MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 26 2018, 8:13 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEES Michael P. Quirk Codie J. Ross Quirk & Hunter, PC Reminger Co., L.P.A. Muncie, Indiana Fort Wayne, Indiana
IN THE COURT OF APPEALS OF INDIANA
Ryan E. Shreeve, December 26, 2018 Appellant-Plaintiff, Court of Appeals Case No. 18A-CT-1474 v. Appeal from the Delaware Circuit Court Muncie Chevrolet-Cadillac, Inc., The Honorable John M. Feick, a/k/a American Chevrolet Judge Cadillac of Muncie and Stephen Trial Court Cause No. DeAnda, 18C04-1708-CT-85 Appellees-Defendants.
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CT-1474 | December 26, 2018 Page 1 of 7 Statement of the Case [1] Ryan E. Shreeve appeals the trial court’s dismissal of his complaint against
Muncie Chevrolet-Cadillac, Inc., a/k/a American Chevrolet Cadillac of
Muncie, and Stephen DeAnda (collectively, “American Chevrolet”) for failure
to prosecute under Indiana Trial Rule 41(E). Shreeve raises one issue for our
review, namely, whether the trial court abused its discretion when it dismissed
his complaint.
[2] We affirm.
Facts and Procedural History [3] On August 31, 2017, Shreeve filed a complaint for damages against American
Chevrolet. American Chevrolet filed its answer and affirmative defenses on
September 25. Thereafter, on October 10, American Chevrolet issued
interrogatories and a request for production to Shreeve. On November 28, after
Shreeve had failed to respond to the interrogatories or the request for
production, American Chevrolet’s counsel wrote a letter to Shreeve’s counsel to
inquire into the status of Shreeve’s responses. In that letter, American
Chevrolet requested that Shreeve file his responses by December 5. Shreeve
again did not respond to American Chevrolet’s interrogatories or request for
production, so American Chevrolet’s counsel called Shreeve’s counsel.
Shreeve’s counsel informed American Chevrolet’s counsel that Shreeve would
provide responses within a few days. However, Shreeve still did not file his
Court of Appeals of Indiana | Memorandum Decision 18A-CT-1474 | December 26, 2018 Page 2 of 7 responses. Accordingly, on December 27, American Chevrolet filed a motion
to compel discovery.
[4] On January 2, 2018, the trial court issued an order to compel discovery. In that
order, the trial court ordered Shreeve to fully respond to American Chevrolet’s
interrogatories and request for production within two weeks. But Shreeve did
not comply with the court’s order. Accordingly, on January 23, American
Chevrolet filed a motion to dismiss Shreeve’s complaint for failure to prosecute.
Shreeve then filed his responses to American Chevrolet’s interrogatories and
request for production on January 31, but the responses were incomplete and
unsigned. After a hearing on American Chevrolet’s motion to dismiss, the trial
court granted American Chevrolet’s motion and dismissed Shreeve’s complaint
on March 29. This appeal ensued.
Discussion and Decision [5] Shreeve contends that the trial court abused its discretion when it dismissed his
complaint for failure to prosecute. Indiana Trial Rule 41(E) provides:
Whenever there has been a failure to comply with these rules or when no action has been taken in a civil case for a period of sixty (60) days, the court, on motion of a party or on its own motion shall order a hearing for the purpose of dismissing such case. The court shall enter an order of dismissal at plaintiff’s cost if the plaintiff shall not show sufficient cause at or before such hearing. Dismissal may be withheld or reinstatement of dismissal may be made subject to the condition that the plaintiff comply with these rules and diligently prosecute the action and upon such terms that the court in its discretion determines to be necessary to assure such diligent prosecution.
Court of Appeals of Indiana | Memorandum Decision 18A-CT-1474 | December 26, 2018 Page 3 of 7 [6] As this court has recently stated, “we will reverse a Trial Rule 41(E) dismissal
for failure to prosecute only in the event of a clear abuse of discretion, which
occurs if the trial court’s decision is against the logic and effect of the facts and
circumstances before it.” Petrovski v. Neiswinger, 85 N.E.3d 922, 924 (Ind. Ct.
App. 2018). “We will affirm if there is any evidence that supports the decision
of the trial court.” Belcaster v. Miller, 785 N.E.2d 1164, 1167 (Ind. Ct. App.
2003), trans. denied.
[7] The purpose of Trial Rule 41(E) 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.’” Belcaster, 785 N.E.2d at 1167 (quoting Benton v. Moore, 622 N.E.2d
1002, 1006 (Ind. Ct. App. 1993)). The plaintiff bears the burden of moving the
litigation and the trial court has no duty to urge or require counsel to go to trial,
even where it would be within the court’s power to do so. Lee v. Pugh, 811
N.E.2d 881, 885 (Ind. Ct. App. 2004). “‘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.’” Belcaster, 785 N.E.2d at 1167 (quoting Hill v. Duckworth, 679
N.E.2d 938, 939-40 (Ind. Ct. App. 1997)).
