Fed R Civ P 37 B 2 Interpretation
In First National Bank of Southwestern Ohio v. Doellman, Butler App. No. CA2005-05-127, 2006 Ohio 1663, the Court stated that Civ.R. 37(B)(2) permits dismissal of an action or rendering a judgment by default against a disobedient party for failure to comply with a discovery order, provided that counsel has been given notice before the dismissal.
The Court concluded that, "because FNB's motion for sanctions specifically requested dismissal of Doellman's counterclaims and judgment in its favor, Doellman was placed on notice that such sanctions could be imposed if he failed to comply with court's April 22, 2002 order." Id. at P24.
The Court further stated:
"On remand, the trial court must conduct a new hearing on FNB's motion for sanctions arising out of Doellman's alleged failures to comply with the court's discovery orders.
Nothing in this opinion precludes the trial court from again dismissing Doellman's counterclaims and entering judgment in favor of FNB on its claims if the court finds that such sanctions are appropriate.
Because Doellman received notice of the February 3, 2003 trial and failed to appear at his peril, the court need not revisit the issue of FNB's damages should it ultimately be determined that Doellman is liable to FNB on its claims." Id. at P45.