Norris v. Greater Cleveland Regional Transit Auth.

2022 Ohio 3552, 201 N.E.3d 316

• Court: Ohio Court of Appeals
• Decided: October 6, 2022
• Docket: 111238 & 111383
• Status: Published

Opinion

[Cite as Norris v. Greater Cleveland Regional Transit Auth., 2022-Ohio-3552.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

BYRON NORRIS, :

Plaintiff-Appellant, : Nos. 111238 and 111383 v. :

GREATER CLEVELAND REGIONAL : TRANSIT AUTHORITY, : Defendants-Appellees.

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: October 6, 2022

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-20-935542

Appearances:

Daniel Mark Katz Co LPA and Murray Richelson, for appellant.

Sheryl King Benford, General Counsel — Deputy General Manager for Legal Affairs, Keith A. Ganther, Acting Deputy General Counsel — Litigation, and Brian R. Gutkoski, Associate Counsel II, for appellee. MICHELLE J. SHEEHAN, P.J.:

Plaintiff-appellant Byron Norris filed a tort claim against defendant-

appellee Greater Cleveland Regional Transit Authority (“RTA”) alleging negligent

operation of a bus resulted in injuries to him and damages to his vehicle. The trial

court ultimately granted RTA’s motion to dismiss for want of prosecution and

dismissed the case with prejudice. Norris filed a Civ.R. 60(B) motion for relief from

judgment, alleging he was unable to attend a scheduled deposition because he was

arrested and incarcerated several days before the deposition. He claimed that his

incarceration constituted excusable neglect. The docket, however, reflects a drawn-

out history of litigation and that Norris’s lack of participation preceded his

incarceration. Under the circumstances of this case, the trial court properly found

Norris’s incarceration did not constitute excusable neglect and its dismissal of the

case with prejudice was not an abuse of discretion.

Procedural History

The case stemmed from an incident in July 2020 when Norris’s vehicle

collided with the rear of an RTA bus. The accident report prepared by Patrolman

Tarik Thomas concluded that Norris “failed to yield the right of way to the GCRTA

bus, which was the primary cause of the accident.” In August 2020, Norris filed the

instant lawsuit alleging RTA was negligent in operating the bus. RTA filed an answer

and a counterclaim.

The docket reflects the matter was set for a case-management

conference on December 30, 2020, and the trial court warned that a failure to appear at the conference may result in sanctions including a dismissal of the case.

The conference was subsequently cancelled for unknown reasons. The trial court

scheduled another case-management conference for March 3, 2021, and again

warned that a failure to appear may result in sanctions including a dismissal. Due

to COVID-19, the trial court converted the in-person conference to an email case

conference. Following the email conference, on February 23, 2021, the trial court

set forth deadlines for discovery, expert reports, and dispositive motions and also

scheduled a final pretrial for July 27, 2021, and trial for August 16, 2021. The court

warned that a failure to appear at any scheduled date will result in a dismissal with

prejudice.

To meet the discovery deadline of March 12, 2021, RTA scheduled

Norris’s deposition on March 8, 2021. Norris appeared for the deposition but

refused to answer questions and abruptly terminated his counsel’s representation.

On the same day, his counsel filed a motion to withdraw from further

representation, stating that “Plaintiff has failed to cooperate, and Plaintiff has

discharged the undersigned.”

Thereafter, RTA moved for summary judgment. Norris, now

represented by another counsel from the same law firm, filed a notice for voluntary

dismissal pursuant to Civ.R. 41(A), stating that the case had been settled and

plaintiff voluntarily dismissed the case without prejudice. RTA asked the court to

strike the notice, informing the court that the case had not been settled and that its compulsory counterclaim was pending. Norris’s new counsel withdrew the

voluntary dismissal, explaining that the notice was filed in error.

On June 22, 2021, the trial court journalized an entry requiring

plaintiff’s counsel to submit various documents by July 16, 2021, and it again warned

that a failure to submit the requested documents will result in the case being

dismissed for a failure to prosecute. The trial court subsequently denied RTA’s

motion for summary judgment. On October 4, 2021, RTA filed a notice of deposition

of Norris for October 18, 2021.

Apparently, on October 10, 2021, Norris was arrested for having

weapons while under disability. He, however, never notified the court, his counsel,

or RTA of his arrest and incarceration or his unavailability for the deposition. On

the scheduled deposition day, his original counsel, apparently reengaged by Norris,

appeared and reported that he expected Norris’s appearance because he had notified

Norris of the deposition. Norris never appeared for the second attempted

deposition.

