Five Star Roofing v. Robinson

"ermont Superior Court
Filed 12
Washington

SUPERIOR COURT CIVIL DIVISION
Washington Unit Case No. 23-CV-02301
65 State Street
Montpelier VT 05602
802-828-2091
www.vermontjudiciary.org

Five Star Roofing, LLC v. Kathy Robinson

Opinion and Order on Motion to Reconsider

On December 16, 2024, this matter came for hearing before the Court on
Plaintiff's motion to reconsider. Plaintiff appeared through Attorney Barquist.
Defendant appeared and represented herself. The motion seeks to have the Court
reconsider its prior ruling dismissing Plaintiff's affirmative claims and its answer to
Defendant's counterclaim based on Plaintiff's repeated failures to comply with
Court Orders concerning the issue of representation for the Plaintiff. Plaintiff
maintains that the sanction is too severe; Defendant asks the Court to adhere to its
ruling. The Court makes the following determinations.
Background and Findings
This case arises out of a roofing contract executed by Plaintiff at Defendant's
residence. Defendant did not pay a portion of the bill for the work, and Plaintiff
filed suit. Defendant was unhappy with the work, filed an answer disputing the
billed amounts, and filed a counterclaim. Plaintiff filed an answer to the
counterclaim.
On October 24, 2023, the Court held a hearing with the parties. As Plaintiff
is a limited liability corporation, the Court told Plaintiff that it was required either
to obtain counsel or make a motion arguing why it meets the standards to be
allowed to proceed without counsel. The Court told Plaintiff that it would give it 30
days to obtain counsel or make the motion.
Following the hearing, the Court issued a written Order providing Plaintiff
with the precise standards governing the issue and reiterating that a notice of
appearance by counsel or a motion to proceed pro se were to be filed within 30 days.

Thirty days passed with no action from Plaintiff.
On November 29, 2023, on its own motion, the Court issued a written Order
affording Plaintiff another 30-day period to file a notice of appearance by counsel or
a motion to proceed pro se. In that Order it expressly informed Plaintiff that the

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failure to make one filing or the other within that period would result in the
dismissal of its affirmative claims and the striking of its answer to the
counterclaim.
Plaintiff made no filing regarding representation in that period but did file a
motion to dismiss, by which it sought to proceed in small claims court.
In January 2024, the Court held a status conference. At the conference, it
denied the motion to proceed in small claims court. It discussed the possibility of
early mediation. Both sides agreed to pursue that path. It gave the parties 90 days
to complete mediation. The Court also returned to the issue of representation.
Again, it reminded Plaintiff of the law’s requirement that it either obtain counsel or
seek permission by motion from the Court to proceed pro se. It gave the Plaintiff an
additional 30 days beyond the 90-day mediation period to take action regarding
representation. The Court stated, again, that given the past failures to follow the
Court’s orders, the failure to take such action would result in the dismissal of its
affirmative claims and the striking of its answer to the counterclaims. The Court
stated that it wanted Plaintiff to be “clear” on that and that the failure to adhere to
the Court’s Order was a “big deal.” Plaintiff indicated that she understood, and she
stated that she would be getting counsel if the case proceeded forward.
Following the hearing, the Court issued a written Order. In that written
Order it, again, reminded Plaintiff of the need to obtain counsel or file a motion to
proceed pro se within 120 days of the hearing. It also reissued its warning to
Plaintiff that the sanction for failing to make one of those filings would be dismissal
of its affirmative claims and striking of its answer to the counterclaims.
Ninety days passed without any notice as to the failure or success of
mediation.
One-Hundred and twenty days passed without Plaintiff filing a notice of
appearance by counsel or a motion to proceed pro se.
On June 6, 2024, the Court issued an Order telling the parties to let the
Court know if the matter had settled during the 90-day mediation period. If it had
not, consistent with the multiple past oral and written orders, the Court stated that
the case would proceed with Plaintiff’s affirmative claims dismissed and its answer
to the counterclaims stricken.
On June 28, 2024, counsel entered his notice of appearance.
On August 27, 2024, the Court held a hearing. Plaintiff stated that it did not
understand the June 6 Order as dismissing its claims and striking its answer. The
Court gave Plaintiff 14 days to submit a motion to reconsider the June 6 Order.
Plaintiff timely filed the motion, and Defendant opposed it.
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At the hearing held on December 16, 2024, Defendant testified credibly that
the period of time between October and today had caused her prejudice. She noted
that she had cancer surgery in 2023 and was still recovering. The delays caused her
anxiety, and the multiple hearings on this preliminary issue (all of which she
attended) caused her stress and caused her to miss time with her family and
grandchildren. She also consulted with counsel who assisted her with drafting her
opposition to the motion to reconsider, and she incurred costs in that endeavor of
$1,000.00.
Defendant also credibly testified that she found a mediator and sent Plaintiff
options for mediation dates during the 90-day mediation period, and Plaintiff failed
to respond or engage in further discussion regarding scheduling the Court-ordered
mediation. The mediation was not held.
Analysis
Initially, Plaintiff makes two procedural arguments that the Court rejects.
First, it claims that, because the June 6 Order was not entered on the docket as a
“dismissal,” it cannot be viewed as such under Vt. R. Civ. P. 58. As the dismissal
did not adjudicate all claims, and the Court did not enter a separate judgment
under Vt. R. Civ. P. 54(b), it makes sense that a judgment would not have been
reflected under Rule 58. Second, it asserts that the Court can only dismiss under
Rule 41(b) following a motion by Defendant. The Court in this instance acted in
accord with enforcing its own Orders that directed certain actions to occur. The
Court sees no need for a motion under such circumstances. In any event, Rule 41(b)
does not purport to undermine the courts’ power to dismiss for failure to prosecute,
which is part of its inherent authority “to prevent undue delays in the disposition of
pending cases and to avoid congestion” in its docket. Link v. Wabash Railroad Co.,
370 U.S. 626, 629–30 (1962); see Kenney v. California Tanker Co., 381 F.2d 775, 775
(3d Cir. 1967); accord Lamell Lumber Corp. v. Newstress Int’l, Inc., 2007 VT 83, ¶
23, 182 Vt. 282, 297 (“We have observed that the trial court has inherent authority
to impose sanctions when necessary, in its discretion, to protect the integrity of the
judicial system or instill respect in both litigants and litigators for the law and the
legal process.” (internal quotation omitted)); see also 9 Arthur R. Miller, et al., Fed.
Prac. & Proc. Civ. § 2370 (4th ed.) (discussing same). Here, inter alia, Plaintiff’s
failure to obtain counsel or make a motion to proceed pro se plainly precluded it
from prosecuting its case.1

