                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS
                                                                                  FILED
Brandi Meade,                                                                     April 25, 2014
                                                                             RORY L. PERRY II, CLERK
Plaintiff Below, Petitioner                                                SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA

vs) No. 13-0983 (Kanawha County 10-C-1942)

West Virginia Division of Corrections and
C.O. Rees, Defendants Below, Respondents


                              MEMORANDUM DECISION
        Petitioner Brandi Meade, by counsel Michael A. Woelfel, appeals the Circuit Court of
Kanawha County’s “Order Denying Plaintiff’s Motion for Reinstatement per W.Va. R. Civ. P.
41(b)” entered on August 6, 2013. Respondent West Virginia Division of Corrections (“DOC”),
by counsel Lou Ann S. Cyrus and Kimberly M. Bandy, filed a response. Respondent C.O. David
Rees (“Rees”), by counsel John P. Fuller and Suleiman Oko-ogua, also filed a response.
Petitioner did not file a reply.

        This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        On October 29, 2010, petitioner filed a civil action against the DOC and three
correctional officers, Rees, C.O. Crawford, and C.O. Smithson.1 Petitioner alleged that she was
sexually harassed and abused while she was an inmate at Lakin Correctional Center, a facility
operated by the DOC.2 At the time of the alleged misconduct, Rees, Crawford, and Smithson
were employed by the DOC.

       On February 22, 2011, Rees filed his answer, a motion to dismiss, and served petitioner
with discovery requests. Petitioner responded to Rees’s discovery requests on March 25, 2011.

       1
        Petitioner never served C.O. Crawford and C.O. Smithson. They were dismissed by
order of the circuit court, entered June 6, 2013, pursuant to Rule 4(k) of the West Virginia Rules
of Civil Procedure, which requires service within 120 days of the filing of the complaint. The
dismissal of C.O. Crawford and C.O. Smithson is not presently before this Court.
       2
       Petitioner’s complaint does not contain specific allegations detailing the alleged
harassment and abuse.
                                                1

On April 1, 2011, the DOC served petitioner with its discovery requests, and petitioner
responded on May 5, 2011. Nothing further occurred in the case relating to petitioner’s claims
against the DOC and Rees until June 25, 2012, when Rees filed his motion to dismiss for failure
to prosecute pursuant to Rule 41(b) of the West Virginia Rules of Civil Procedure.3 Thereafter,
on June 27, 2012, petitioner served the DOC and Rees with her discovery requests. The DOC
then filed its motion to dismiss on July 18, 2012, arguing, inter alia, inactivity pursuant to Rule
41(b).4 Petitioner filed a response to Rees’s motion to dismiss.

       The circuit court conducted a hearing on the DOC’s and Rees’s motions to dismiss on
February 26, 2013, at which all parties appeared by counsel. At the hearing, petitioner’s counsel
explained the inactivity as follows:

                 MR. WOELFEL:          Thank you, Your Honor.

               With all due respect to Mr. Fuller’s position, Your Honor, we have moved
       for a scheduling order in this case, and I know you haven’t really called that
       motion yet, but this was – this was a matter that did sort of slip through the cracks
       in our office.




       3
           Rule 41(b) provides as follows:

       (b) Involuntary dismissal; effect thereof. - For failure of the plaintiff to prosecute
       or to comply with these rules or any order of court, a defendant may move for
       dismissal of an action or of any claim against the defendant. Unless the court in its
       order for dismissal otherwise specifies, a dismissal under this subdivision and any
       dismissal not provided for in this rule, other than a dismissal for lack of
       jurisdiction or for improper venue, operates as an adjudication upon the merits.

       Any court in which is pending an action wherein for more than one year there has
       been no order or proceeding, or wherein the plaintiff is delinquent in the payment
       of accrued court costs, may, in its discretion, order such action to be struck from
       its docket; and it shall thereby be discontinued. The court may direct that such
       order be published in such newspaper as the court may name. The court may, on
       motion, reinstate on its trial docket any action dismissed under this rule, and set
       aside any nonsuit that may [be] entered by reason of the nonappearance of the
       plaintiff, within three terms after entry of the order of dismissal or nonsuit; but an
       order of reinstatement shall not be entered until the accrued costs are paid.

