JOSE L. MARTINEZ v. ERICH REINBOLZ & Another.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

21-P-952

JOSE L. MARTINEZ

vs.

ERICH REINBOLZ & another.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A Superior Court judge (motion judge) dismissed the

plaintiff's negligence complaint as a sanction for his failure

to comply with a court order to sit for a deposition. Acting

pro se, the plaintiff appeals. We affirm.

Background. The complaint, filed in July of 2017, sought

damages for injuries sustained by the plaintiff in a collision

caused by Erich Reinbolz while Reinbolz was operating a vehicle

owned by Fitchburg Surfside Pool, Inc. On May 16, 2018, the

plaintiff sat for a deposition, which was not completed that

day. By October 28, 2020, the deposition still was not

complete, and the plaintiff's attorney had withdrawn. At a

hearing on that date, defense counsel explained that at least

1 Fitchburg Surfside Pool, Inc.
five times before the plaintiff's attorney withdrew, the

defendants noticed a deposition on a date agreed upon by the

attorneys, but the plaintiff canceled it at the last minute. At

the end of the hearing, the plaintiff was ordered, and agreed,

to sit for a deposition on January 21, 2021.

That date was postponed, once by agreement and then twice

by orders of different judges, with the last such order, dated

March 8, 2021,2 compelling the plaintiff to sit for a deposition

no later than May 31. The defendants noticed the plaintiff's

deposition for May 20. The plaintiff filed an opposition to the

deposition notice; on May 10, after a hearing, a judge denied

the opposition and ordered: "Deposition to take place as

scheduled" (deposition order). Two days later, the defendants

sent the plaintiff an email confirming the time of the May 20

virtual deposition. On May 14, the plaintiff responded by email

and attached a copy of a notice of appeal from the deposition

order, which the plaintiff had filed earlier that day. On May

19, the clerk sent notice of the May 10 docket entry containing

the deposition order and the court reporter emailed the parties

an invitation to the virtual deposition. On May 20, the

plaintiff did not appear for the deposition. On May 21, the

plaintiff received the May 19 notice of docket entry.

2 All dates hereinafter refer to the year 2021.

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The defendants filed a motion to dismiss the complaint for

the plaintiff's failure to comply with the deposition order.

The motion was allowed after a hearing at which the plaintiff

appeared to maintain that he was not required to appear on May

20 because he filed a notice of appeal from the deposition order

on May 14, but at the same time claimed he did not know about

the deposition order on May 20 because he did not receive notice

of the docket entry until May 21. The plaintiff's appeal from

the deposition order was never entered in this court.

Discussion. Trial judges may dismiss a case as a sanction

for a party's refusal to attend their own deposition or comply

with court orders "when justified by a party's extreme conduct."

Sommer v. Maharaj, 451 Mass. 615, 621 (2008), cert. denied, 556

U.S. 1235 (2009). See Mass. R. Civ. P. 37 (b) (1), as appearing

in 423 Mass. 1406 (1996); Mass. R. Civ. P. 37 (d), 365 Mass. 797

(1974); Mass. R. Civ. P. 41 (b) (2), 365 Mass. 803 (1974).

Recognizing that dismissal is a "severe sanction," Litton

Business Tel. Sys., Inc. v. Schwartz, 13 Mass. App. Ct. 113, 114

(1982), but mindful that "we are loath to interfere with orders

arising out of the management of a case by the trial judge,"

Maywood Bldrs. Supply Co. v. Kaplan, 22 Mass. App. Ct. 944, 945

(1986), we review the motion judge's decision to dismiss the

case for an abuse of discretion. Mattoon v. Pittsfield, 56

Mass. App. Ct. 124, 131-132 (2002).

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An abuse of discretion consists of a clear error of

judgment in weighing the factors relevant to a decision, such

that the decision falls outside the range of reasonable

alternatives. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27

(2014). The factors relevant to the motion judge's decision

"include[d] the relative clarity with which it appear[ed] that

the judgment [of dismissal would be] unjust, the relative fault

of parties, and the balance to be struck" between, "on one hand,

a concern about giving parties their day in court, and, on the

other, not so blunting the rules that they may be ignored with

impunity" (quotation omitted). Greenleaf v. Massachusetts Bay

Transp. Auth., 22 Mass. App. Ct. 426, 429-430 (1986) (discussing

factors relevant to review of sanctions for discovery

violations).

