Business Litigation Report

Last Minute Service Of Delinquent Discovery Responses Didn't Save Plaintiff From Dismissal Of Her Complaint

The Plaintiff in Batlle v. Sabates didn't respond to Defendant's discovery for more than eight months. She served her responses only on the day that Defendant's motion for sanctions came on for hearing.The trial court granted the motion for sanctions and dismissed the Complaint as a result of the discovery violation.

The Plaintiff argued on appeal that her last minute service of the responses should have precluded the sanction of dismissal.

Today, the Court of Appeals affirmed the dismissal, in a thorough opinion by Judge Ervin. He concluded that:

Plaintiff has cited no authority tending to establish that the trial court abused its discretion by dismissing Plaintiff's complaint after such a lengthy, eight month delay because Plaintiff ultimately served responses upon Defendant, and we are aware of none. Furthermore, given the length of Plaintiff's delay in responding to Defendant's discovery requests, a reasonable trial judge could well have concluded that the last minute provision of discovery on 4 September 2007 did not suffice to preclude dismissal.  Thus, the fact that Plaintiff provided discovery at the last minute does not establish that the trial court abused its discretion by dismissing Plaintiff's complaint.

Op. at 19.

The Court also rejected the argument that the Defendant was required to show prejudice as a result of the delinquent discovery, holding that the trial court "was not required to find prejudice as a precondition for dismissing Plaintiff's complaint." 21.


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Mack Sperling
Brooks Pierce, LLP
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