       Before a court may dismiss an action under Rule 41(b), notice and an opportunity
       to be heard must be given to all parties of record.
       4
       The DOC also moved to dismiss for failure to serve indispensable parties, namely,
Crawford and Smithson.
                                                 2

               There’s no prejudice that’s been demonstrated by either of the defendants.
       We did file our discovery back in June of last year, and we would like the Court
       to enter a scheduling order, set the case for trial. We’re ready to go.
               And there was a lack of communication between Ms. Meade and I for a
       period of time, and, in part, that accounts for the delay.
               Otherwise, you know, I think the Court has its discretion to do as you see
       fit. We urge you to go ahead and enter a scheduling order, move the case forward.
               And if you do dismiss the case and grant their motions, we ask that it be
       without prejudice.

        After hearing the arguments of counsel, the circuit court granted the DOC’s and Rees’s
respective motions to dismiss pursuant to Rule 41(b). However, a question arose during the
hearing about whether the dismissal was with prejudice. In response to petitioner’s counsel’s
question in this respect, the circuit court stated:

              THE COURT:             I don’t believe it’s on the merits of the case; it’s just
       simply that no action has been filed within a one-year period.

       ***

               MR. FULLER:            Your Honor, just to be clear, so I get the right
       language in the order, Rule 41 provides that unless the Court in its order for
       dismissal otherwise specifically – specifies a dismissal under the subdivision and
       any dismissal not provided for in this rule, other than a dismissal for lack of
       jurisdiction or for improper venue, operates as an adjudication on the merits.
               You’re specifically finding that it’s not –

               THE COURT:             (Interposing.) It’s not – I have not heard the merits
       of this case.
               Okay?

                MR. FULLER:           I just want to make sure my order is clear, Your
       Honor.

                THE COURT:            Okay.

        Rees’s counsel drafted a proposed order regarding the circuit court’s February 26, 2013,
ruling and circulated it among the parties. Petitioner’s counsel did not sign it. On or about April
22, 2013, petitioner filed a motion to reinstate her civil action contending that good cause existed
for the reinstatement of the case due to (1) lack of diligence by a staff member of Woelfel &
Woelfel, LLP, who failed to direct discovery requests in a timely manner; (2) counsel’s inability
to serve Crawford and Smithson within 120 days of filing the complaint; and (3) the court’s
failure to enter a scheduling order. The DOC and Rees filed responses to petitioner’s motion to
reinstate her case.




                                                 3

        On May 22, 2013, Rees filed a “Motion for Entry of an Order regarding the Court’s
Ruling of February 26, 2013, on various Defendants’ Motions Pursuant to Rule 41(b)” and
attached a proposed final order. However, the circuit court did not enter Rees’s proposed order.
Instead, on August 6, 2013, without hearing, the circuit court entered its “Order Denying
Plaintiff’s Motion for Reinstatement per W.Va. R. Civ. P. 41(b).”5 The order does not state
whether the dismissal of petitioner’s case was with prejudice. Petitioner now appeals to this
Court.

       We review a circuit court’s order dismissing a case for inactivity pursuant to Rule 41(b)
under an abuse of discretion standard. See Caruso v. Pearce, 223 W.Va. 544, 678 S.E.2d 50
(2009). A lower court’s discretionary ruling may only be overturned where this Court is left with
a “firm conviction that an error has been committed.” Covington v. Smith, 213 W.Va. 309, 322,
582 S.E.2d 756, 769 (2003).

        The first of petitioner’s four assignments of error is that the circuit court abused its
discretion in dismissing her case because she established good cause for the inactivity.

