                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS


Owen Black,
Plaintiff Below, Petitioner                                                         FILED
                                                                                    April 16, 2013
                                                                               RORY L. PERRY II, CLERK
vs.) No. 12-0360 (Randolph County 09-C-61)                                   SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

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

                                 MEMORANDUM DECISION

        Petitioner Owen Black, by counsel Scott Curnutte, appeals the August 25, 2011, order of
the Circuit Court of Randolph County dismissing his 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, petitioner filed a complaint seeking relief under the West Virginia
Consumer Credit and Protection Act, West Virginia Code § 46A-1-101, et seq. Petitioner argues
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. Petitioner argues that the respondent
was not substantially prejudiced by the delay and this is not a flagrant case warranting dismissal
with prejudice. Respondent argues that petitioner has failed to meet his 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


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

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prosecute the case for approximately eighteen months, including responding to respondent’s
motion to dismiss for failure to prosecute. Upon careful consideration, we conclude that the circuit
court did not abuse its discretion in dismissing petitioner’s 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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