[8] In Indiana, courts must balance nine factors when determining whether to
dismiss a case for failure to prosecute. Petrovski, 85 N.E.3d at 925. Those
factors include:
Court of Appeals of Indiana | Memorandum Decision 18A-CT-1474 | December 26, 2018 Page 4 of 7 (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 plaintiff’s part.
Id. “‘The weight any particular factor has in a particular case appears to
depend upon the facts of that case.’” Id. (quoting Belcaster, 785 N.E.2d at 1167).
“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.” Belcaster, 785 N.E.2d at 1167. Although Indiana does
not require trial courts to impose lesser sanctions before applying the ultimate
sanction of dismissal, we view dismissals with disfavor, and dismissals are
considered extreme remedies that should be granted only under limited
circumstances. Caruthers v.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 26 2018, 8:13 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEES Michael P. Quirk Codie J. Ross Quirk & Hunter, PC Reminger Co., L.P.A. Muncie, Indiana Fort Wayne, Indiana
IN THE COURT OF APPEALS OF INDIANA
Ryan E. Shreeve, December 26, 2018 Appellant-Plaintiff, Court of Appeals Case No. 18A-CT-1474 v. Appeal from the Delaware Circuit Court Muncie Chevrolet-Cadillac, Inc., The Honorable John M. Feick, a/k/a American Chevrolet Judge Cadillac of Muncie and Stephen Trial Court Cause No. DeAnda, 18C04-1708-CT-85 Appellees-Defendants.
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CT-1474 | December 26, 2018 Page 1 of 7 Statement of the Case [1] Ryan E. Shreeve appeals the trial court’s dismissal of his complaint against
Muncie Chevrolet-Cadillac, Inc., a/k/a American Chevrolet Cadillac of
Muncie, and Stephen DeAnda (collectively, “American Chevrolet”) for failure
to prosecute under Indiana Trial Rule 41(E). Shreeve raises one issue for our
review, namely, whether the trial court abused its discretion when it dismissed
his complaint.
[2] We affirm.
Facts and Procedural History [3] On August 31, 2017, Shreeve filed a complaint for damages against American
Chevrolet. American Chevrolet filed its answer and affirmative defenses on
September 25. Thereafter, on October 10, American Chevrolet issued
interrogatories and a request for production to Shreeve. On November 28, after
Shreeve had failed to respond to the interrogatories or the request for
production, American Chevrolet’s counsel wrote a letter to Shreeve’s counsel to
inquire into the status of Shreeve’s responses. In that letter, American
Chevrolet requested that Shreeve file his responses by December 5. Shreeve
again did not respond to American Chevrolet’s interrogatories or request for
production, so American Chevrolet’s counsel called Shreeve’s counsel.
Shreeve’s counsel informed American Chevrolet’s counsel that Shreeve would
provide responses within a few days. However, Shreeve still did not file his
Court of Appeals of Indiana | Memorandum Decision 18A-CT-1474 | December 26, 2018 Page 2 of 7 responses. Accordingly, on December 27, American Chevrolet filed a motion
to compel discovery.
[4] On January 2, 2018, the trial court issued an order to compel discovery. In that
order, the trial court ordered Shreeve to fully respond to American Chevrolet’s
interrogatories and request for production within two weeks. But Shreeve did
not comply with the court’s order. Accordingly, on January 23, American
Chevrolet filed a motion to dismiss Shreeve’s complaint for failure to prosecute.
Shreeve then filed his responses to American Chevrolet’s interrogatories and
request for production on January 31, but the responses were incomplete and
unsigned. After a hearing on American Chevrolet’s motion to dismiss, the trial
court granted American Chevrolet’s motion and dismissed Shreeve’s complaint
on March 29. This appeal ensued.
Discussion and Decision [5] Shreeve contends that the trial court abused its discretion when it dismissed his
complaint for failure to prosecute. Indiana Trial Rule 41(E) provides:
Whenever there has been a failure to comply with these rules or when no action has been taken in a civil case for a period of sixty (60) days, the court, on motion of a party or on its own motion shall order a hearing for the purpose of dismissing such case. The court shall enter an order of dismissal at plaintiff’s cost if the plaintiff shall not show sufficient cause at or before such hearing. Dismissal may be withheld or reinstatement of dismissal may be made subject to the condition that the plaintiff comply with these rules and diligently prosecute the action and upon such terms that the court in its discretion determines to be necessary to assure such diligent prosecution.
Court of Appeals of Indiana | Memorandum Decision 18A-CT-1474 | December 26, 2018 Page 3 of 7 [6] As this court has recently stated, “we will reverse a Trial Rule 41(E) dismissal
for failure to prosecute only in the event of a clear abuse of discretion, which
occurs if the trial court’s decision is against the logic and effect of the facts and
circumstances before it.” Petrovski v. Neiswinger, 85 N.E.3d 922, 924 (Ind. Ct.
