Motion for Dismissal
More often than you might imagine, a Motion for Dismissal may be appropriate, especially in situations where the opposing party fails to provide discovery, causes unnecessarily delays, fails to appear at court ordered hearings and otherwise fails or refuses to comply with court Orders (including Scheduling Orders).
In such cases, there are a number of factors which the court must consider (Vicencio v Ramirez, 211 Mich App 501, 507; 536 NW2d 280 (1995)).
“[D]ismissal is a drastic step that should be taken cautiously.”*** Before imposing dismissal as a sanction, the trial court must carefully evaluate all available options on the record and conclude that dismissal is just and proper.” VandenBerg v VandenBerg, 231 Mich App 497, 502; 586 NW2d 570 (1998); Vicencio, 211 Mich App at 506.
In making this evaluation, relevant factors the trial court should consider include but are not limited to (1) whether the violation was wilful or accidental; (2) the party’s history of refusing to comply with previous court orders; (3) the prejudice to the opposing party; (4) whether there exists a history of deliberate delay; (5) the degree of compliance with other parts of the court’s orders; (6) attempts to cure the defect; and (7) whether a lesser sanction would better serve the interests of justice.