Opinion
24A-CT-1369
11-26-2024
Ariel Dalton, et al., Appellants-Plaintiffs v. Edgewood Police Department, et al., Appellees-Defendants
APPELLANT PRO SE, FOR ALL APPELLANTS Ariel Dalton Brooksville, Florida ATTORNEY FOR APPELLEES Liberty L. Roberts Church Church Hittle & Antrim Noblesville, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Madison Circuit Court The Honorable David A. Happe, Judge Trial Court Cause No. 48C04-2211-CT-168
APPELLANT PRO SE, FOR ALL APPELLANTS
Ariel Dalton
Brooksville, Florida
ATTORNEY FOR APPELLEES
Liberty L. Roberts
Church Church Hittle & Antrim
Noblesville, Indiana
Bailey and Foley Judges concur.
MEMORANDUM DECISION
Bradford, Judge.
Case Summary
[¶1] In November of 2022, Rebecca Dalton and Brice Sesler, by next friend Dalton (collectively, "Dalton"), sued the Edgewood Police Department, the City of Edgewood, Edgewood Police Officer Shane Briggs, and Edgewood Police Officer Brian Petty (collectively, "Edgewood") for damages. Over the next seventeen months, Dalton, with the exception of appearing at one pretrial hearing, did nothing to advance her claim. In April of 2024, Edgewood moved to dismiss Dalton's claim for failure to prosecute, which motion the trial court granted. Dalton contends that the trial court abused its discretion in granting Edgewood's motion to dismiss. We affirm.
Facts and Procedural History
[¶2] On November 15, 2022, Dalton sued Edgewood for damages. On May 19, 2023, a hearing at which Dalton appeared with counsel, the trial court set a jury trial to begin on February 25, 2025. The same day, the trial court issued a pretrial order with discovery and pretrial-filing deadlines, among them a requirement that initial witness and exhibits lists be exchanged no later than ninety days from the date of the order. On November 10, 2023, Dalton's counsel moved to withdraw, citing a communications breakdown.
[¶3] On April 8, 2024, Edgewood moved to dismiss for failure to prosecute, in which motion it alleged that Dalton had not served discovery requests in the seventeen months since the suit had been filed; no motions, notices, or other items had been filed since the amended complaint had been filed on November 21, 2022; and Dalton had been inactive since a May 7, 2023, telephonic pretrial conference, at which Dalton's counsel had appeared. Edgewood further alleged that Dalton had failed to take any action in the four months since her attorney had withdrawn and had failed to update her address with the trial court or Edgewood's counsel.
[¶4] On April 16, 2024, the trial court set a hearing on the motion to dismiss for May 10, 2024. Dalton did not appear at the hearing, and the trial court dismissed the case with prejudice. On June 10, 2024, Dalton filed a notice of appeal of the trial court's dismissal.
On May 28, 2024, Dalton moved for an expedited hearing and a reopening of the case, which motion the trial court denied the next day. On June 6, 2024, Dalton requested a hearing on her motion to set aside the dismissal. On June 10, 2024, the trial court set a hearing on Dalton's filing, and Dalton filed her notice of appeal of the trial court's dismissal. On June 26, 2024, the trial court ruled that it did not have jurisdiction to rule on anything Dalton had filed after she had filed her notice of appeal.
Discussion and Decision
[¶5] Indiana Trial Rule 41(E) provides, in part, that
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 costs if the plaintiff shall not show sufficient cause at or before such hearing.
The purpose of 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 v. Miller, 785 N.E.2d 1164, 1167 (Ind.Ct.App. 2003) (citation and quotation marks omitted), trans. denied. "The burden of moving the litigation is upon the plaintiff, not the court." Id. (citation and quotation marks omitted). Trial courts cannot be expected to carry cases on their dockets indefinitely, nor should defendants have to have lawsuits hanging over their heads indefinitely. Id.
[¶6] "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 decision of the trial court is against the logic and effect of the facts and circumstances before it." Id. (citation and quotation marks omitted). We will affirm the dismissal "if there is any evidence that supports the decision of the trial court." Id. (citation and quotation marks omitted). We
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 plaintiff's part.Id. The weight assigned to any of those factors depends on the facts of the case. See 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.
[¶7] Under the circumstances of this case, we have little hesitation in concluding that no abuse of discretion has occurred. It is undisputed that Dalton took no action to advance her case for more than seventeen months, or more than eight times the minimum amount of time that must pass before a party may move to dismiss pursuant to Rule 41(E). As for whether Dalton has any excuse for her inaction, on appeal Dalton points only to the fact that she was not served with Edgewood's motion to dismiss. Edgewood's motion to dismiss, however, was filed in April of 2024, after Dalton's seventeen-month period of inactivity, and so cannot excuse any of the inactivity, even if the service was ineffective. Moreover, at least four months of delay are attributable solely to Dalton, who not only failed to take any action after the withdrawal of her counsel, but also failed to provide the trial court or Edgewood with a current address. As for Dalton's diligence, she acted only when she learned of Edgewood's motion to dismiss her claim. Given the lengthy delay, lack of an excuse for any part of it, and other circumstances, we conclude that Dalton has failed to establish an abuse of discretion.
[¶8] In her reply brief, Dalton cites to our decision in Benton v. Moore, 622 N.E.2d 1002 (Ind.Ct.App. 1993), for the proposition that it is not within a trial court's discretion to grant a motion to dismiss for failure to prosecute once a trial date has been set. Id. at 1006. Benton, however, does not help Dalton. Benton was premised on the idea that, once the trial date had been set, the plaintiffs could not have been punished with dismissal for failing to take action because there was none to take. Id. While that may have been true in Benton, it was not true here. At the very least, Dalton was subject to a court order to provide initial witness and exhibit lists within ninety days of the order setting the trial date, which she did not do, a failure for which she does not offer an excuse.
[¶9] We affirm the judgment of the trial court.
Bailey, J., and Foley, J., concur.