Rondeau v. State, No. 494-9-18 Wncv (Tomasi, J., June 12, 2020).

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the 

accompanying data included in the Vermont trial court opinion database is not guaranteed.]

STATE OF VERMONT

SUPERIOR COURT CIVIL DIVISION

Washington Unit Docket No. 494-9-18 Wncv

Michael Rondeau,

Plaintiff

v.

State of Vermont,

Defendant

Opinion and Order on Motion to Dismiss 

Defendant State of Vermont has moved to dismiss this action under Vt. R. 

Civ. P. 37 based on Plaintiff’s continued failure to comply with the Court’s discovery 

orders. Plaintiff has not opposed the motion. The Court makes the following 

determinations. 

This is the State’s second motion for dismissal due to alleged discovery 

violations. On March 20, 2020, following a hearing, the Court issued findings and 

conclusions regarding the first motion. It issued significant discovery sanctions 

against Plaintiff for his willful failure to comply with his discovery obligations and a 

2019 Court Order compelling discovery responses. The Court declined to issue the 

ultimate sanction of dismissal and, instead, granted Plaintiff 30 days to submit 

discovery responses. Twice that length of time has now passed, and Plaintiff has 

not complied with pending discovery requests, with this Court’s 2019 Order 

compelling those responses, or with this Court’s March 20 Order. 
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The Court incorporates by reference the findings and conclusions set out in 

its March 20 Order. Based on those and the continued failure to comply with 

discovery obligations and Court Orders, the Court agrees that dismissal is 

warranted. The Court has already found that Plaintiff’s conduct in connection with 

the failure to provide discovery has been the result of “gross indifference, bad faith, 

or willfulness.” John v. Med. Ctr. Hosp. of Vt., Inc., 136 Vt. 517, 519 (1978). The 

Court has also already found that Defendant has been prejudiced by the delayed 

responses, which were originally due almost a year ago. Trevor v. Icon Legacy 

Custom Modular Homes, LLC, 2019 VT 54, ¶¶ 61–63. 

In addition, as Defendant rightly notes, “a party’s persistent refusal to 

comply with a discovery order presents sufficient evidence of willfulness, bad faith 

or fault” to support dismissal. SynEcology Partners, L3C v. Bus. RunTime, Inc., 

2016 VT 29, ¶ 19, 201 Vt. 424, 432 (internal quotation omitted). And, “the law 

presumes prejudice from unreasonable delay.” Id. at ¶ 19, 201 Vt. at 432. While 

that prejudice can be rebutted, id., in this instance, Defendant has failed to do so, 

either in regard to circumstances leading to the March 20 Order or now. 

In its March 20 Order, the Court made clear the gravity of Plaintiff’s past 

failures to meet his discovery obligations. It gave him one final opportunity to meet 

those demands along with a strict timeline. Despite that opportunity, he has failed 

to produce the ordered discovery, and the ongoing delay in this matter has resulted 

in prejudice to Defendant and untoward delay in the resolution of this case. 

WHEREFORE, the case is dismissed with prejudice.
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Dated this __ day of June, 2020, at Montpelier, Vermont. 

_____________________

Timothy B. Tomasi

Superior Court Judge