Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                                        Apr 07 2014, 9:19 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT:                                    ATTORNEYS FOR APPELLEE:

TESS A. WHITE                                               W. BRENT THRELKELD
ERIC J. MASSEY                                              MELANIE A. SMITH
White and Champagne                                         Threlkeld & Associates
Indianapolis, Indiana                                       Indianapolis, Indiana

DONALD D. SCHWARTZ
Arnold & Kadjan
Chicago, Illinois



                               IN THE
                     COURT OF APPEALS OF INDIANA

ANDRE BOTLEY,                                        )
                                                     )
       Appellant-Plaintiff,                          )
                                                     )
               vs.                                   )     No. 49A05-1311-CT-567
                                                     )
DILMAR SANCHEZ,                                      )
                                                     )
       Appellee-Defendant.                           )


                      APPEAL FROM THE MARION SUPERIOR COURT
                            The Honorable James B. Osborn, Judge
                      The Honorable Christina R. Klineman, Commissioner
                              Cause No. 49D14-1203-CT-11294


                                           April 7, 2014

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                       Case Summary

       Andre Botley (“Botley”) appeals the involuntary dismissal, pursuant to Indiana Trial

Rule 41(E), of his negligence claim against Dilmar Sanchez (“Sanchez”). He presents the

sole issue of whether the trial court abused its discretion by granting the motion alleging

failure to prosecute. We reverse and remand with instructions.

                                Facts and Procedural History

       According to Botley’s complaint, on December 30, 2010, he was injured when the

vehicle in which he was a passenger was struck by a vehicle operated by Sanchez. On March

19, 2012, Botley filed suit against Sanchez, alleging that his injuries had been caused by

Sanchez’s negligent failure to maintain a proper lookout and avoid colliding with a stopped

vehicle.

           The Marion County Sheriff was unable to serve the complaint at Botley’s last known

address in Indiana, as the residence was vacant. Botley’s counsel retained an investigator,

who located a reported address for Sanchez in Michigan. However, the process server’s

affidavit indicated that personal service could not be effected upon Sanchez and that two

individuals at the target address admitted to knowing Sanchez but reportedly lacked a means

of contacting him. On September 25, 2012, Sanchez filed a motion to dismiss for failure of

service. The motion to dismiss was granted, but later vacated. Ultimately, service was

pursued through the Indiana Secretary of State, according to Trial Rule 4.4(B)(2).

       On December 14, 2012, Sanchez filed his “Motion to Dismiss, Answer to Plaintiff’s

Complaint for Damages, Affirmative Defenses and Request for Jury Trial.” (App. 40.)


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Again, Sanchez alleged a failure of service. More specifically, he argued that constructive

service through the Indiana Secretary of State was inadequate because Botley had failed to

exercise due diligence to locate Sanchez and serve him personally. The motion to dismiss

was denied.

        On April 16, 2013, Sanchez filed a motion to compel discovery from Botley, that is,

answers to interrogatories and request for production of documents. On May 29, 2013,

Botley’s local counsel filed a motion to withdraw, advising the trial court:

       All communication between the undersigned and plaintiff has been through
       Mr. Egan, who is a lawyer licensed to practice law in the State of Illinois and
       has a long-standing lawyer-client relationship with plaintiff. The undersigned
       has had no direct communication with plaintiff.

(App. 69.) A hearing was conducted on June 3, 2013. The trial court granted local counsel’s

motion to withdraw but ordered that Botley respond to discovery requests by June 10, 2013.

On that same date, with the assistance of out-of-state counsel not admitted to practice in

Indiana, Botley complied with the discovery requests.

       On September 17, 2013, Sanchez filed a Trial Rule 41(E) motion to dismiss for failure

to prosecute. Sanchez alleged that more than ninety days had elapsed since the June hearing

and that Botley was not attempting to obtain legal representation. On September 30, 2013,

Botley’s former local counsel again entered an appearance on behalf of Botley.

       On October 25, 2013, a hearing was conducted. Local counsel argued on behalf of

Botley that Sanchez had been difficult to locate and would not be prejudiced by an additional

forty-five day delay in the proceedings to permit Botley’s retention of new local counsel.

According to Botley’s attorney, he had not originally realized that he had taken the case on a

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contingency fee basis, was not inclined to continue representation on that basis, and believed

that Botley would have difficulty locating another attorney under those terms. Sanchez’s

attorney argued that Botley’s out-of-state counsel should have sought temporary admission to

the bar of Indiana and that no justifications for delay had been provided.

