MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Apr 30 2019, 11:09 am
court except for the purpose of establishing
                                                                              CLERK
the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                             Court of Appeals
estoppel, or the law of the case.                                              and Tax Court




ATTORNEY FOR THE APPELLANT
Timothy E. Stucky
Stucky, Lauer & Young, LLP
Fort Wayne, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Credit Bureau Collection                                  April 30, 2019
Services, Inc.,                                           Court of Appeals Case No.
Appellant-Plaintiff,                                      18A-SC-2663
                                                          Appeal from the Shelby Superior
        v.                                                Court
                                                          The Honorable David N. Riggins,
Rebecca Alsman, Sheila K.                                 Judge
Riggs, Ashley Phillips, Charles                           Trial Court Cause Nos.
R. Rogers, Betsy M. Wilson,                               73D02-1709-SC-924
David Wilson, and Julia                                   73D02-1709-SC-936
Robbins,                                                  73D02-1709-SC-942
                                                          73D02-1709-SC-943
Appellees-Defendants.                                     73D02-1709-SC-946
                                                          73D02-1709-SC-947
                                                          73D02-1709-SC-953



Bradford, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-SC-2663 | April 30, 2019                    Page 1 of 6
                                           Case Summary
[1]   On August 8, 2018, Credit Bureau Collection Services, Inc. (“CBCS”) was

      scheduled to appear at 1:30 p.m. to show cause as to why its cases against

      Rebecca Alsman, Sheila K. Riggs, Ashley Phillips, Charles R. Rogers, Betsy M.

      Wilson, David Wilson, and Julia Robins (collectively “Appellees”) should not

      be dismissed by the court’s Indiana Trial Rule 41(E) motion. CBCS’s counsel

      arrived thirty minutes late after mistakenly going to the wrong courtroom.

      When counsel arrived around 2:00 p.m., he was informed that CBCS’s seven

      small-claims cases had been dismissed with prejudice. CBCS’s motions for relief

      and reinstatement of those cases were denied. CBCS appeals, claiming an abuse

      of discretion. We affirm.



                            Facts and Procedural History
[2]   CBCS is a collection agency conducting business within the state of Indiana. In

      September of 2017, CBCS filed seven small claims actions in Shelby Superior

      Court 2. Insufficient service was returned on five of the seven cases. Of the two

      cases where service was achieved, the first was addressed on November 7, 2017,

      at an initial hearing where Alsman and CBCS entered into an agreed judgment;

      however, that agreement was denied on November 8, 2017, for exceeding the

      small-claims jurisdictional limit. The second of the two serviced cases was

      originally scheduled for November 20, 2017, but was rescheduled for January

      22, 2018, on Rigg’s motion. Neither party appeared at the bench trial on

      January 22, and the case was closed pending further action.

      Court of Appeals of Indiana | Memorandum Decision 18A-SC-2663 | April 30, 2019   Page 2 of 6
[3]   On June 7, 2018, the court issued Rule 41(E) motions for all seven of CBCS’s

      cases and scheduled them to be heard on August 8, 2018, at 1:30 p.m. in Shelby

      Superior Court 2. On July 16 and 17, 2018, CBCS filed its responses to the

      court’s Rule 41(E) motions and filed its alias notice of claims, all of which were

      scheduled for hearings on September 24, 2018.


[4]   On August 8, 2018, counsel arrived at Court 1 at 1:30 p.m. rather than Court 2,

      where CBCS’s Rule 41(E) hearings were set to be heard. Riggs was present in

      Court 2 for the scheduled hearing. Counsel arrived in Court 2 shortly before

      2:00 p.m., almost 30 minutes late and was informed that CBCS’s seven cases

      had been dismissed with prejudice. On September 7, 2018, CBCS filed motions

      for relief from judgment and reinstatement in all seven of its dismissed cases

      pursuant to Rules 41(F) and 60(B)(2). On September 12, 2018, the court denied

      CBCS’s requests for relief from judgment and reinstatement of proceedings.



                                 Discussion and Decision
                                               I. Dismissal

[5]   Trial Rule 41(E) directs trial courts to order a hearing for the purpose of

      dismissing a case if no action has been taken in sixty days and to dismiss a case

      if a party does not show sufficient cause at or before a hearing. Ind. Trial R.

