                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Greg Winland and Tri-State Concrete Pumping, Inc.,                               FILED
Plaintiffs Below, Petitioners                                                  November 8, 2013
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
vs) No. 13-0231 (Kanawha County 07-C-1384)                                    OF WEST VIRGINIA



West Virginia Regional Jail and Correctional Facility Authority;

Wyetta Fredericks, in her capacity as Executive Director

for the West Virginia Regional Jail and Correctional

Facility Authority; John Does 1 through 5, West Virginia residents;

John Does 1 through 5, Ohio residents; Business Organization XYZ,

and Corporations 1 through 5, Ohio and/or West Virginia corporations,

Defendants Below, Respondents



                             MEMORANDUM DECISION
        Petitioners Greg Winland and Tri-State Concrete Pumping, Inc., by counsel John E.
Triplett, Jr., appeal the Circuit Court of Kanawha County’s order dismissing petitioners’ civil
action pursuant to Rule 41(b) of the West Virginia Rules of Civil Procedure for failure to
prosecute. Respondents West Virginia Regional Jail and Correctional Facility Authority and
Wyetta Fredericks, in her capacity as its Executive Director, by counsel Jeffrey W. Lilly, filed a
response. Petitioners filed a reply.

       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.

        Petitioners1 filed their civil action in the Circuit Court of Kanawha County on or about
July 5, 2007, and alleged that respondents2 improperly released recorded phone conversations

       1
         According to the complaint, Petitioner Greg Winland is a resident of Belpre, Ohio, and
Petitioner Tri-State Concrete Pumping, Inc. is a company 100% controlled by Petitioner
Winland.
       2
         According to the complaint, “John Does 1 through 5, West Virginia residents” were
believed to have been officers or agents of Respondent Regional Jail and Correctional Facility
Authority. “John Does 1 through 5, Ohio residents” and “Business Organization XYZ, and
Corporations 1 through 5, Ohio and/or West Virginia corporations” were alleged to have been
the recipients of the taped conversations.
                                                1

between Petitioner Winland and an inmate of the Northern Regional Jail, located in Doddridge
County, West Virginia. The inmate was allegedly a former employee of Petitioner Tri-State
Concrete Pumping, Inc. Petitioners allege that the taped conversations were released by
respondents pursuant to an Ohio state court subpoena, served in West Virginia, and issued in an
Ohio divorce action between Petitioner Winland and his now former wife. The recordings were
allegedly received by the attorney for Petitioner Winland’s ex-wife. Petitioners alleged the
following: (1) violation of petitioners’ civil rights, (2) outrageous conduct, (3) invasion of
privacy, (4) violation of various West Virginia statutes on eavesdropping and wire-tapping,3 (5)
negligence, (6) negligent training, and (7) negligent supervision.4 The substance of the taped
conversations, and how they may have affected petitioners, is unclear from the record.

        Respondents filed their answer to the complaint on or about September 7, 2007. On
September 17, 2008, the circuit court issued a “Notice of Intent to Involuntarily Dismiss” the
case due to inactivity in excess of one year. On October 2, 2008, petitioners filed a motion to
retain the case on the docket, and served their first set of written discovery requests on
respondents.5 Respondents served their answers to discovery on November 3, 2008.

        On August 10, 2009, petitioners filed a Notice of Deposition for the attorney for
Petitioner Winland’s ex-wife and scheduled the deposition for the next day in Marietta, Ohio.
The certificate of service reflects that petitioners’ counsel served the notice on respondents’
counsel by depositing the same in United States mail on August 11, 2009, the day of the
deposition.

        On October 18, 2010, respondents filed their motion to dismiss for failure to prosecute, to
which petitioners responded four months later, on or about February 28, 2011. On May 5, 2011,
the circuit court held a hearing on respondents’ motion and heard argument from both sides.



       3
           Petitioners fail to identify the statutes in the complaint or in their brief to this Court.
       4
         Petitioners had previously filed the same suit in the Circuit Court of Doddridge County,
prompting a motion to dismiss by respondents. Prior to the dismissal of respondents herein from
the Doddridge County action, petitioners filed the present suit in Kanawha County. Petitioners
assert that the Doddridge County action is still pending as it relates to the other defendants.
Petitioner attempted to include the pleadings from the Doddridge County action in the appendix
record for the present appeal, prompting a motion to strike by respondents on May 8, 2013. By
Order of June 18, 2013, this Court granted respondents’ motion to strike and ruled that “all
documents contained in the appendix record, that are not part of the Circuit Court of Kanawha
County record, be, and they hereby are, stricken.”
       5
        Also on October 2, 2008, the Circuit Court of Kanawha County, Judge Berger presiding,
entered an order dismissing the case from its docket pursuant to Rule 41(b) of the West Virginia
Rules of Civil Procedure. It is unclear from the appendix record, but presumably this order was
rescinded as the matter remained on the court’s docket until Judge Webster’s subsequent
dismissal, which is the subject of this appeal.