       [T]he determination whether the plaintiff has failed to move the case in a
       reasonable manner is a discretionary call for the circuit court. The power to resort
       to the dismissal of an action is in the interest of orderly administration of justice
       because the general control of the judicial business is essential to the trial court if
       it is to function. To this extent, Rule 41(b) is still good law in that granting
       authority to trial judges to control their dockets through dismissals is consistent,
       not debilitative, of sound judicial administration. It is equally clear that it is the
       plaintiff's obligation to move his or her case to trial, and where the plaintiff fails
       to do so in a reasonable manner, the case may be dismissed as a sanction for the
       unjustified delay. To be clear, we squarely hold that a plaintiff has a continuing
       duty to monitor a case from the filing until the final judgment, and where he or
       she fails to do so, the plaintiff acts at his or her own peril.

Dimon v. Mansy, 198 W.Va. 40, 45, 479 S.E2d 339, 344 (1996).

        We note that in her reply in support of her motion to reinstate her case before the circuit
court, petitioner offers an explanation for the inactivity that is different than what her counsel
argued at the February 26, 2013, hearing. She reiterates this explanation in her brief to this Court.
She states that she attempted suicide twice between Christmas of 2011 and January of 2012. She
states that she then overdosed on heroine in February of 2012, requiring hospitalization until
May of 2012. She states that she underwent treatment through August of 2012, and has remained
clean and sober since. Petitioner also argues that the prosecution and defense of the case were
ongoing at the time of respondents’ motions to dismiss as evidenced by the fact that she had
previously signed authorizations at DOC’s request to permit inquiry into her health history.



       5
        The circuit court never entered an order memorializing its February 26, 2013, ruling
from the bench.


                                                 4

        Upon a consideration of the record on appeal, we find no merit to petitioner’s arguments
for her first assignment of error. The record demonstrates that between the time petitioner
answered discovery and the filing of the first motion to dismiss, she took no action whatsoever to
prosecute her case. The DOC requested records from third parties during this time period based
solely on the authorization signed by petitioner on April 24, 2011, prior to her answering
discovery. Clearly, the period of inactivity exceeded one year. As for the personal circumstances
that petitioner belatedly claims constitute good cause for the inactivity, she was represented by
counsel throughout the pendency of her lawsuit, and her counsel had the ability to seek a stay in
the case to protect petitioner’s interests. He did not do so. In fact, petitioner does not identify any
activity that would have been pursued in the case if it were not for her personal circumstances in
2011 and 2012. All that is left by way of explanation is her counsel’s assertion at the February
26, 2013, hearing that the case “slip[ped] through the cracks” in his office. Therefore, we cannot
find that the circuit court abused its discretion in failing to find good cause for the inactivity in
the case.6

       In her second assignment of error, petitioner argues that the circuit court misconstrued the
term “proceeding” in Rule 41(b). Petitioner relies on Millar v. Whittington, et al., 87 W.Va. 664,
667, 105 S.E. 907, 908 (1921), which held that “[t]he term proceeding, as applied to suits, means
any step or measure taken in the prosecution or defense of an action.” Petitioner argues that
because the DOC obtained authorizations from petitioner to investigate petitioner’s alleged
damages claim, the period of dormancy was less than one year. We disagree. The DOC obtained
medical records based on the single release signed by petitioner on April 24, 2011, outside of the
one-year period of inactivity. Additional authorizations were sought in January 2013, after the
41(b) motions were filed.

        Nevertheless, we do not believe this matter hinges on an interpretation of “proceeding.”
Rule 41(b) allows for involuntary dismissal in more than one manner. The manner at issue in this
case is “[f]or failure of the plaintiff to prosecute or to comply with these rules or any order of
court, a defendant may move for dismissal of an action or of any claim against the defendant.”
Interpretation of the term “proceeding” is not necessary to this determination. Rather, the
dismissal was based on petitioner’s failure to prosecute her own case. Therefore, we reject
petitioner’s second assignment of error.

