                REPORTED


  IN THE COURT OF SPECIAL APPEALS

             OF MARYLAND


                 No. 0364

           September Term, 2015


       CHARNE SPENCER

                    v.

ESTATE OF LEONIDAS G. NEWTON, et al.



       Graeff,
       Leahy,
       Wilner, Alan M.
          (Retired, Specially Assigned),

                    JJ.



           Opinion by Wilner, J.


      Filed: February 25, 2016
       The sole issue before us in this appeal is whether the Circuit Court for Baltimore

City abused its discretion in dismissing appellant’s complaint pursuant to Md. Rule 2-

507(c) for lack of prosecution. We shall conclude that it did not and therefore shall

affirm the judgment of dismissal.

       With exceptions not relevant here, Rule 2-507 permits the court to dismiss a civil

action (1) under section (b) of the Rule for lack of jurisdiction over a defendant when the

defendant has not been served or the court has not otherwise acquired jurisdiction over

the defendant at the expiration of 120 days from the issuance of original process directed

at that defendant, and (2) under section (c) of the Rule for lack of prosecution at the

expiration of one year from the last docket entry. In this case, although there was a two-

year delay in serving the appellee, the action was dismissed under section (c) of the Rule

for inactivity extending more than a year since the last docket entry.

                                    BACKGROUND

       On July 17, 2012, appellant filed a 10-count complaint against five defendants.

The gravamen of the complaint, as to each defendant, was that, during the period 1991

through 1996, appellant suffered from the ingestion of paint and dust containing lead

while residing in a property owned by that defendant. One of the defendants was

“Leonidas G. Newton and/or the Estate of Leonidas G. Newton.” In fact, Mr. Newton

had died in November 2009, and on December 17, 2009, his son, Leonidas A. Newton,

and an attorney, Donald P. Mazor, Esq. (who is the Estate’s attorney in this appeal) were



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appointed co-personal representatives by the Register of Wills for Baltimore City. For

convenience, we shall refer to the decedent and the Estate collectively as Newton.

       There were acknowledged problems in obtaining proper service of the complaint

on two of the other defendants – Donna Williams and Shaul Kazin. Service on Williams

was effected in November 2012, and the action against Kazin was dismissed in August

2013. Unrealized by appellant at the time, there also was a problem regarding service on

Leonidas and/or his Estate. Leonidas, as noted, had died more than two years before the

complaint was filed. The private process server employed by appellant reported that she

had effected service on Newton by leaving a copy of the complaint and summons with

Spring Ferguson, who the process server averred was authorized to accept service and

who acknowledged that she was a resident of the property where the papers were left.

Although it was ultimately determined that Ms. Ferguson did not reside at the property

and was not authorized to accept service, appellant apparently assumed that service had

properly been made and that the case therefore could proceed.

       Nonetheless, there was no further activity in the case – no docket entries – until

November 3, 2014, when, pursuant to Rule 2-507(d), the clerk of the court sent a notice

that the action would be dismissed for lack of prosecution 30 days after the date of the

notice unless, prior to then, a motion showing good cause to defer the entry of an order of

dismissal was filed. The notice of potential dismissal produced three responses from

appellant, all filed on November 13, 2014 – a motion for an order of default against

Williams for failure to file a timely answer to the complaint, a similar motion directed


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against Newton, and a motion to suspend Rule 2-507. The motion for order of default

against Newton alleged that service had been effected on Leonidas G. Newton or the

Estate of Leonidas G. Newton on September 17, 2012 by leaving the summons and

complaint with Spring Ferguson, who was authorized to accept service.

       The motion to suspend the Rule, which technically should have been a motion to

defer entry of an order of dismissal under section (e) of the Rule, averred that the four

remaining defendants had been served and that appellant was prepared to proceed. He

attributed the delay to a mix-up in serving Williams but stated that that problem had been

resolved. A fair reading of that response indicates that appellant understood that the

notice was based on inactivity under section (c) of the Rule, rather than a delay in service

or lack of jurisdiction over any of the four remaining defendants.

       Newton responded with a motion to dismiss on the ground that Ms. Ferguson was

not a resident of the place where service was allegedly effected and that she was not

authorized to accept service. The motion was supported by an affidavit from Mr. Mazor

that Leonidas G. Newton had died in 2009, that the parties to be served were the co-

personal representatives, that no service had ever been effected on them, and that

dismissal was appropriate under Rule 2-507(b) for lack of jurisdiction.

       The court, through Judge DiPietro, denied the motions for order of default because

of technical deficiencies in the motions themselves. Newton’s motion to dismiss was

referred to Judge Fletcher-Hill who, on February 6, 2015, signed an order (1) dismissing

the action against Leonidas G. Newton because he was dead, (2) quashing the alleged

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service on the Estate, (3) giving appellant 60 days to effect service on a personal

representative of the Estate, and (4) in light of that extension, denying the motion to

dismiss without prejudice. Unfortunately, that order was not filed with the clerk until

February 19, 2015 and apparently was not docketed until February 20.

       The motion to defer dismissal under Rule 2-507 was referred to Judge Pierson, the

administrative judge, who conducted a hearing on it on the morning of February 19,

2015. The Estate had not yet been served and, as noted, Judge Fletcher-Hill’s order

extending the time for service had not yet been docketed. It is not clear whether, at the

time of the hearing, that order had yet been filed, although Judge Pierson was aware that

a hearing had been held by Judge Fletcher-Hill. Counsel for appellant argued that he was

making every effort to resolve the “service issues” and asked for a deferral.