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Respondent argued that at the time of their October 18, 2010, motion, there had been no activity
in the case for over one year. Petitioners argued that the case was procedurally complicated due
to the initial filing in Doddridge County, confusion over the apparent dismissal of the case on
October 2, 2008, by Judge Berger, the need for respondents to supplement their discovery
responses6, and the difficulties obtaining depositions of the Ohio divorce attorney and Petitioner
Winland’s ex-wife7 that resulted in Ohio litigation over her motion to quash a subpoena.

        In its ruling, the circuit court acknowledged the preference for resolving cases on their
merits, but found that the record demonstrated that there was no activity for over one year prior
to the filing of the motion to dismiss; that the court had previously dismissed the case for failure
to prosecute, but afforded petitioners another opportunity to prosecute their case; but despite this
second opportunity, petitioners still failed to prosecute the case. By order entered January 22,
2013, the court dismissed the action with prejudice. From this order, petitioners appeal to this
Court.

        This Court reviews a circuit court’s dismissal of a case for inactivity pursuant to Rule
41(b) under an abuse of discretion standard. Caruso v. Pearse, 223 W.Va. 544, 678 S.E.2d 50
(2009). Petitioners raise three assignments of error that can be addressed as a single issue:
Whether the circuit court abused its discretion by dismissing petitioners’ civil action with
prejudice. Petitioners argue that the circuit court failed to consider the multi-jurisdictional effort
that was required to move the case along; that the court failed to consider the lack of prejudice on
the part of respondents; and that dismissal with prejudice is a draconian measure reserved for the
most flagrant demonstrations of inactivity.

        We disagree with petitioners and find no abuse of discretion in the dismissal of the case.
In an attempt to resuscitate their Kanawha County civil action, petitioners point to irrelevant
activity in Doddridge County and the State of Ohio. Petitioners’ only activity in the Kanawha
County civil action is: (1) the filing of the suit on July 5, 2007, (2) the October 2, 2008, motion
to retain the case on the docket after the first notice of intent to dismiss and first set of discovery
requests, (3) an untimely notice of deposition on August 10, 2009, and (4) the February 28, 2011,
second motion to retain the case on the docket. In nearly six years, the only attempt to prosecute
the case is one set of discovery requests that appear to have been served in an attempt to fend off
the circuit court’s first notice of intent to dismiss.
        In Whiting v. Marion County Sheriff’s Department, No. 11-0575 (W.Va. Supreme Court,
September 21, 2012) (memorandum decision), this Court upheld the dismissal of a pro se
plaintiff’s suit where the inactivity exceeded one year and where the plaintiff argued that he was
not aware of the requirements to move the case to conclusion. In the present case, petitioners are
represented by counsel and are asking for a third chance to prosecute their case that was filed in
2007. Given this Court’s refusal to find an abuse of discretion under the facts in Whiting, we
certainly cannot find the same in present case.

       6
           Petitioners filed no motions to compel additional discovery.
       7
        Petitioner Winland’s ex-wife’s deposition was noticed to take place on March 14, 2011,
in Marietta, Ohio. Petitioners’ counsel served the notice by facsimile and regular mail on March
11, 2011.
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       As to petitioners’ claim that the circuit court failed to consider the lack of prejudice to
respondents, we do not believe such a consideration was required under the facts in this case. We
have held that

       the plaintiff bears the burden of going forward with evidence as to good cause for
       not dismissing the action; if the plaintiff does come forward with good cause, the
       burden then shifts to the defendant to show substantial prejudice to it in allowing
       the case to proceed; if the defendant does show substantial prejudice, then the
       burden of production shifts to the plaintiff to establish that the proffered good
       cause outweighs the prejudice to the defendant.

Syl. Pt. 3, in part, Dimon v. Mansy, 198 W.Va. 40, 479 S.E.2d 339 (1996). Dimon does not call
for a shift in the burden to respondents to show prejudice if petitioners fail to show good cause
for the inactivity. At the May 5, 2011, hearing, the circuit court gave petitioners an opportunity
to demonstrate good cause as to why the case should not be dismissed. The court heard the
petitioners’ argument that the Doddridge County and State of Ohio proceedings caused the delay
in the Kanawha County case. Simply put, the court was not persuaded. Petitioners maintain a
“continuing duty to monitor a case from the filing until the final judgment,” and failed to do so.
Dimon, 198 W.Va. at 45, 479 S.E.2d at 344. Therefore, the burden did not shift to respondents to
show prejudice.

        Finally, as for petitioners’ challenge to the dismissal being with prejudice, we find that
Rule 41(b) itself calls for such a result. The rule clearly states, in part, that “[u]nless the court in
its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal
not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue,
operates as an adjudication upon the merits.” Dismissal with prejudice is supported by the rule.
Therefore, we find no abuse of discretion by the circuit court in dismissing the case with
prejudice.


       For the foregoing reasons, we affirm.

                                                                                             Affirmed.

ISSUED: November 8, 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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