1 Similarly worded Federal Rule 41(b) has also been interpreted to allow the court to

dismiss on its own motion in the absence of a motion by the opposing party for
failure to follow court orders. See, e.g., Olsen v. Mapes, 333 F.3d 1199, 1204 n. 3
(10th Cir. 2003) (“Although the language of Rule 41(b) requires that the defendant
file a motion to dismiss, the Rule has long been interpreted to permit courts to
dismiss actions sua sponte for a plaintiff's failure to prosecute or comply with the
rules of civil procedure or court[s’] orders.”); Steeves v. United States, No. 2022-
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On the merits, Plaintiff’s motion to reconsider makes little attempt to explain
its lengthy failure to comply with repeated Court Orders. At argument, counsel
intimated that Plaintiff is a small business that, perhaps, tried to do too much.
Plaintiff does point out, however, that the dismissal of claims is the most severe
sanction the Court has in its arsenal and that it should not be used in this case
because the failures were not willful or in bad faith and no one has suffered
prejudice. In support of those positions, Plaintiff relies upon John v. Med. Ctr.
Hosp. of Vermont, Inc., 136 Vt. 517, 519 (1978).
No doubt, in the discovery-sanction context, our High Court has chided lower
courts for dismissing claims without evidence of willful misconduct and prejudice.
Id. (reversing dismissal because court made no findings that there had “been bad
faith or deliberate and willful disregard for the court’s orders, and further, that the
party seeking the sanction ha[d] been prejudiced”).
Somewhat closer to the present situation is Ying Ji v. Heide, 2013 VT 81, ¶ 6,
194 Vt. 546, 549. There, the Supreme Court reversed the trial court’s dismissal of a
case based on counsel’s failure to attend a status conference. The Court relied, in
part, on its ruling in John. The Court noted that a dismissal under Rule 41(b) is
subject to an abuse of discretion standard. Id. 2013 VT 81, ¶ 9, 194 Vt. at 551; see
State v. Snide, 144 Vt. 436, 440 (1984) (dismissal under Vt. R. Civ. P. 41(b) are
reviewed for abuse of discretion). The Court then counseled that the power to
dismiss based on a failure to comply with court orders or failure to prosecute is
limited by important countervailing considerations. Among them: the desire for
cases to be decided on the merits; the sanction should be “proportionate” to the
offense; courts should give fair warning and an opportunity to be heard regarding
the sanction. Heide, 2013 VT 81, ¶¶ 6-8, 194 Vt. at 549–50.
Following Heide, the Court approved of a dismissal by the trial court where
the trial court had refused to grant a continuance to plaintiff, and the plaintiff
simply refused to proceed with the trial. Cegalis v. Knutsen, No. 22-AP-280, 2023
WL 3271524, at *3 (Vt. May 5, 2023). The Court concluded that the factors cited by
Heide were important but that the trial court continues to have discretion to
dismiss based on Plaintiff’s failure to prosecute. Id.

