Lear v. Jamrogowicz, 2013 MT 147 (June 4, 2013) (5-0) (Cotter, J.)
Issue: Whether the district court properly dismissed Lear’s civil action without prejudice, rather than with prejudice.
Short Answer: Yes.
Facts: Stacy Lear claims Carrie Jamrogowicz began stalking her in 2002. In February 2012, Lear obtained an order of protection and a no contact. Prior to the hearing to determine if the TOP should become permanent, the justice court granted Jamrogwicz’s motion to stay the hearing pending discovery. Lear claims she provided about 500 pages of responses to discovery, and twice agreed to be deposed. On both occasions, Jamrogowicz canceled the depositions.
Jamrogowicz removed the case to district court, which ordered discovery to proceed, set a hearing for August 2012, and ordered the TOP to remain in effect. In June, Lear did not appear for a scheduled depo. In July, Jamrogowicz was charged with criminal stalking and a no contact order was entered.
Procedural Posture & Holding: Jamrogowicz moved to dismiss the civil action with prejudice because Lear did not appear for her depo. Lear moved to dismiss without prejudice because of the no-contact order, seeking dismissal without prejudice in case she later needed an order of protection. The district court held that discovery sanctions were not warranted and dismissed without prejudice. Jamrogowicz appeals, and the Supreme Court affirms.
Reasoning: Although the parties and the district court focus on the propriety of discovery and sanctions for its abuse, the Court instead focuses on statutes addressing stalking and orders of protection. The statutes do not provide for discovery in cases seeking civil orders of protection. “The breadth of discovery the District Court allowed Jamrogowicz, including pursuit of personal information about Lear, was wholly antithetical to the purpose of a TOP.” ¶ 25. Jamrogowicz was also allowed to depose Lear even though Jamrogowicz was precluded under the TOP from being within 1500 feet of Lear. “[T]he object of a TOP proceeding is the swift and efficient protection of one who is being harassed and intimidated by another.” ¶ 26. Thus, “unless extraordinary circumstances justify it, courts should not compel a petitioner ins a stalking matter to be subject to discovery at the hands of the respondent.” Id. The district court did not abuse its discretion in dismissing the TOP without prejudice, as the need for a TOP can recede and then arise again.