It’s Never Too Early to do the Right Thing: Fifth District Affirms Trial Court’s Discretion in Dismissing Case with Prejudice for Lack of Prosecution

Posted on September 28th, 2017 by Kevin W. KitaKevin Kita

Sutter O’Connell notched yet another appellate victory this week in the Fifth District case captioned S.C. a minor, et al. v. Licking County Health Department, et al. The Court of Appeals unanimously affirmed the Licking County trial court’s decision to dismiss a negligence claim with prejudice for lack of prosecution just seven months after the case was filed. The decision reaffirmed a trial court’s right to exercise its sound discretion, and provides an important reminder that no one is entitled to a grace period in which it is ok to ignore one’s obligations to the court or their opposition.

This case arose from allegations that a six month old girl was injured when her grandmother, who was holding her, slipped in water and fell while on the property owned by Defendants. On June 27, 2016, a lawsuit was filed on the child’s behalf by her mother and included a claim on behalf of the father. Thereafter, the plaintiffs essentially disappeared. They failed to respond to written discovery, return calls or correspondence, failed to file a pre-trial statement in compliance with the trial court’s order, and failed to appear alongside their counsel at the Court’s pre-trial conference as required.

At the pre-trial conference, the plaintiffs’ counsel indicated these shortcomings were due to his inability to locate his clients and stated he had hired a private investigator to assist him in doing so. Pursuant to this conference, the Court issued an Order noting “cannot locate plaintiffs; either dismiss or proceed with discovery.” The Court further clarified its instruction in the Order stating “dismiss if plaintiffs not located by December 31, 2016.”

Two weeks after the expiration of the Court’s deadline, when the plaintiffs failed to respond to discovery or otherwise progress the case, Sutter O’Connell filed a motion to dismiss for lack of prosecution pursuant to Civ. R. 41(B). This rule states dismissal will act as “adjudication upon the merits,” unless the court specifies otherwise. The plaintiffs did not oppose the written motion and neither the plaintiffs nor their counsel appeared at the Court’s hearing a month later on February 13, 2017. Accordingly, the trial court granted the defense’s motion and dismissed the case with prejudice.

On appeal, the plaintiffs made essentially two arguments in an effort to overturn the trial court’s decision: (1) plaintiffs did not receive adequate notice that dismissal “with prejudice” was a possibility; and (2) dismissal with prejudice was too harsh a sanction under the circumstances. The latter argument relied heavily on the fact that S.C. was a minor and, the fact that the case had only been on the Court’s docket for about seven (7) months.

The Fifth District unanimously rejected the plaintiffs’ arguments, finding the defendants gave sufficient notice by serving plaintiffs’ counsel with a motion to dismiss invoking Civ. R. 41(B); and that the trial court provided a reasonable opportunity for the plaintiffs to argue against such a sanction by serving plaintiffs’ counsel with notice of an oral hearing. Moreover, the Court of Appeals noted plaintiffs’ failed to demonstrate any evidence of excusable neglect or extenuating circumstances that reasonably justified the plaintiffs’ failure to appear or participate in their case. The mere fact that the plaintiff was a minor or that the case was relatively young was inconsequential to the decision.

The key takeaway from this case is that it is never too early to do the right thing for your client. As the Fifth District noted in its decision, plaintiffs’ counsel could have voluntarily dismissed this case without prejudice at any time between the November 2017 pre-trial and the February 2018 hearing, but chose not to do so. Even if he believed the defendants’ motion would result in dismissal without prejudice or a lesser sanction, there is no excuse for failing to articulate that position in a response brief or in an appearance at the oral hearing. Quite often, judges can be understanding of procedural missteps, forgiving of delays, and will allow an individual plaintiff every opportunity to pursue a claim. The Fifth District’s decision reminds us that taking this leniency for granted can be fatal to our case and, more importantly, our client(s).

Click here for the full decision.

Sutter O’Connell Attorney Kevin Kita authored the winning motion and appellate brief, and participated in oral argument before the Fifth District.