                                                                          Apr 22 2015, 10:02 am




      ATTORNEY FOR APPELLANTS                                    ATTORNEYS FOR APPELLEE
      Gregory W. Moore                                           John David Hoover
      Clark Hill PLC                                             Laurie E. Martin
      Birmingham, Michigan                                       Hoover Hull, LLP
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      William I. Babchuk, M.D., P.C.,                            April 22, 2015
      d/b/a Babchuk Imaging, P.C.,                               Court of Appeals Case No.
      and William I. Babchuk,                                    80A04-1409-PL-447
                                                                 Appeal from the Tipton Circuit Court
      Appellants-Plaintiffs,
                                                                 The Honorable Thomas R. Lett,
              v.                                                 Judge

      Indiana University Health                                  Cause No. 80C01-1207-PL-265
      Tipton Hospital, Inc., d/b/a
      Indiana University Health
      Tipton Hospital,
      Appellee-Defendant.




      Najam, Judge.


                                         Statement of the Case
[1]   William I. Babchuk, M.D., P.C. d/b/a Babchuk Imaging, P.C. and William I.

      Babchuck (collectively “Babchuck”) appeal the trial court’s order dismissing

      Court of Appeals of Indiana | Opinion 80A04-1409-PL-447| April 22, 2015                     Page 1 of 7
      Babchuk’s complaint against Indiana University Health Tipton Hospital, Inc.,

      d/b/a Indiana University Health Tipton Hospital (“the Hospital”) for failure to

      prosecute under Trial Rule 41(E). Babchuk presents a single issue for our

      review, namely, whether the trial court abused its discretion when it dismissed

      this action. We reverse and remand for further proceedings.


                                   Facts and Procedural History
[2]   On September 4, 2008, the Hospital and Babchuk executed a contract whereby

      Babchuk agreed to provide radiology services for the Hospital. The contract

      term was five years with the option to renew for one-year terms thereafter. In

      June 2012, after learning that Dr. Babchuk had allegedly directed two hospital

      staff members to delete or destroy hospital records, the Hospital terminated its

      contract with Babchuk. The Hospital also suspended Dr. Babchuk’s privileges

      to practice medicine at the Hospital.


[3]   On July 17, 2012, Babchuk filed his complaint against the Hospital and other

      defendants1 alleging breach of contract, tortious interference with a contract,

      and defamation. And on November 26, in response to a partial motion to

      dismiss,2 Babchuk filed an amended complaint alleging only breach of contract




      1
         Babchuk has not included a copy of his complaint or amended complaint in the appendix on appeal. There
      is no dispute, however, that Babchuk initially named other defendants who were subsequently dismissed
      from this action and are not parties to this appeal.
      2
        Neither party included a copy of the September 2012 partial motion to dismiss in their appendices on
      appeal. In its brief, the Hospital states that, in the amended complaint, Babchuk “drop[ped] his claims of
      tortious interference and defamation leaving solely his breach of contract claim” against the Hospital and
      “remov[ed] the other individual defendants from the caption.” Appellee’s Br. at 2.

      Court of Appeals of Indiana | Opinion 80A04-1409-PL-447| April 22, 2015                            Page 2 of 7
      against the Hospital. On December 18, the Hospital filed its answer to the

      amended complaint.


[4]   On August 29, 2013, Babchuk filed a complaint against the Hospital and other

      defendants in the United States District Court for the Southern District of

      Indiana (“federal court”) alleging “deprivation of property under color of state

      law without due process pursuant to 42 U.S.C. § 1983.” Appellants’ App. at

      33. And on May 28, 2014, Babchuk’s attorney “asked whether [the Hospital]

      would stipulate to [an] amendment [of the complaint in federal court] which

      added [a] breach of contract claim.” Id. at 21. The hospital “represented that

      [it] would consider it and asked if [Babchuk] would dismiss th[e] pending state

      court action if the amendment was approved. [Babchuk] responded in the

      affirmative.” Id.


[5]   On May 29, Babchuk filed, with the federal court, a motion to amend his §

      1983 complaint to include the breach of contract claim and, with the trial court,

      a “Motion to Stay or, in the Alternative, for Setting of Scheduling Conference.”

      Id. at 11. Also on May 29, the Hospital filed a motion to dismiss Babchuk’s

      state court action for failure to prosecute under Trial Rule 41(E). The trial court

      granted a motion to stay the state court action pending the federal court’s ruling

      on Babchuk’s motion to amend his complaint. And on July 10, after Babchuk

      notified the trial court that the federal court had denied his motion to amend his

      complaint, the trial court set the Hospital’s motion to dismiss for a hearing on

      August 12, 2014. After that hearing, the trial court dismissed Babchuk’s



      Court of Appeals of Indiana | Opinion 80A04-1409-PL-447| April 22, 2015   Page 3 of 7
      complaint against the hospital for failure to prosecute under Trial Rule 41(E).

      This appeal ensued.


                                      Discussion and Decision
[6]   Babchuk 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 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.