      41(E). We review the trial court’s dismissal for an abuse of discretion. Deutsche

      Bank Nat’l Trust Co. v. Harris, 985 N.E.2d 804, 813 (Ind. Ct. App. 2013). We

      consider several factors when deciding whether or not a trial court has abused

      Court of Appeals of Indiana | Memorandum Decision 18A-SC-2663 | April 30, 2019   Page 3 of 6
      its discretion by dismissing a case for failure to prosecute: (1) length of the

      delay, (2) the reason for the delay, (3) the degree of the plaintiff’s personal

      responsibility, (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 his

      attorney, (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 the threat

      of dismissal as opposed to diligence on the plaintiff’s part. Id. at 813–14.


[6]   CBCS has failed to establish that the trial court abused its discretion by

      dismissing its claims. It is uncontested that for five of CBCS’s seven cases there

      was inactivity of almost seven months between filing and the court’s Rule 41(E)

      motion. Additionally, regarding the two serviced-cases in Shelby County,

      CBCS neglected to diligently pursue those claims after November 7, 2017, even

      failing to appear at a bench trial scheduled for January 22, 2018. Counsel’s

      failure to appear in a timely manner on August 8, 2018, lengthened what was

      already a substantial delay. “‘Courts cannot be asked to carry cases on their

      dockets indefinitely and the rights of the adverse party should also be

      considered. [The adverse party] should not be left with a lawsuit hanging over

      his head indefinitely.’” Belcaster v. Miller, 785 N.E.2d 1164, 1167 (Ind. Ct. App.

      2003) (quoting Hill v. Duckworth, 679 N.E.2d 938, 939 (Ind. Ct. App. 1997),

      trans. denied. Further, it seems clear from the record that CBCS was only stirred


      Court of Appeals of Indiana | Memorandum Decision 18A-SC-2663 | April 30, 2019   Page 4 of 6
      into effectuating service on the majority of its defendants by the threat of

      dismissal, yet still failed to appear in a timely manner to a Rule 41(E) dismissal

      hearing. Though there is a strong preference for deciding cases on the merits,

      the trial court found numerous factors that weigh in favor of dismissal. CBCS

      has failed to establish that an abuse of discretion occurred.


                       II. Denial of Relief and Reinstatement

[7]   Indiana Trial Rule 60(B)(2) states that a court may, on motion, relieve a

      moving party from judgment on any grounds that are just. Ind. Trial R.

      60(B)(2). The burden is on the movant to establish grounds for relief under Rule

      60(B). Deutsche Bank Nat’l Trust Co, 985 N.E.2d at 813. The trial court has

      discretion in granting or denying a Rule 60(B) motion, a decision which we

      review for an abuse of discretion. Assocs. Fin. Serv. Co. v. Knapp, 422 N.E.2d

      1261, 1263 (Ind. Ct. App. 1981). An abuse of discretion occurs where the trial

      court’s decision is “against the logic and effect of the facts and circumstances

      before the court, or the reasonable, probable and actual deductions to be drawn

      therefrom.” Id. In reviewing whether an abuse of discretion has occurred, we

      look to factors such as undue delay, bad faith or dilatory motive on the part of

      the movant, repeated failure to cure deficiency by amendment previously

      allowed, undue prejudice to the opposing party, and futility of the amendment.

      Turner v. Franklin Cty. Four Wheelers Inc., 889 N.E.2d 903, 906 (Ind. Ct. App.

      2008).




      Court of Appeals of Indiana | Memorandum Decision 18A-SC-2663 | April 30, 2019   Page 5 of 6
[8]   CBCS and its counsel are responsible for undue delay in the prosecution of the

      proceedings. The last time CBCS pursued these cases before the trial court’s

      Rule 41(E) motion was on November 7, 2018, when CBCS entered into an

      agreed judgment (which was denied the next day) with Alsman. Next, CBCS

      failed to appear at a January 22, 2018 bench trial. Almost 5 months later, the

      trial court entered a Rule 41(E) motion to dismiss with a hearing scheduled for

      August 8, 2018. This prompted CBCS to effectuate service on the Appellees and

      file both a response to the court’s Rule 41(E) motion and an alias notice of

      claims. However, CBCS’s counsel failed to appear in a timely manner for the

      Rule 41(E) hearing, and as the trial court observed at the time, “[CBCS] has

      swung and missed on this twice in my court . . . .” In conclusion, the trial court

      did not abuse its discretion by finding an undue delay and denying CBCS’s

      motions for relief from judgment and reinstatement. CBCS and its counsel were

      responsible for the undue delay of its cases and wasting judicial resources.


[9]   The judgement of the trial court is affirmed.


      Crone, J., and Tavitas, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-SC-2663 | April 30, 2019   Page 6 of 6