       At the conclusion of the hearing, the trial court granted the motion to dismiss, advising

counsel: “it’s none of your faults, but you know, if Mr. Botley doesn’t care, I, I’m not – the

Court doesn’t either.” (App. 89.)

       On October 31, 2013, Botley, by new local counsel, filed a motion to correct error.

The motion was set for hearing, but the hearing date was vacated. This appeal ensued.

                                  Discussion and Decision

       Botley’s complaint was dismissed with prejudice pursuant to Indiana Trial Rule 41(E),

which 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 costs 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.

       The purpose of this rule is to ensure that plaintiffs diligently pursue their claims and to

provide an enforcement mechanism requiring a recalcitrant plaintiff to push his case to

resolution. Olson v. Alick’s Drugs, Inc., 863 N.E.2d 314, 319 (Ind. Ct. App. 2007), trans.

denied. The burden of moving litigation is upon the plaintiff and not the court. Id. “Courts


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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.” Hill v. Duckworth, 679 N.E.2d 938, 939-40 (Ind. Ct. App. 1997).

       We will reverse a Trial Rule 41(E) dismissal for failure to prosecute only in the event

of a clear abuse of discretion. Belcaster v. Miller, 785 N.E.2d 1164, 1167 (Ind. Ct. App.

2003), trans. denied. An abuse of discretion occurs if the decision of the trial court is against

the logic and effect of the facts and circumstances before it. Id.

       On review from a Trial Rule 41(E) dismissal, we generally balance several factors in

determining whether there has been an abuse of discretion, including: (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. Lee v. Friedman, 637 N.E.2d 1318,

1320 (Ind. Ct. App. 1994). “The weight any particular factor has in a particular case appears

to depend upon the facts of that case.” Id. However, a lengthy period of inactivity may

sufficiently justify a dismissal under the circumstances of a particular case, especially if the

plaintiff has no excuse for the delay. Id.


                                                5
       Although Indiana does not require a trial court to impose lesser sanctions before

applying the ultimate sanction of dismissal, we view dismissals with disfavor. American

Family Ins. Co. ex rel. Shafer v. Beazer Homes Indiana, LLP, 929 N.E.2d 853, 857 (Ind. Ct.

App. 2010). Dismissals are considered to be extreme remedies that should be granted only

under limited circumstances. Id.

       The circumstances of this case do not support the imposition of the harshest possible

sanction of dismissing Botley’s complaint. No activity had occurred in the case for a period

in excess of ninety days. While this falls within the purview of Trial Rule 41(E), this is not

an egregious delay. Initial delays in the prosecution of Botley’s claim were attributable to the

difficulty of achieving service upon Sanchez, who apparently moved multiple times without

leaving a reliable forwarding address. Botley was forced to undertake extraordinary

measures to effect service.

       The final delay arose when Botley was unrepresented by counsel. According to his

former local counsel, who then promptly re-entered an appearance, Botley’s out-of-state

counsel had retained the services of local counsel on a contingency basis. Local counsel

chose to seek withdrawal upon learning that his fee was contingent. At the dismissal hearing,

he advised the trial court that he had “tried to get at least one of the Chicago lawyers

temporarily admitted in this case” but “can’t remember how the wheels came off.” (Tr. 8.)

He expressed doubt that Botley could retain local counsel on a contingency basis. These

difficulties have more to do with attorney conduct than with a plaintiff’s recalcitrance.




                                               6
       The prejudice to Sanchez caused by the delay is not apparent. Indeed, Sanchez was

afforded more time to respond to discovery. Although Botley had responded to Sanchez’s

discovery request, Sanchez had not provided discovery to Botley.

       There is some history of court intervention to move the case along, that is, the grant of

the isolated motion to compel discovery. However, there is no blatant disregard of a court

order. As previously observed, Botley complied with the deadline despite local counsel’s

withdrawal.

       Finally, we are mindful that “Indiana law strongly prefers disposition of cases on their

merits.” Coslett v. Weddle Bros. Const. Co., 798 N.E.2d 859, 861 (Ind. 2003). Botley has

obtained counsel admitted to practice in Indiana; thus, disposition on the merits is feasible.

       Although this case did not proceed flawlessly, it cannot be said that Botley is

personally responsible for lengthy delays that are prejudicial to Sanchez. Under the

circumstances of this case, we conclude that the trial court abused its discretion when it

imposed the harshest possible sanction after a ninety-day delay. Accordingly, we reverse the

trial court’s order dismissing Botley’s claim and remand with instructions for the trial court

to reinstate Botley’s cause of action.

       Reversed and remanded.

KIRSCH, J., and MAY, J., concur.




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