[7]   We set out the applicable standard of review in Baker Machinery, Inc. v. Superior

      Canopy Corp., 883 N.E.2d 818, 821 (Ind. Ct. App. 2008), trans. denied:


              We review dismissal of a cause of action under T.R. 41(E) for an
              abuse of discretion. Beard v. Dominguez, 847 N.E.2d 1054 (Ind.
              Ct. App. 2006), trans. denied. In so doing, we consider whether
              the trial court’s decision was against the logic and effect of the
              facts and circumstances; “‘we will affirm the trial court if any
              evidence supports the trial court’s decision.’” Id. at 1059
              (quoting Gray v. Westinghouse Elec. Corp., 624 N.E.2d 49, 55 (Ind.
              Ct. App. 1993), trans. denied).


[8]   And our supreme court has held that


      Court of Appeals of Indiana | Opinion 80A04-1409-PL-447| April 22, 2015       Page 4 of 7
              [a] motion to dismiss for want of prosecution should not be
              granted if the plaintiff resumes diligent prosecution of his claim,
              even though, at some prior period of time, he has been guilty of
              gross negligence. See Barron & Holtzoff, Federal Practice and
              Procedure, Sec. 918; and Rollins v. United States, (9th Cir., 1961),
              286 F.2d 761; United States v. Myers, (1964, D.C.Cal., N.D.), 38
              F.R.D. 194; Ayers v. D. F. Quillen & Sons, Inc., (Del. 1963), 188
              A.2d 510; Smirlock v. Ballard, (Del. 1971), 280 A.2d 739.


              The burden is clearly on the defendant to timely file a motion to dismiss
              pursuant to T.R. 41(E). That is to say, the defendant must file his
              motion after the sixty-day period has expired and before the plaintiff
              resumes prosecution.


      State v. McClaine, 261 Ind. 60, 300 N.E.2d 342, 344 (1973) (emphasis added).


[9]   Here, after an approximate eighteen-month period of inactivity, on May 29,

      2014, Babchuk filed his motion to stay or, in the alternative, for setting of

      scheduling conference. That same day, the Hospital filed its motion to dismiss

      for failure to prosecute. No Indiana case has addressed whether a Trial Rule

      41(E) motion filed the same day that a plaintiff resumes prosecution of its case

      is timely. But, as our supreme court held in McClaine, it is the defendant’s

      burden to timely file a Trial Rule 41(E) motion to dismiss, and the motion must

      be filed before the plaintiff resumes prosecution. Id.; see also Baker Mach., 883

      N.E.2d at 822 (citing McClaine). Accordingly, we hold that the Hospital’s

      motion to dismiss, which was not filed before Babchuk resumed prosecution of




      Court of Appeals of Indiana | Opinion 80A04-1409-PL-447| April 22, 2015             Page 5 of 7
       his case, was not timely.3 See McClaine, 300 N.E.2d at 344.


[10]   Still, the Hospital contends that Babchuk’s May 29 motion “did not constitute

       resumption of prosecution for purposes of [Trial Rule] 41(E).” Appellee’s Br. at

       14. In particular, the Hospital maintains that Babchuk’s “Motion to Stay was

       inherently delaying . . . and was nothing more than a tool to further stall

       prosecution of his breach of contract claim—belated [sic] attempt to avoid the

       consequences of his already lengthy delay.” Id. The Hospital points out that a

       plaintiff must resume diligent prosecution of his claim in order to prevent a Trial

       Rule 41(E) dismissal. (Citing McClaine, 300 N.E.2d at 344). The Hospital

       appears to suggest that anything less than a motion for a trial date would have

       been insufficient to resume prosecution in this case. We cannot agree.


[11]   Babchuk not only requested a stay pending his motion to amend his complaint

       with the federal court, but he requested, in the alternative, a scheduling

       conference “to establish discovery and other deadlines in this matter.”

       Appellants’ App. at 13. Our research reveals no Indiana precedent squarely

       addressing what constitutes diligent prosecution under Trial Rule 41(E). But a

       request for a scheduling conference indicates a party’s intent to move forward

       with litigation. And we hold that where, as here, a plaintiff requests a

       scheduling conference, even in the alternative to a stay, that is sufficient to

       constitute resumption of prosecution for purposes of Trial Rule 41(E).




       3
           Neither party’s motion was time-stamped.


       Court of Appeals of Indiana | Opinion 80A04-1409-PL-447| April 22, 2015      Page 6 of 7
[12]   In sum, while the trial court would have had discretion to dismiss Babchuk’s

       case for failure to prosecute had a timely motion been filed, the Hospital did not

       file its motion to dismiss before Babchuk had resumed prosecution of his case.

       Thus, we hold that the Hospital’s Trial Rule 41(E) motion was untimely and

       that trial court abused its discretion when it dismissed Babchuk’s complaint.


[13]   Reversed and remanded for further proceedings.


       Baker, J., and Friedlander, J., concur.




       Court of Appeals of Indiana | Opinion 80A04-1409-PL-447| April 22, 2015   Page 7 of 7
