Case Note: Scudder v. Concordia University, Inc.
Hanna C. Day, Coyne, Schultz, Becker & Bauer, S.C.

Scudder v. Concordia University, Inc. is a published court of appeals decision involving a plaintiff attorney’s “abject failure to prosecute her case.”[1] After the circuit court dismissed the plaintiff’s case for failure to prosecute, the court of appeals reversed because the plaintiff’s attorney “misled her by withholding pertinent information and convincing her that delays were due to the opposing party.”[2] The Scudder court ruled that the circuit court erroneously exercised its discretion by unreasonably concluding that the plaintiff was complicit in her attorney’s misconduct.[3] As a result, the plaintiff was given a second chance, despite the significant delays and cost to the defense.

I.              Facts

Plaintiff Krista Scudder hired an attorney to file a religious discrimination claim against Concordia University.[4]  The case was filed, and a scheduling conference was held.[5] Ms. Scudder was not aware of the scheduling conference, but her counsel attended.[6] The scheduling order was set, but Ms. Scudder was not given a copy by her counsel and was not made aware of the dates.[7]

Ms. Scudder’s counsel did not meet the witness designation deadline and never asked Ms. Scudder for witness information.[8] Concordia timely filed their witness designation and served discovery requests upon counsel.[9] Ms. Scudder never received Concordia’s witness designation or discovery requests.[10] 

Concordia made multiple attempts to obtain the discovery responses from counsel and counsel made multiple representations he would provide the same.[11] Concordia scheduled Ms. Scudder’s deposition, which was not attended by counsel or Ms. Scudder.[12] Ms. Scudder was not copied on any of the emails between counsel and had no knowledge of the pending discovery requests and scheduled deposition.[13] 

Ms. Scudder attempted to contact counsel in May, June, and July, with no response from counsel.[14] She emailed counsel information, but was not made aware the information she was providing counsel was for discovery responses.[15]

Concordia filed a motion for sanctions for failure to respond to discovery requests and non-compliance with a scheduling order and sought an order prohibiting Ms. Scudder from introducing damages evidence.[16] A hearing was held shortly after.[17] Ms. Scudder was never aware of this hearing and counsel did not attend either.[18] The trial court granted Concordia’s request.[19]

After not hearing from counsel for months, Ms. Scudder checked CCAP and found that she had been sanctioned.[20] Ms. Scudder requested copies of filings related to the sanctions and hired new counsel within a week of learning of the sanctions.[21]

II.            Dismissal

Ms. Scudder’s new counsel filed a motion for relief from the sanctions and to amend the scheduling order.[22] Concurrently, Concordia filed a motion for summary judgment on the grounds that Ms. Scudder had no admissible evidence and could not prove her claims.[23] The circuit court denied Ms. Scudder’s motion stating that three months of not hearing from your attorney is too long and she should have appreciated something was wrong.[24] The circuit court entered an order denying Ms. Scudder’s motion, granting summary judgment in favor of Concordia, and entered a judgment awarding costs against Ms. Scudder.[25]

III.          Appeal 

Ms. Scudder appealed.[26] On review, the court of appeals looked at whether there was a reasonable basis to impute complicity and responsibility to Ms. Scudder for her counsel’s egregious conduct under a two-prong test.[27] The Court considered (1) the client’s failure to act in a reasonable and prudent manner; and (2) the client’s knowledge of or complicity in that conduct.[28] When the client is blameless, the attorney’s conduct should not be imputed to the client.[29]

The Scudder court declined to impute counsel’s egregious conduct to Ms. Scudder because she acted reasonably and prudently. The following factors played a part in the court of appeal’s decision: (1) Ms. Scudder did not attend the scheduling conference; (2) she did not have personal knowledge of the deadlines in her case; (3) she was a first time litigant; (4) and she did not attend hearings where sanctions were issued.[30] Ms. Scudder’s unanswered calls for three months did not establish knowledge or complicity because missed phone calls does not automatically lead to a conclusion counsel is ignoring litigation requirements.[31] Simply put, there was no knowledge or complicity established on Ms. Scudder for her counsel’s egregious conduct. 

The court of appeals also ruled that the circuit court used the improper legal standard in imposing a sanction that effectively dismissed Ms. Scudder’s case. It is within the court’s discretion to dismiss a case as a sanction if the conduct is “egregious and there is no clear and justifiable excuse for the conduct.”[32] The circuit court did not dismiss the case outright but effectively dismissed the case by prohibiting Ms. Scudder from offering evidence to support her case and then granting summary judgment to the defendant.[33] In effectively dismissing the complaint, instead of other sanction options, the circuit court should have found there was no clear and justifiable excuse for the plaintiff’s behavior.[34] 

Author Biography: 

Hanna C. Day is an associate at Coyne, Schultz, Becker & Bauer, S.C. in Madison. She practices in civil litigation with a focus on insurance defense. She received her B.S. in 2019 from the University of Wisconsin-La Crosse and her J.D. in 2024 from University of St. Thomas – School of Law. Hanna is admitted to practice in Wisconsin.