Neither Norris nor his counsel notified RTA or the court that his non-

appearance at the deposition was due to his incarceration. On October 25, 2021,

RTA filed a motion to dismiss with prejudice for want of prosecution pursuant to

Civ.R. 41(B)(1). RTA stated that, despite its reasonable notifications and attempts

on March 8, 2021, and October 18, 2021, to depose Norris, he failed to make himself

available for the depositions, which made it impossible for RTA to prepare its

defense and to meaningfully participate in any pretrial proceedings. No opposition to the motion to dismiss was filed by Norris’s counsel.

Seventy-seven days after RTA filed the motion to dismiss, the trial court granted the

dismissal on January 11, 2022. The trial court found the drawn-out history of the

case made dismissal with prejudice appropriate. The court noted Norris failed to

make himself available for scheduled depositions; removed and reengaged his

counsel but still failed to appear for a properly noticed deposition; and failed to make

himself available for phone conferences when instructed. The trial court pointed

out that Norris’s dilatory conduct required multiple filings by the defendant to

obtain necessary discovery and he had been advised via his counsel that a failure to

comply with discovery requests would result in a dismissal with prejudice.

Three days after the trial court granted the motion to dismiss, on

January 14, 2022, Norris, through his original counsel, filed a Civ.R. 60(B) motion

for relief from judgment. He informed the court, for the first time, that Norris was

arrested on October 10, 2021, and therefore unable to attend the scheduled

deposition on October 18, 2021. Norris maintained that he “demonstrate[d]

excusable neglect [as to] why the Plaintiff could not respond to discovery” and was

entitled to relief from judgment.

RTA opposed the motion, arguing Norris’s incarceration did not

constitute excusable neglect meriting a relief from judgment. After Norris filed the

motion for relief from judgment, he also filed a notice of appeal from the trial court’s

judgment dismissing the case, in 8th Dist. Cuyahoga No. 111238. This court remanded the matter to the trial court to rule on the pending Civ.R. 60(B) motion.

Upon remand, the trial court denied Norris’s Civ.R. 60(B) motion.

The court found Norris to have continuously failed to participate in the

development of his own case and to communicate with his own counsel and had

shown a disregard for the court’s orders and properly noticed depositions. The court

noted that between October 25, 2021, when RTA filed the motion to dismiss for want

of prosecution, and January 11, 2022, when the court granted the motion to dismiss,

there was no indication from Norris or his counsel that he was unavailable due to

his incarceration. The court also observed that there was no excuse offered for his

lack of cooperation or participation at the March 8, 2021 deposition and multiple

telephone conferences and that no settlement negotiations were ever communicated

to the court as requested. The trial court, noting that it was Norris’s responsibility

to communicate with his counsel and to participate in counsel’s representation,

found that Norris’s “willful disregard for the court orders, civil rules, local rules, and

properly noticed depositions constitute[d] a complete disregard for the judicial

system” and that his incarceration more than a year after he filed the complaint did

not qualify as excusable neglect.

Norris appealed from the judgment denying his Civ.60(B) motion, in

8th Dist. Cuyahoga No. 111383. This court consolidated the two appeals. On appeal,

Norris raised the following three assignments for our review, which relate to both

the trial court’s dismissal of the case and its denial of his Civ.R. 60(B) motion: I. The trial court erred in dismissing plaintiff’s complaint with prejudice for failing to prosecute when such dismissal was ineffective as it violates Civil Rule 30(A).

II. The trial court erred in failing to provide notice to the plaintiff of its intent to dismiss the case with prejudice.

III. The dismissal with prejudice for failing to comply with discovery was an abuse of discretion.

Before we address the merits of Norris’s claims, we note that RTA

argues Norris waives all claims regarding the dismissal because he did not oppose

RTA’s motion to dismiss. We recognize this court has considered issues raised in

the motion to dismiss waived if the motion is unopposed. Demsey v. Haberek, 8th

Dist. Cuyahoga No. 104894, 2017-Ohio-1453, ¶ 7. In the interest of justice, however,

we will review the claims raised in this appeal on its merits. Id. As the assignments

of error are related, we address the assignments of error jointly for ease of

discussion.

Law and Analysis

Civ.R. 41(B)(1) governs dismissal for a failure to prosecute. It states,

“Where the plaintiff fails to prosecute, or comply with these rules or any court order,

the court upon motion of a defendant or on its own motion may, after notice to the

plaintiff’s counsel, dismiss an action or claim.”

