                                  STATE OF WEST VIRGINIA

                                SUPREME COURT OF APPEALS


Gary and Angela Arbogast,                                                           FILED
Plaintiffs Below, Petitioners                                                       April 16, 2013
                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
vs.) No. 12-0364 (Randolph County 09-C-59)                                       OF WEST VIRGINIA


Ally Financial, Inc., f/k/a/ GMAC, Inc.,
Defendant Below, Respondent

                                 MEMORANDUM DECISION

       Petitioners Gary and Angel Arbogast, by counsel Scott Curnutte, appeal the August 25,
2011 order of the Circuit Court of Randolph County dismissing their complaint for failure to
prosecute pursuant to Rule 41(b) of the West Virginia Rules of Civil Procedure. Respondent Ally
Financial, Inc., f/k/a GMAC, Inc., by Robert Martin,1 its attorney, filed a response.

       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 is appropriate under Rule 21 of the Rules of Appellate Procedure.

        On March 4, 2009, petitioners filed a complaint seeking relief under the West Virginia
Consumer Credit and Protection Act, West Virginia Code § 46A-1-101, et seq. Petitioners argue
that the circuit court abused its discretion because the complexity of the case and lack of a
scheduling order constitutes good cause to reinstate the case. Petitioners argue that the respondent
was not substantially prejudiced by the delay and this is not a flagrant case warranting dismissal
with prejudice. Respondent argues that petitioners have failed to meet their burden showing good
cause for the delay. Respondent argues the delay is due to a lack of diligence by opposing counsel
to prosecute the case since they filed the complaint and served a single set of discovery requests,
including failing to respond to the motion to dismiss for failure to prosecute.

       “We review a circuit court’s order dismissing a case for inactivity pursuant to Rule 41(b)
under an abuse of discretion standard.” Caruso v. Pearce, 223 W.Va. 544, 547, 678 S.E.2d 50, 53
(2009). “[T]he plaintiff bears the burden of going forward with evidence as to good cause for not
dismissing the action . . . .” Syl. Pt. 3, in part, Dimon v. Mansy, 198 W.Va. 40, 479 S.E.2d 339
(1996). Our review of the record indicates that petitioner’s counsel failed to respond to opposing
counsel’s correspondences dated February 3, 2010; March 29, 2010; and May 10, 2010; or
prosecute the case for approximately eighteen months, including responding to respondent’s

1 Charles R. Bailey filed a Notice of Substitution of Counsel replacing Robert Martin subsequent
to respondent’s response.

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motion to dismiss for failure to prosecute. Upon careful consideration, we conclude that the circuit
court did not abuse its discretion in dismissing petitioners’ complaint for a failure to prosecute
pursuant to Rule 41(b).

       For the foregoing reasons, we affirm the circuit court’s decision.

                                                                                         Affirmed.


ISSUED: April 16, 2013

CONCURRED IN BY:

Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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