Dismissal & entry of a default as sanctions; Maldonado v Ford Motor Co; Swain v Morse; Cummings v Wayne Cnty; Consideration of the Vicencio v Ramirez factors; MCR 2.313(B)(2)(c) & 1.109(E)(6); Waiver; Integrated Health Group, PC (IHG)

The court agreed that the misconduct allegedly committed by the individual plaintiff/counterdefendant (Dr. Huraibi) qualified “as the type of conduct for which a trial court, in the exercise of its inherent authority, would have discretion to sanction a litigant by dismissing a complaint or by entering a default.” But it vacated the order dismissing the third amended complaint and entering a default on the countercomplaint because the trial court failed to weigh all the relevant factors before imposing these sanctions. The court remanded for further proceedings and retained jurisdiction. The complaint “alleged several claims arising from an agreement to form a ‘super medical practice.’” Two of the defendants filed a countercomplaint against Huraibi and plaintiff-IHG “seeking injunctive relief and an accounting, and alleging” breach of contract and other claims. Early in the case, several “highly inflammatory and harassing e-mails were sent anonymously to counterplaintiffs, to counterplaintiffs’ members and agents, and to other individuals and entities with whom” they did business. After a hearing, the trial court determined that Huraibi was responsible for the “e-mails and had committed perjury both in his deposition and in affidavits filed with the trial court. As a result,” it dismissed his third amended complaint and entered a default against him as to the countercomplaint. The court found that his “alleged conduct arguably impaired counterplaintiffs’ ability to pursue redress against [him] and to defend themselves against any legal action initiated by him or IHG.” But the record did not indicate that the trial court gave the required careful consideration to the Vicencio factors. While it may have considered the first factor, it failed to address “Huraibi’s history of complying with previous court orders, or the nature and extent of the prejudice to counterplaintiffs flowing from the harassing e-mail campaign and” his alleged perjury. There was no indication from its “ruling how the harassing e-mail campaign, or Dr. Huraibi’s statements in his affidavits and deposition disavowing any involvement in sending the e-mails, impaired counterplaintiffs’ ability to defend against allegations in the third amended complaint, or to pursue their counterclaims against” him and IHG. It also failed to “consider whether a less drastic sanction would serve the interests of justice” here.