The motion judge reasoned as follows:

"As of today, three separate judges have ordered the
plaintiff to attend his deposition. He has not done so.
Rather, he has filed what this court deems to be frivolous
appeals of the orders. The [Appeals Court] has not stayed
any order.

"The Massachusetts Supreme Judicial Court has recognized
the '. . . sanctions provided by rule 37 are designed not
only to compel compliance with discovery requests; they
also act as a deterrent to unwarranted evasions of
discovery.' Corsetti v. Stone Co., 396 Mass. 1, 26 (1985).
Here, [the plaintiff] has willingly and knowingly evaded
discovery and ignored court orders. While it is
unfortunate that the plaintiff's energies have focused on
thwarting the process of getting the case ready for trial
on what could be a meritorious claim, the plaintiff's
obstructionist conduct warrants dismissal of his case."

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We see no flaw in this reasoning, which demonstrates that

the motion judge considered the appropriate factors. Her

decision is not outside the range of reasonable alternatives.

Plainly the plaintiff timely knew of the deposition order

requiring him to appear on May 20, because he purported to

appeal from it on May 14. That his receipt of the notice of

docket entry was delayed until May 21 did not justify

noncompliance.

Moreover, even putting aside that a party has no right to

appeal from an interlocutory discovery order, Patel v. Martin,

481 Mass. 29, 34 (2018), the plaintiff's mere filing of a notice

of appeal from the deposition order here did not relieve him of

the obligation to comply with that order. Cf. G. L. c. 231,

§ 118 (filing of petition for single justice review of nonfinal

trial court order "shall not suspend the execution of the order

. . . except as otherwise ordered by a single justice of the

appellate court"); Mass. R. Civ. P. 62, as amended, 423 Mass.

1409 (1996) (providing, generally, that appeal from judgment

stays issuance of execution upon judgment, but appeal from

injunctive order does not stay order).

By the time of the hearing before the motion judge, the

plaintiff had four years to complete discovery so he could have

his day in court. Rather than submit to a deposition in his own

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lawsuit, however, the plaintiff "persistent[ly] and

substantive[ly]" refused to provide the defendants with

information to which they were entitled. Maywood Bldrs. Supply

Co., 22 Mass. App. Ct. at 945. See Mass. R. Civ. P. 30 (a), 365

Mass. 780 (1974).3 Such conduct is not excused because the

plaintiff is pro se. "Despite their lack of legal training, pro

se litigants are held to the same standards as practicing

members of the bar." Commonwealth v. Jackson, 419 Mass. 716,

719 (1995).4 Even if a lesser sanction than dismissal could have

been devised, "it is not our province to substitute our judgment

3 Rule 30 was amended after the events in this case; a party's
right to depose another party is now found at Mass. R. Civ. P.
30 (a) (1), as appearing in 489 Mass. 1401 (2022).
4 Pro se litigants are also bound by the principle that claims

not made in the trial court may not be raised for the first time
on appeal. See Albert v. Municipal Court of Boston, 388 Mass.
491, 493-494 (1983). Therefore, we do not address numerous
issues we understand the plaintiff to be raising in his brief,
including: (1) denial of an unidentified motion to reconsider;
(2) statements in an expert report; (3) claims of fraud on the
court, fraudulent conveyance, and perjury; (4) claims under
G. L. c. 93A and G. L. c. 176D; (5) claims of the plaintiff's
family members and business; and (6) a counterclaim for $500
million in damages.

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for that of the judge." Short v. Marinas USA Ltd. Partnership,

78 Mass. App. Ct. 848, 853 (2011).

Judgment affirmed.

By the Court (Massing, Sacks
& Walsh, JJ.5),

Clerk

Entered: February 8, 2023.

5 The panelists are listed in order of seniority.

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