MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                 Dec 26 2018, 8:13 am
regarded as precedent or cited before any
                                                                           CLERK
court except for the purpose of establishing                           Indiana Supreme Court
                                                                          Court of Appeals
the defense of res judicata, collateral                                     and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEES
Michael P. Quirk                                         Codie J. Ross
Quirk & Hunter, PC                                       Reminger Co., L.P.A.
Muncie, Indiana                                          Fort Wayne, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Ryan E. Shreeve,                                         December 26, 2018
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         18A-CT-1474
        v.                                               Appeal from the Delaware Circuit
                                                         Court
Muncie Chevrolet-Cadillac, Inc.,                         The Honorable John M. Feick,
a/k/a American Chevrolet                                 Judge
Cadillac of Muncie and Stephen                           Trial Court Cause No.
DeAnda,                                                  18C04-1708-CT-85
Appellees-Defendants.



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CT-1474 | December 26, 2018              Page 1 of 7
                                       Statement of the Case
[1]   Ryan E. Shreeve appeals the trial court’s dismissal of his complaint against

      Muncie Chevrolet-Cadillac, Inc., a/k/a American Chevrolet Cadillac of

      Muncie, and Stephen DeAnda (collectively, “American Chevrolet”) for failure

      to prosecute under Indiana Trial Rule 41(E). Shreeve raises one issue for our

      review, namely, whether the trial court abused its discretion when it dismissed

      his complaint.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On August 31, 2017, Shreeve filed a complaint for damages against American

      Chevrolet. American Chevrolet filed its answer and affirmative defenses on

      September 25. Thereafter, on October 10, American Chevrolet issued

      interrogatories and a request for production to Shreeve. On November 28, after

      Shreeve had failed to respond to the interrogatories or the request for

      production, American Chevrolet’s counsel wrote a letter to Shreeve’s counsel to

      inquire into the status of Shreeve’s responses. In that letter, American

      Chevrolet requested that Shreeve file his responses by December 5. Shreeve

      again did not respond to American Chevrolet’s interrogatories or request for

      production, so American Chevrolet’s counsel called Shreeve’s counsel.

      Shreeve’s counsel informed American Chevrolet’s counsel that Shreeve would

      provide responses within a few days. However, Shreeve still did not file his




      Court of Appeals of Indiana | Memorandum Decision 18A-CT-1474 | December 26, 2018   Page 2 of 7
      responses. Accordingly, on December 27, American Chevrolet filed a motion

      to compel discovery.


[4]   On January 2, 2018, the trial court issued an order to compel discovery. In that

      order, the trial court ordered Shreeve to fully respond to American Chevrolet’s

      interrogatories and request for production within two weeks. But Shreeve did

      not comply with the court’s order. Accordingly, on January 23, American

      Chevrolet filed a motion to dismiss Shreeve’s complaint for failure to prosecute.

      Shreeve then filed his responses to American Chevrolet’s interrogatories and

      request for production on January 31, but the responses were incomplete and

      unsigned. After a hearing on American Chevrolet’s motion to dismiss, the trial

      court granted American Chevrolet’s motion and dismissed Shreeve’s complaint

      on March 29. This appeal ensued.


                                     Discussion and Decision
[5]   Shreeve contends that the trial court abused its discretion when it dismissed his

      complaint for failure to prosecute. Indiana Trial Rule 41(E) provides:


              Whenever there has been a failure to comply with these rules or
              when no action has been taken in a civil case for a period of sixty
              (60) days, the court, on motion of a party or on its own motion
              shall order a hearing for the purpose of dismissing such case.
              The court shall enter an order of dismissal at plaintiff’s cost if the
              plaintiff shall not show sufficient cause at or before such hearing.
              Dismissal may be withheld or reinstatement of dismissal may be
              made subject to the condition that the plaintiff comply with these
              rules and diligently prosecute the action and upon such terms
              that the court in its discretion determines to be necessary to
              assure such diligent prosecution.

      Court of Appeals of Indiana | Memorandum Decision 18A-CT-1474 | December 26, 2018   Page 3 of 7
[6]   As this court has recently stated, “we will reverse a Trial Rule 41(E) dismissal

      for failure to prosecute only in the event of a clear abuse of discretion, which

      occurs if the trial court’s decision is against the logic and effect of the facts and

      circumstances before it.” Petrovski v. Neiswinger, 85 N.E.3d 922, 924 (Ind. Ct.

      App. 2018). “We will affirm if there is any evidence that supports the decision

      of the trial court.” Belcaster v. Miller, 785 N.E.2d 1164, 1167 (Ind. Ct. App.

      2003), trans. denied.


