                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS


Stanley Carroll and Crystal Carroll,                                                FILED
Plaintiffs Below, Petitioners                                                       April 16, 2013
                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
vs.) No. 12-0361 (Randolph County 08-C-282)                                      OF WEST VIRGINIA


Nuvell Credit Company, LLC,
Defendant Below, Respondent

                                 MEMORANDUM DECISION

        Petitioners Stanley Carroll and Crystal Carroll, 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 Nuvell Credit Company, LLC, 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 November 26, 2008, petitioners filed complaint a 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 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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