App. 2018). “We will affirm if there is any evidence that supports the decision
of the trial court.” Belcaster v. Miller, 785 N.E.2d 1164, 1167 (Ind. Ct. App.
2003), trans. denied.
[7] The purpose of Trial Rule 41(E) 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.’” Belcaster, 785 N.E.2d at 1167 (quoting Benton v. Moore, 622 N.E.2d
1002, 1006 (Ind. Ct. App. 1993)). The plaintiff bears the burden of moving the
litigation and the trial court has no duty to urge or require counsel to go to trial,
even where it would be within the court’s power to do so. Lee v. Pugh, 811
N.E.2d 881, 885 (Ind. Ct. App. 2004). “‘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.’” Belcaster, 785 N.E.2d at 1167 (quoting Hill v. Duckworth, 679
N.E.2d 938, 939-40 (Ind. Ct. App. 1997)).
[8] In Indiana, courts must balance nine factors when determining whether to
dismiss a case for failure to prosecute. Petrovski, 85 N.E.3d at 925. Those
factors include:
Court of Appeals of Indiana | Memorandum Decision 18A-CT-1474 | December 26, 2018 Page 4 of 7 (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 plaintiff’s part.
Id. “‘The weight any particular factor has in a particular case appears to
depend upon the facts of that case.’” Id. (quoting Belcaster, 785 N.E.2d at 1167).
“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.” Belcaster, 785 N.E.2d at 1167. Although Indiana does
not require trial courts to impose lesser sanctions before applying the ultimate
sanction of dismissal, we view dismissals with disfavor, and dismissals are
considered extreme remedies that should be granted only under limited
circumstances. Caruthers v. State, 58 N.E.3d 207, 211 (Ind. Ct. App. 2016).
[9] On appeal, Shreeve contends that the trial court abused its discretion when it
dismissed his complaint because his delay in responding was not lengthy and
because he had a valid reason for his delay. But, contrary to Shreeve’s
assertion, we hold that several factors support the trial court’s dismissal of
Shreeve’s complaint, namely, the length of the delay, the reason for the delay,
and the extent to which Shreeve was stirred to action by threat of dismissal. Court of Appeals of Indiana | Memorandum Decision 18A-CT-1474 | December 26, 2018 Page 5 of 7 [10] First, the evidence shows that Shreeve took no action in this case from the date
he filed his complaint on August 31, 2017, until he filed his discovery responses
on January 31, 2018. Indeed, Shreeve failed to respond to American
Chevrolet’s discovery requests even after American Chevrolet twice contacted
Shreeve to obtain his responses and after the trial court ordered Shreeve to
respond. Rather, Shreeve filed his responses fifteen days after the deadline
provided in the trial court’s order, and, even then, his responses were
incomplete and unsigned.
[11] Second, Shreeve did not provide a compelling reason for his delay in
responding prior to the trial court’s dismissal of his complaint. On appeal,
Shreeve contends that his “medical history and current medical conditions
played a large part” in his delay in responding. Appellant’s Br. at 10. But
Shreeve has not provided any evidence to indicate that he made that claim to
the trial court before or during the hearing on the motion to dismiss for failure
to prosecute.1 And Trial Rule 41(E) provides that a court “shall” enter an order
of dismissal if a plaintiff does not show good cause for the delay “at or before” a
hearing on the motion to dismiss.
[12] Finally, the extent to which Shreeve was stirred into action by a threat of
dismissal as opposed to his own diligence is clear. Despite two requests from
1 Shreeve did not provide a transcript of the hearing on the motion to dismiss for failure to prosecute. But, in his brief on appeal, he does not assert that he argued his medical condition to the trial court in that hearing. Rather, the record indicates that, for the first time in a motion to correct error, Shreeve argued his medical condition to the trial court as a reason for his failure to timely respond.
Court of Appeals of Indiana | Memorandum Decision 18A-CT-1474 | December 26, 2018 Page 6 of 7 American Chevrolet and a trial court order compelling Shreeve to respond,
Shreeve did not take any action in this case until eight days after American
Chevrolet had filed its motion to dismiss.
[13] Indiana Trial Rule 41(E) requires only a sixty-day period of inaction before the
trial court can dismiss a complaint. Here, Shreeve did not take any action for
five months, and Shreeve only filed his responses after American Chevrolet had
filed its motion to dismiss. Even then, Shreeve’s responses were incomplete
and unsigned. While we prefer to decide cases on their merits, we cannot say
that the trial court clearly abused its discretion when it dismissed Shreeve’s
complaint for failure to prosecute. Thus, we affirm the trial court’s order.
[14] Affirmed.
Pyle, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CT-1474 | December 26, 2018 Page 7 of 7