1079, 2022 WL 2869712, at *2 (Fed. Cir. July 21, 2022), cert. denied, 143 S. Ct.
2464, 216 L. Ed. 2d 434 (2023) (“The Court of Federal Claims may properly dismiss
a case under Rule 41(b) when the plaintiff has failed to ‘prosecute or to comply with’
the Rules or a ‘court order’ by ruling sua sponte or by granting a motion filed by the
parties. R. Ct. Fed. Cl. 41(b).”). Plaintiff’s citation of an unpublished three-Justice
opinion does not dissuade the Court from concluding that our federal friends’ view
of the Rule is the more sound.
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In the federal courts, cases are more on point. There, dismissals of a
corporation’s claims for its failure to obtain counsel have occurred with some
frequency. As in Vermont, dismissal under such circumstances is still viewed as a
severe sanction. In the United States Court of Appeals for the Third Circuit,
dismissal of corporate parties for failing to obtain counsel is typically evaluated by
examining the so-called “Poulis factors,” which are similar to those noted in Heide:
(1) the extent of the party's personal responsibility; (2) the prejudice
to the adversary caused by the failure to meet scheduling orders and
respond to discovery; (3) a history of dilatoriness; (4) whether the
conduct of the party or the attorney was willful or in bad faith; (5) the
effectiveness of sanctions other than dismissal, which entails an
analysis of alternative sanctions; and (6) the meritoriousness of the
claim or defense.

Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984).

Despite such considerations, “it is not uncommon for a court to summarily
dismiss a corporate party for failure to retain counsel–that is, without a full Poulis
analysis.” Sync Labs LLC v. Fusion Mfg., No. 2:11-CV-3671 WHW, 2014 WL
2601907, at *3–4 (D.N.J. June 11, 2014) (collecting cases); see United States v. High
Country Broad. Co., 3 F.3d 1244, 1245 (9th Cir. 1993) (dismissing case after
corporation failed to follow order to retain counsel); Palazzo v. Gulf Oil Corp., 764
F.2d 1381, 1386 (11th Cir. 1985) (affirming lower court dismissal of claims after
affording corporation two chances to obtain counsel); Donovan v. Road Rangers
Country Junction, Inc., 736 F.2d 1004, 1005 (5th Cir. 1984) (per curiam) (“judge
directed under established law that counsel be hired to represent the corporation….
[party] declined to hire counsel to represent the corporation so the district court
properly struck the defenses of the corporation”); Shapiro, Bernstein & Co. v. Cont’l
Rec. Co., 386 F.2d 426, 427 (2d Cir. 1967) (“cavalier disregard for a court order”
requiring corporation to obtain counsel warranted default judgment).

In this case, even applying the considerations set out in Heide and John,
Plaintiff’s conduct was unjustified in the extreme. Given the sheer number of times
that the Court explained orally the requirement of obtaining counsel or making a
motion to proceed pro se and the number of times it followed up those oral
explanations with written Orders, it is plain that the failure of Plaintiff to take
action was “deliberate and [in] willful disregard for the court’s orders.” John, 136
Vt. at 519. It also amounted to a failure of Plaintiff to prosecute its case.
Plaintiff engaged in further dilatory conduct regarding mediation. In
January 2024, it agreed to engage in early mediation, and the Court ordered that it
be completed within 90 days. The Court accepts Defendant’s testimony that she