[7]   The purpose of Trial Rule 41(E) is “‘to ensure that plaintiffs will diligently

      pursue their claims. The rule provides an enforcement mechanism whereby a

      defendant, or the court, can force a recalcitrant plaintiff to push his case to

      resolution.’” Belcaster, 785 N.E.2d at 1167 (quoting Benton v. Moore, 622 N.E.2d

      1002, 1006 (Ind. Ct. App. 1993)). The plaintiff bears the burden of moving the

      litigation and the trial court has no duty to urge or require counsel to go to trial,

      even where it would be within the court’s power to do so. Lee v. Pugh, 811

      N.E.2d 881, 885 (Ind. Ct. App. 2004). “‘Courts cannot be asked to carry cases

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

      considered. He should not be left with a lawsuit hanging over his head

      indefinitely.’” Belcaster, 785 N.E.2d at 1167 (quoting Hill v. Duckworth, 679

      N.E.2d 938, 939-40 (Ind. Ct. App. 1997)).


[8]   In Indiana, courts must balance nine factors when determining whether to

      dismiss a case for failure to prosecute. Petrovski, 85 N.E.3d at 925. Those

      factors include:



      Court of Appeals of Indiana | Memorandum Decision 18A-CT-1474 | December 26, 2018   Page 4 of 7
              (1) the length of the delay; (2) the reason for the delay; (3) the
              degree of personal responsibility on the part of the plaintiff; (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
              the delay; (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 a threat of dismissal as opposed to diligence on the
              plaintiff’s part.


      Id. “‘The weight any particular factor has in a particular case appears to

      depend upon the facts of that case.’” Id. (quoting Belcaster, 785 N.E.2d at 1167).

      “However, a lengthy period of inactivity may be enough to justify dismissal

      under the circumstances of a particular case, especially if the plaintiff has no

      excuse for the delay.” Belcaster, 785 N.E.2d at 1167. Although Indiana does

      not require trial courts to impose lesser sanctions before applying the ultimate

      sanction of dismissal, we view dismissals with disfavor, and dismissals are

      considered extreme remedies that should be granted only under limited

      circumstances. Caruthers v. State, 58 N.E.3d 207, 211 (Ind. Ct. App. 2016).


[9]   On appeal, Shreeve contends that the trial court abused its discretion when it

      dismissed his complaint because his delay in responding was not lengthy and

      because he had a valid reason for his delay. But, contrary to Shreeve’s

      assertion, we hold that several factors support the trial court’s dismissal of

      Shreeve’s complaint, namely, the length of the delay, the reason for the delay,

      and the extent to which Shreeve was stirred to action by threat of dismissal.
      Court of Appeals of Indiana | Memorandum Decision 18A-CT-1474 | December 26, 2018   Page 5 of 7
[10]   First, the evidence shows that Shreeve took no action in this case from the date

       he filed his complaint on August 31, 2017, until he filed his discovery responses

       on January 31, 2018. Indeed, Shreeve failed to respond to American

       Chevrolet’s discovery requests even after American Chevrolet twice contacted

       Shreeve to obtain his responses and after the trial court ordered Shreeve to

       respond. Rather, Shreeve filed his responses fifteen days after the deadline

       provided in the trial court’s order, and, even then, his responses were

       incomplete and unsigned.


[11]   Second, Shreeve did not provide a compelling reason for his delay in

       responding prior to the trial court’s dismissal of his complaint. On appeal,

       Shreeve contends that his “medical history and current medical conditions

       played a large part” in his delay in responding. Appellant’s Br. at 10. But

       Shreeve has not provided any evidence to indicate that he made that claim to

       the trial court before or during the hearing on the motion to dismiss for failure

       to prosecute.1 And Trial Rule 41(E) provides that a court “shall” enter an order

       of dismissal if a plaintiff does not show good cause for the delay “at or before” a

       hearing on the motion to dismiss.


[12]   Finally, the extent to which Shreeve was stirred into action by a threat of

       dismissal as opposed to his own diligence is clear. Despite two requests from




       1
         Shreeve did not provide a transcript of the hearing on the motion to dismiss for failure to prosecute. But, in
       his brief on appeal, he does not assert that he argued his medical condition to the trial court in that hearing.
       Rather, the record indicates that, for the first time in a motion to correct error, Shreeve argued his medical
       condition to the trial court as a reason for his failure to timely respond.

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-1474 | December 26, 2018                   Page 6 of 7
       American Chevrolet and a trial court order compelling Shreeve to respond,

       Shreeve did not take any action in this case until eight days after American

       Chevrolet had filed its motion to dismiss.


[13]   Indiana Trial Rule 41(E) requires only a sixty-day period of inaction before the

       trial court can dismiss a complaint. Here, Shreeve did not take any action for

       five months, and Shreeve only filed his responses after American Chevrolet had

       filed its motion to dismiss. Even then, Shreeve’s responses were incomplete

       and unsigned. While we prefer to decide cases on their merits, we cannot say

       that the trial court clearly abused its discretion when it dismissed Shreeve’s

       complaint for failure to prosecute. Thus, we affirm the trial court’s order.


[14]   Affirmed.


       Pyle, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CT-1474 | December 26, 2018   Page 7 of 7