“The decision to dismiss a case with prejudice under Civ.R. 41(B)(1) is

within the trial court’s discretion.” Miller v. Plain Dealer Publishing Co., 8th Dist.

Cuyahoga No. 101335, 2015-Ohio-1016, ¶ 11, citing Tarquinio v. Estate of Zadnik,

8th Dist. Cuyahoga Nos. 95767 and 96246, 2011-Ohio-3980, ¶ 20, citing Jones v. Hartranft, 78 Ohio St.3d 368, 371, 678 N.E.2d 530 (1997). However, because a

dismissal with prejudice precludes a judgment on the merits of plaintiff’s claims, we

review a trial court’s decision to dismiss a case with prejudice “under a heightened

abuse-of-discretion standard.” Id., citing Simmons v. Narine, 2014-Ohio-2771, 15

N.E.3d 1206, ¶ 7 (8th Dist.).

As this court explained, the trial court’s authority under Civ.R. 41(B)(1)

is based on its “power to manage and administer its own docket and to ensure the

orderly and expeditious disposition of cases.” N. Elec., Inc. v. Amsdell Constr., Inc.,

8th Dist. Cuyahoga No. 99775, 2013-Ohio-5433, ¶ 9, citing Pembaur v. Leis, 1 Ohio

St.3d 89, 91, 437 N.E.2d 1199 (1982). “The court’s inherent power to control its

docket includes the discretionary power to dismiss actions as a sanction for

disregarding court orders or failing to prosecute.” Id., citing Civ.R. 41(B)(1) and

Jones, supra.

The factors to consider in reviewing a Civ.R. 41(B)(1) dismissal with

prejudice include the drawn-out history of the litigation and evidence that a plaintiff

is deliberately proceeding in dilatory fashion. 533 Short N. LLC v. Zwerin, 2017-

Ohio-9194, 103 N.E.3d 258, ¶ 21 (10th Dist.). Therefore, while we apply a

heightened standard of review for a dismissal with prejudice, we will affirm the trial

court’s decision if the conduct of the party is “‘so negligent, irresponsible,

contumacious or dilatory as to provide substantial grounds for a dismissal with

prejudice for a failure to prosecute * * *.’” Id., quoting Harris v. Harris, 10th Dist.

Franklin No. 98AP-1077, 1999 Ohio App. LEXIS 2867 (June 24, 1999). Here, the trial court granted RTA’s motion to dismiss with prejudice

77 days after the motion was filed and remained unopposed. Three days after the

judgment, Norris filed a Civ.R. 60(B) motion for relief from judgment, alleging he

was arrested on October 10, 2021, and unable to attend the October 18, 2021

deposition, and claiming his incarceration constituted excusable neglect.

In order to prevail on a motion for relief from judgment under

Civ.R. 60(B), the moving party must demonstrate that (1) the party has a

meritorious defense or claim to present if relief is granted; (2) the party is entitled

to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the

motion is made within a reasonable time. GTE Automatic Elec., Inc. v. ARC

Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the

syllabus. If any of these three requirements is not met, the motion should be

overruled. Svoboda v. Brunswick, 6 Ohio St.3d 348, 351, 453 N.E.2d 648 (1983).

Regarding the second requirement, Civ.R. 60(B) states that “[o]n motion and upon

such terms as are just, the court may relieve a party or his legal representative from

a final judgment, order or proceeding for the following reasons: (1) mistake,

inadvertence, surprise or excusable neglect * * *.”

We recognized that “a court cannot dismiss a civil complaint from an

incarcerated individual based solely on the fact that the individual is incarcerated.”

Sankey v. Fasano, 2018-Ohio-3107, 107 N.E.3d 17, ¶ 23 (11th Dist.). “[D]ismissal of

a pro se inmate’s complaint for want of prosecution where no means of appearance

is available is an abuse of the trial court’s discretion.” Id. at ¶ 24. See also Porter v. Rose, 8th Dist. Cuyahoga No. 79697, 2002-Ohio-3432, ¶ 19. “Where an action was

dismissed for a failure to prosecute due to the inmate’s incarceration and inability

to appear at a hearing, and the inmate had been an active participant in the

proceedings,” a dismissal with prejudice would not advance the judicial principle of

deciding cases on the merits. Sankey at ¶ 23

Norris’s history of nonparticipation and dilatory conduct that

preceded his incarceration distinguishes this case from the foregoing cases involving

an incarcerated party. As the trial court found, he failed to make himself available

for phone conferences when specifically instructed to do so; never communicated

settlement negotiations to the trial court upon its request; and, while he appeared at

the first deposition, he refused to cooperate at the deposition. Furthermore, Norris

was represented by counsel for the most part of the case; while he terminated his

original counsel in March 2021, a substitute counsel from the same law firm

subsequently represented him until October 18 2021, when his original counsel

appeared at the second scheduled deposition (but was not made aware of Norris’s

incarceration).

