ATTORNEY FOR APPELLANTS: ATTORNEYS FOR APPELLEES:
RANDY A. GODSHALK JULIE BLACKWELL GELINAS
Hammond, Indiana NICHOLAS C. PAPPAS
Locke Reynolds LLP
MARK A. LIENHOOP
MATTHEW J. HAGENOW
Newby, Lewis, Kaminski & Jones, LLP
La Porte, Indiana
IN THE COURT OF APPEALS OF INDIANA
ROBERT BELCASTER and ) CAROLYN BELCASTER, ) ) Appellants-Plaintiffs, ) ) vs. ) No. 46A05-0209-CV-466 ) BECKY MILLER and MATTHEW MILLER, ) And FRED DEMPSEY, Individually and as ) owner of FAIRFIELD OF AMERICA, INC., ) ) Appellees-Defendants. )
APPEAL FROM THE LAPORTE SUPERIOR COURT
The Honorable Steven E. King, Judge
Cause No. 46D02-9703-CP-36
April 7, 2003
OPINION - FOR PUBLICATION
Appellants App. p. 134. The Belcasters filed a timely motion to correct
errors, which the trial court denied. This appeal ensued.
The purpose of this rule is to ensure that plaintiffs will diligently pursue
their claims. The rule provides an enforcement mechanism whereby a defendant, or
the court, can force a recalcitrant plaintiff to push his case to resolution.
Benton v. Moore, 622 N.E.2d 1002, 1006 (Ind. Ct. App. 1993),
rehg denied. The burden of moving the litigation is upon the plaintiff,
not the court. It is not the duty of the trial court
to contact counsel and urge or require him to go to trial, even
though it would be within the courts power to do so. Id.
(quotation omitted). Courts cannot be asked to carry cases on their dockets
indefinitely and the rights of the adverse party should also be considered.
He should not be left with a lawsuit hanging over his head indefinitely.
Hill, 679 N.E.2d at 939-40 (quotation omitted).
Courts of review generally balance several factors when determining whether a trial court abused its discretion in dismissing a case for failure to prosecute. These factors include: (1) the length of the delay; (2) the reason for the delay; (3) the degree of personal responsibility on the part of the plaintiff; (4) the degree to which the plaintiff will be charged for the acts of his attorney; (5) the amount of prejudice to the defendant caused by the delay; (6) the presence or absence of a lengthy history of having deliberately proceeded in a dilatory fashion; (7) the existence and effectiveness of sanctions less drastic than dismissal which fulfill the purposes of the rules and the desire to avoid court congestion; (8) the desirability of deciding the case on the merits; and (9) the extent to which the plaintiff has been stirred into action by a threat of dismissal as opposed to diligence on the plaintiffs part. Lee v. Friedman, 637 N.E.2d 1318, 1320 (Ind. Ct. App. 1994). The weight any particular factor has in a particular case appears to depend upon the facts of that case. Id. However, a lengthy period of inactivity may be enough to justify dismissal under the circumstances of a particular case, especially if the plaintiff has no excuse for the delay. Id.
Several of these factors favor the trial courts dismissal of the Belcasters lawsuit for failure to prosecutemost importantly, the length of the delay and the reason for the delay. First, the evidence shows that the Belcasters took no action in this case from December 2000, the day they responded to the trial courts order compelling them to provide discovery responses to Dempsey and Fairfield, to October 2001, the day they filed a motion to set trial in response to Dempsey and Fairfields motion to dismiss for failure to prosecute. Thus, the length of the delay was approximately ten months. Second, the Belcasters provide no reason for this delay on appeal. Their only mention is one sentence in their brief, which provides that the Belcasters cited sufficient cause why their action should not be dismissed. Appellants Br. p. 17. However, they do not explain what that sufficient cause is. Third, the evidence shows that the Belcasters have a lengthy history of having deliberately proceeded in a dilatory fashion. In addition to the approximate ten-month delay preceding the trial courts dismissal, there were other periods of delay, one as long as eleven months, where no action was taken. Oftentimes, it was Defendants efforts that moved the case forward. The trial court found as much when it stated, [T]his cause reflects a pattern in which the catalyst for action to move this cause forward to a conclusion has resulted from the efforts of defendants, as opposed to the plaintiffs. Appellants App. p. 134. Finally, the extent to which the Belcasters have been stirred into action by a threat of dismissal as opposed to diligence on their part is clear. After nearly ten months of no action, the Belcasters finally filed a motion to set trial just eleven days after Dempsey and Fairfield filed a motion to dismiss for failure to prosecute.
We also recognize that there are factors that favor allowing the Belcasters to prosecute their complaint. First, there is a preference for deciding cases on the merits. Second, there appears to be no degree of personal responsibility on the part of the Belcasters. Third, less drastic sanctions than dismissal were available to the trial court. However, on this point we note that this Court has held that the court need not impose a sanction less severe than dismissal where the record of dilatory conduct is clear. Lee, 637 N.E.2d at 1321. After balancing the factors favoring the trial courts dismissal with those favoring allowing the Belcasters to prosecute their complaint, we cannot conclude that the trial court clearly abused its discretion in dismissing the Belcasters lawsuit nearly five years after it was filed for failure to prosecute.
Nevertheless, the Belcasters argue that the trial court erred in dismissing their complaint against Miller and Matthew because they filed their motion to set trial before Miller and Matthew filed their Trial Rule 41(E) motion to dismiss for failure to prosecute. In support, the Belcasters cite Benton. In Benton, this Court clarified that to avoid a T.R. 41(E) dismissal, a plaintiff must resume prosecution before the filing of the T.R. 41(E) motion. 622 N.E.2d at 1005. The Belcasters point out that although Dempsey and Fairfield filed their Trial Rule 41(E) motion to dismiss for failure to prosecute before they filed their motion to set trial on October 22, 2001, Miller and Matthew did not file their Trial Rule 41(E) motion to dismiss for failure to prosecute until after they had moved to set trial.
We first observe that the issue in Benton was whether the trial court abused its discretion in dismissing the plaintiffs lawsuit because the plaintiff resumed prosecution after the defendant filed a Trial Rule 41(E) motion to dismiss for failure to prosecute but before the trial court ruled on that motion. Id. Furthermore, Benton involved one defendant, not two sets of defendants as in this case. Because the purpose of Trial Rule 41(E) is to ensure that plaintiffs diligently pursue their claims, this purpose is fulfilled if one defendant files a motion to dismiss for failure to prosecute before a plaintiff resumes prosecution. Therefore, in lawsuits involving more than one defendant, trial courts do not need to separate the various defendants when determining whether the plaintiff resumed prosecution before the filing of a Trial Rule 41(E) motion to dismiss for failure to prosecute. The trial court did not abuse its discretion in dismissing the Belcasters lawsuit against Miller and Matthew. See footnote
BAKER, J., and DARDEN, J., concur.