       Judge Pierson noted that the service issues (except for non-service on the Estate)

had been resolved by August 2013 and that there had been no activity since then, until the

notice of dismissal was sent by the clerk. He observed that no justification had been

offered for the delay and that, to warrant a deferral, “[t]here has to be some fact, even a

scintilla of a fact that would justify the delay.” There being none, he concluded that there

was no good cause to defer dismissal, and he therefore dismissed the action. The tenor of

his remarks indicates that Judge Pierson also viewed the problem as inactivity under

section (c) of the Rule, for lack of prosecution, rather than under section (b) for lack of

service.




                                              4
       Later that afternoon, service was effected on Mr. Mazor, as co-personal

representative of the Estate. A week later, appellant moved for reconsideration of the

dismissal. He called attention to Judge Fletcher-Hill’s order and to the fact that service

had been made within the time allowed by that order. Although acknowledging the long

period of inactivity, he asserted that he was then ready, willing, and able to proceed and

that the defendants had suffered no prejudice from the delay. He contended that the

purpose of Rule 2-507 was to remove cases that no one desired to litigate, but that this

was not one of them. The Estate responded that there was, in fact, no justification for the

inactivity and that the Estate had been prejudiced by the delay. In that regard, the

personal representative pointed out that the Estate was close to being wound up and to

keep the case alive would delay the closing and result in additional expense.

       On April 17, 2015, Judge Pierson denied the motion. He made no specific finding

as to prejudice to the Estate (or any other defendant) but dismissed the relevance of Judge

Fletcher-Hill’s order because it dealt with a different issue and had not been filed until

after the case had already been dismissed. This appeal ensued.

                                    DISCUSSION
       Although there have been scores of cases interpreting and implementing Rule 2-

507(c) and its predecessor Rule 530, the essential principles governing the ultimate

decision to be made by the court can be gleaned from Powell v. Gutierrez, 310 Md. 302

(1987), the case that established the appropriate guidelines. Powell made clear that the

purpose of the Rule was to “prune[] the docket of dead cases” – cases in which “neither


                                              5
party demonstrates an interest in having the issue resolved.” Powell, 310 Md. at 308. It

was not, the Court pointed out, “to penalize plaintiffs for having lax attorneys.” Id. The

Court gave some examples of the kinds of situations that the Rule was designed to deal

with but did not purport to limit application of the Rule to just those situations.

       Although a case is subject to dismissal under the Rule for lack of prosecution for

one year from the last docket entry, the Powell Court made clear that lack of prosecution

alone does not require automatic dismissal. The test under the Rule is whether there is

“good cause” to defer dismissal and, in applying that test, there are several factors that a

court must consider, weigh, and balance. Two factors pertain to the status and conduct of

the plaintiff: (1) is the plaintiff currently ready, willing, able, and desirous of proceeding

with prosecution of the case, and (2) was there any justification for the delay?

       From the defendant’s perspective, the court must consider whether the defendant

“has suffered serious prejudice because of the delay, so as to impede substantially his

[her, or its] ability to defend the suit.” Id. at 308. Where appropriate, the court must take

into account that the defendant also has a responsibility “to promote the orderly

resolution of litigation” and may not “sit back and allow the prescribed period under the

Rule to pass in the hope that the court will dismiss the case irrespective of the vitality of

the litigation.” Id. at 309. Thus, where the defendant claims prejudice because of the

plaintiff’s delay, “the trial court must include as a consideration in the weighing process

the efforts made by the defendant to secure a resolution of the case.” Id. at 308-09. See

also Younker v. Schmid Products Co., 310 Md. 493, 495 (1987).


                                               6
       In the end, although the court must consider, weigh, and balance these factors, the

ultimate decision whether to defer dismissal is within the trial court’s discretion, and the

appellate court must give deference to the exercise of that discretion. Powell, at 309;

Stanford v. District Title Insur., 260 Md. 550, 555 (1971), construing the predecessor

Rule 530 (the decision “rests in the sound discretion of the trial judge and we will only

invade his province on appeal in extreme cases of clear abuse”).

       We find no abuse in the court’s exercise of its discretion in this case. Although, as

it turned out, there was a significant delay in effecting service on Newton, appellant was

not remiss in relying on the affidavit of its private process server and assuming that

Newton had been properly served back in 2012. That does not work to his benefit,

however, at least under §(c) of the Rule. Appellant believed as early as 2012 that all

defendants, except the one dismissed, had been properly served and yet did nothing for

two years to move the case – even, so far as the record reveals, to commence discovery.

In the meanwhile, administration of the Estate proceeded to the point that the Estate was

nearing closure. There was nothing that the Estate could have done to move the case,

because, from its perspective, it had not been served and therefore was not a party.

       What Judge Pierson had before him was a delay wholly attributable to appellant

that simply was inexcusable – without any justification. In his brief, appellant notes that,

in lead paint cases, there are situations in which some delay may be justified – locating

landlords who owned houses that the plaintiff lived in years ago, delays in serving those

landlords, determining insurance coverage – but none of those factors were asserted,


                                              7
much less proved to exist, in this case. The unjustified delay here was not one year, but

two, and the fact of prejudice to Newton was presented to Judge Pierson. To start the

litigation now – to conduct the necessary investigation, to complete discovery and

commence motion practice – could keep the Estate open for years, which the law does

not favor, and force all four defendants to begin searching records from 1991-96. Where

there has been an inexcusable delay for more than a year and resulting prejudice to the

defendant, the plaintiff’s newfound desire, readiness, and ability to proceed does not

require the court to defer dismissal.



                                    JUDGMENT AFFIRMED;
                                    APPELLANT TO PAY THE COSTS.




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