Under the circumstances of this case, the trial court properly found

Norris’s incarceration more than a year after he filed the complaint did not

constitute excusable neglect. The procedural history of the case reflects that Norris

had not been an active participant in the case before his incarceration. The inaction

of a defendant is not excusable neglect if it can be labeled as a “complete disregard

for the judicial system.” Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18, 20, 665 N.E.2d 1102 (1996). The trial court here specifically found Norris to have displayed

a complete disregard for the judicial system and acted in a dilatory manner. “The

trial court is in the best position to judge whether delays in the prosecution of a case

are due to legitimate reasons when determining whether dismissal for lack of

prosecution is warranted.” Miller, 2015-Ohio-1016, at ¶ 15, citing Gelske v. 800

Constr. Co., 8th Dist. Cuyahoga No. 80163, 2002-Ohio-3434, ¶ 13. It is Norris’s

dilatory conduct throughout the history of the case — including his failure to notify

the defendant, the court, and apparently his counsel of his incarceration — not his

failure to appear at the second deposition, that led to the dismissal of the case with

Indeed, on appeal, Norris does not appear to argue that his

incarceration constituted excusable neglect. Rather, he argues on appeal that the

trial court’s ruling contravened Civ.R. 30(A).

Civ.R. 30(A) states, in pertinent part, “[t]he deposition of a person

confined in prison may be taken only by leave of court on such terms as the court

prescribes.” The rule is not applicable under the circumstances of this case. The

rule prohibits the deposition of a confined person unless permitted by the trial court.

At the time RTA’s notice of deposition was filed on October 4, 2021, Norris was not

yet arrested, and Norris failed to make RTA or the trial court aware of his arrest on

October 10, 2021, until January 14, 2022, when he filed the Civ.R. 60(B) motion.

Norris’s reliance in Civ.R. 30(A) is misplaced. Norris also argues the trial court failed to provide him with notice with

its intent to dismiss the case with prejudice. The claim lacks merit as well. “The

notice requirement of Civ.R. 41(B)(1) is satisfied ‘when counsel has been informed

that dismissal is a possibility and has had a reasonable opportunity to defend against

dismissal.’” Walker v. Cleveland Clinic Found., 8th Dist. Cuyahoga No. 91648,

2009-Ohio-2261, ¶ 7, quoting Quonset Hut, Inc. v. Ford Motor Co., 80 Ohio St.3d

46, 684 N.E.2d 319 (1997). Furthermore, “[w]hen a defendant files a motion to

dismiss for want of prosecution, and the court affords the plaintiff the opportunity

to respond, the notice requirement of Civ.R. 41(B)(1) is met.” Walker at ¶ 10, citing

Shafron v. Erie Rd. Dev. Co., 8th Dist. Cuyahoga No. 90675, 2008-Ohio-3813, ¶ 15.

See also Sazima v. Chalko, 86 Ohio St.3d 151, 156, 712 N.E.2d 729 (1999) (a pending

motion to dismiss was sufficient to put the plaintiff on implied notice of an

impending dismissal).

Here, RTA filed the motion to dismiss for want of prosecution on

October 25, 2021. The motion was served upon Norris’s original counsel, who

represented him at the October 18, 2021 deposition and apparently continued to

represent him because no notice of withdrawal was filed. The trial court did not

grant the motion until 77 days later. Counsel was informed of the possibility of

dismissal and was afforded ample opportunity to respond to the motion to dismiss.

As such, the Civ.R. 41(B)(1) notice requirement was met in this case.

For the foregoing reasons, appellant’s first, second, and third

assignments are without merit. The trial court’s judgment is affirmed. Judgment affirmed.

It is ordered that appellees recover of appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule

27 of the Rules of Appellate Procedure.

__________________________________ MICHELLE J. SHEEHAN, PRESIDING JUDGE

MARY EILEEN KILBANE, J., and EILEEN T. GALLAGHER, J., CONCUR