       Third, petitioner argues that the circuit court abused its discretion by failing to enter a

       6
        Because we find that petitioner failed to demonstrate good cause for the inactivity, the
burden to show prejudice never shifted to respondents. We have held that

       the plaintiff bears the burden of going forward with evidence as to good cause for
       not dismissing the action; if the plaintiff does come forward with good cause, the
       burden then shifts to the defendant to show substantial prejudice to it in allowing
       the case to proceed; if the defendant does show substantial prejudice, then the
       burden of production shifts to the plaintiff to establish that the proffered good
       cause outweighs the prejudice to the defendant.

Syl. Pt. 3, in part, Mansy, 198 W.Va. at 43, 479 S.E.2d at 342.
                                                  5

scheduling order, and this failure contributed to the delay in the case. Petitioner notes that this
Court has reversed a Rule 41(b) dismissal, in part, because a circuit court’s failure to enter a
scheduling order contributed to counsel’s mistaken belief that discovery responses were still
pending. See Caruso, 223 W.Va. 544, 678 S.E.2d 50 (2009). However, in the present case, the
lack of a scheduling order did not prevent petitioner from moving her case forward. She could
have engaged in discovery without an order, but failed to do so. More importantly, the record
simply does not support an argument that petitioner’s counsel believed discovery was still
pending as a result of the lack of a scheduling order.

       Lastly, petitioner argues that the circuit court abused its discretion by failing to reinstate
her case. West Virginia Code § 56-8-12 states as follows:

       Any court may, on motion, reinstate on the trial docket of the court any case
       dismissed, and set aside any nonsuit that may be entered by reason of the
       nonappearance of the plaintiff, within three terms after the order of dismissal shall
       have been made, or order of nonsuit entered; but any such order of reinstatement
       shall not be entered until the accrued costs in such case shall have been paid.

Moreover, we have held that

               “‘Under W. Va. R. Civ. P. 41(b), in order to reinstate a cause of action
       which has been dismissed for failure to prosecute, the plaintiff must move for
       reinstatement within three terms of entry of the dismissal order and make a
       showing of good cause which adequately excuses his neglect in prosecution of the
       case.’ Syl. pt. 1, Brent v. Board of Trustees of Davis & Elkins College, 173 W.Va.
       36, 311 S.E.2d 153 (1983).” Syl. pt. 1, Dimon v. Mansy, 198 W.Va. 40, 479
       S.E.2d 339 (1996).

Syl. Pt. 3, Tolliver v. Maxey, 218 W.Va. 419, 624 S.E.2d 856 (2005).

        Petitioner argues that reinstatement would (1) serve to avoid the harshness of potential
dismissal of petitioner’s claims with prejudice, and (2) promote the interests of justice by
allowing a trial on the merits. Additionally, petitioner argues that because no hearing was held on
the reinstatement motion, she was denied the opportunity to demonstrate good cause for
reinstatement of her case.

        We disagree. Petitioner’s motion for reinstatement provided her an opportunity to show
good cause for reinstatement, but her motion simply reiterated, in a slightly different way, the
same explanation offered at the February 26, 2013, hearing. In her motion seeking reinstatement,
her counsel stated that “[g]ood cause is existent by virtue of the undersigned counsel’s neglectful
error in not propounding Plaintiff’s discovery requests to Defendants in a timely manner due to a
lack of diligence by counsel’s staff member who is no longer employed by Woelfel & Woelfel,
LLP.” The circuit court refused to find good cause as a result of the case “slip[ping] through the
cracks” in petitioner’s counsel’s office, and we find no abuse of discretion in that decision.
Likewise, we do not find an abuse of discretion in the circuit court failing to hold a hearing on
petitioner’s motion for reinstatement that did not assert anything new.

                                                 6

 For the foregoing reasons, we affirm.




                                              Affirmed.

ISSUED: April 25, 2014

CONCURRED IN BY:

Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II

DISSENTING:

Chief Justice Robin Jean Davis




                                         7