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worked with a mediator to provide potential mediation dates to Plaintiff, but it
failed to respond to the request to select a date.
Additionally, the Court gave full and fair warning of the dismissal sanction.
Again, both orally and in written Orders, the Court provided no fewer than five
warnings as to the sanction that would be levied should Plaintiff fail to comply with
the Orders. At the January 2024 hearing, Plaintiff’s representative indicated her
understanding of the potential sanction. The Court also granted multiple
extensions to allow Plaintiff the chance to comply with its Orders. Each extension
was afforded and passed with no action taken by Plaintiff. Cf. Heide, 2013 VT 81, ¶
8, 194 Vt. at 550 (noting that trial court “could have,” but did not, “warn[] plaintiff
that any future failure to comply with a directive of the court would result in
sanctions, including the possibility of dismissal”). Nor did Plaintiff ever seek
additional time or indicate that it was having difficulty obtaining counsel.
The judicial system and the Defendant has suffered prejudice as a result of
Plaintiff’s inaction. The Court has held four hearings and issued two oral and four
written Orders on this preliminary question. The case was pending from October
2023 through today with no actual progress due to Plaintiff’s failures to obtain
counsel and engage in court-ordered mediation. While the Court is cognizant of
Plaintiff’s point that the expenditure of court resources may not always amount to
“prejudice,” in this instance, multiple hearings were held and court time devoted to
a matter that was fully within Plaintiff’s control and, yet, it refused to act. The
Court certainly could have used that time and its resources to devote to other
matters pending before it.
Even if the delay to the court system were ignored, there is palpable
prejudice to the Defendant. She took time from her family and appeared at each
hearing on this issue. She continues to recover from cancer surgery, and the Court
finds credible her testimony as to the stress and anxiety she suffered from
participating in the multiple court hearings. She also devoted time and effort to set
up the mediation, which did not move forward due to Plaintiff’s inaction. And, she
incurred $1,000 in consultation costs for assistance in responding to the motion to
reconsider.
The last consideration is whether alternative sanctions may be appropriate to
satisfy the ends of justice. There are limited sanctions that the Court can come up
with that would remedy a circumstance where a party has so willfully failed to take
action that was repeatedly ordered by the Court and that is necessary for the case–
which Plaintiff filed–to move forward. Defendant is self-represented, so attorney’s
fees are not a possibility. Even if the Court were to award her the consultation
costs she incurred regarding the instant motion, that would not compensate

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Defendant for the prior failures to comply with the Orders, nor would it actually
remedy the prejudice caused. Were we looking at an initial order, perhaps, the path
of contempt could have been followed. But, here, the Court, instead, afforded
Plaintiff multiple chances to comply with the Orders, gave Plaintiff multiple
extensions, and provided fair warning of the consequences for failing to follow the
Order. Steeves v. United States, No. 2022-1079, 2022 WL 2869712, at *2 (Fed. Cir.
July 21, 2022), cert. denied, 143 S. Ct. 2464, 216 L. Ed. 2d 434 (2023) (“Rule 41(b)
dismissal is especially appropriate in cases where the plaintiff repeatedly and
without valid justification ignore[s] both court-imposed deadlines and court rules.”
(internal quotation omitted)).
Nonetheless, the Court has considered the circumstances anew in light of
Plaintiff’s motion to reconsider; the authorities noted above; the advent (although
tardy) of counsel; and the strong preference for matters to be adjudicated on the
merits, Desjarlais v. Gilman, 143 Vt. 154, 158-89 (1983). The Court continues to
believe that a severe sanction is warranted in light of Plaintiff’s willful failures to
follow the Court’s multiple Orders; and the impact those failures have wrought
upon this case, the Defendant, and the judicial system. After calm reflection,
however, the Court concludes that dismissal of Plaintiff’s affirmative claims is a
sufficient and more balanced remedy and deterrent. Though imposing the very
strong sanction of dismissing its affirmative claims, such a result allows Plaintiff a
chance to maintain its answer and defend against the merits of Defendant’s
counterclaim.
Accordingly, the Court will not strike Plaintiff’s answer to the counterclaim.
Plaintiff may defend against Defendant’s counterclaim, and its former affirmative
claims may be considered solely as a potential set off to any claims and damages
that may be established by Defendant.
Finally, as the Court had previously ordered, the Court expects the parties to
complete early mediation. It shall be completed within 60 days.

Conclusion
In light of the foregoing, Plaintiff’s motion to reconsider is granted, in part,
and denied, in part. Plaintiff’s affirmative claims remain dismissed. Plaintiff’s

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answer is unstricken. The parties shall engage in mediation within 60 days. If the
matter is not resolved, a proposed discovery schedule shall be submitted within 14
days of the completion of mediation.
Electronically Signed on December 24, 2024, per V.R.E.F. 9(d)

__________________________
Timothy B. Tomasi
Superior Court Judge

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