MEMORANDUM DECISION
                                                                                      FILED
Pursuant to Ind. Appellate Rule 65(D),                                            Jul 12 2019, 7:27 am
this Memorandum Decision shall not be                                                 CLERK
regarded as precedent or cited before any                                         Indiana Supreme Court
                                                                                     Court of Appeals
                                                                                       and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                            ATTORNEY FOR APPELLEE
Jim Nowacki                                                 MAIACO, LLC
Gary, Indiana                                               Michael V. Knight
                                                            Barnes & Thornburg, LLP
                                                            South Bend, Indiana


                                             IN THE
     COURT OF APPEALS OF INDIANA
Jim Nowacki,                                                July 12, 2019
Appellant-Plaintiff,                                        Court of Appeals Case No.
                                                            18A-PL-830
        v.                                                  Appeal from the Lake Superior
                                                            Court
Gary Redevelopment                                          The Honorable Bruce D. Parent,
Commission, Kenya Jones, Eric                               Judge
Reaves, Namon Flournoy, Bill                                Trial Court Cause No.
Joiner, Marion J. Johnson, and                              45D04-1608-PL-75
Maiaco, LLC,1
Appellees-Defendants.




1
 Attorney Gilbert King, Jr., filed an appearance and brief for the appellee parties other than Maiaco, LLC.
However, the brief was returned as defective, and a corrected brief was not submitted or filed.

Court of Appeals of Indiana | Memorandum Decision 18A-PL-830 | July 12, 2019                              Page 1 of 9
      Mathias, Judge.


[1]   The Lake Superior Court dismissed Jim Nowacki’s (“Nowacki”) complaint

      against the Gary Redevelopment Commission, Kenya Jones, Eric Reaves,

      Namon Flournoy, Bill Joiner, Marion J. Johnson,2 and Maiaco, LLC

      (collectively “the Appellees”) pursuant to Trial Rule 41(E). Nowacki appeals

      and argues that the trial court abused its discretion when it dismissed his

      complaint for failure to prosecute.

[2]   We affirm.


                                  Facts and Procedural History
[3]   On August 3, 2016, Nowacki filed a complaint for declaratory judgment and

      injunctive relief against the Appellees alleging that the Gary Redevelopment

      Commission improperly entered into a contract with Maiaco, LLC, after they

      colluded to prevent any other bids for a “redevelopment partner organization.”

      Appellant’s App. p. 9. Nowacki also alleged that the Gary Redevelopment

      Commission’s bidding process “did not comply with City of Gary Ordinances

      regarding contracting.” Id. at 7. The Appellees generally denied the allegations

      in Nowacki’s complaint and also raised several affirmative defenses, including

      failure to state a claim for which relief can be granted.




      2
       The commissioners were dismissed from the proceedings in their individual capacities on January 19, 2018
      pursuant to Indiana Code section 34-13-3-5(a). Appellee’s App. p. 122.

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-830 | July 12, 2019                   Page 2 of 9
[4]   The trial court held a case management conference on January 31, 2017. At the

      conference, Nowacki indicated that he intended to hire counsel. The parties

      also agreed that Nowacki would respond to all outstanding discovery by March

      30, 2017. Further, the court ordered all discovery to be completed by October

      31, 2017.


[5]   Prior to the case management conference, Maiaco had served interrogatories

      and requests for production of documents on Nowacki. On March 29, 2017,

      Nowacki responded to the discovery requests. Nowacki answered three of the

      twenty-two interrogatories. With regard to the remaining nineteen

      interrogatories, Nowacki replied that he “would like to meet with [his] attorney

      on these questions as they are beyond my ability and knowledge to answer.”

      Appellee’s App. p. 29. Maiaco also served on Nowacki requests for production

      of documents that would support the allegations in his complaint. Nowacki

      responded that he had “no such document[s] in [his] possession at this time.”

      Id. at 30. However, Nowacki did produce emails in his possession that

      concerned the bidding process.


[6]   Nowacki did not supplement his discovery responses, serve any discovery

      requests on the Appellees, or file any pleadings. Therefore, on September 15,

      2017, Maiaco filed a motion to dismiss for failure to prosecute pursuant to Trial

      Rule 41(E). Shortly thereafter, the remaining Appellees also moved to dismiss

      Nowacki’s complaint.




      Court of Appeals of Indiana | Memorandum Decision 18A-PL-830 | July 12, 2019   Page 3 of 9
[7]   On October 23, 2017, the trial court held a show cause hearing on the motions

      to dismiss Nowacki’s complaint. Nowacki appeared pro se. The court explained

      the discovery process to Nowacki and the importance of answering the

      Appellees’ discovery requests. After hearing argument of the parties, the trial

      court took the motions to dismiss under advisement. The court also ordered

      Nowacki to “thoroughly” complete and return any outstanding discovery to

      Defense counsel by November 20, 2017. Id. at 78. On its own motion, the court

      also ordered the parties to complete all discovery by December 29, 2017.

      Nowacki did not provide any discovery responses to Maiaco3 within the time

      frames established in the trial court’s October 23, 2017 case management order.


[8]   On November 28, 2017, the Appellees filed a second motion to dismiss for

      failure to prosecute. Nowacki did not file a response to the motion. However,

      on December 28, 2017, he filed five separate discovery documents on the court,

      which he failed to serve on opposing counsel.


[9]   The trial court held a hearing on January 17, 2018, at which Nowacki again

      appeared pro se. The trial court granted the motions to dismiss after finding:


              This judicial officer generally holds a “soft spot” for Self-
              Represented Litigants; to this end, the Court reached[ ]out
              further than most Courts would have related to this Court’s
              Order of October 23, 2017, explaining to NOWACKI in open
              court how to conduct discovery and how the discovery rules



      3
        On November 19, 2017, Nowacki served the Gary Redevelopment Commission with answers to Maiaco’s
      interrogatories.

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-830 | July 12, 2019            Page 4 of 9
               actually work. This Court has long enjoyed the fighting spirit of
               NOWACKI and recognizes the significant amount of work that
               he puts into certain portions of his cases.


               Discovery is closed and NOWACKI did not provide either
               remaining party with discovery to which each is entitled.


               NOWACKI[] … did not follow the discovery rules, did not
               provide MAIACO and the RDC with the discovery sought in a
               timely or complete manner, and most importantly did not move
               his case forward as he was Ordered by the Court.


       Appellee’s App. p. 17.


[10]   The Gary Redevelopment Commission filed a motion to amend the trial court’s

       order, which the court granted. Specifically, the court amended its order to

       clarify that Nowacki “did timely provide the discovery at issue to counsel” for

       the Gary Redevelopment Commission defendants, but not Maiaco. Id. at 110.

       Further, the court found that “the discovery at issue was owed to MAIACO,

       and it remains true and uncontested that NOWACKI did not provide this

       discovery to counsel for MAIACO.” Id. Therefore, the trial court affirmed its

       order dismissing Nowacki’s complaint.

[11]   Nowacki subsequently filed a motion for relief from judgment and a motion to

       correct error. In its order denying the motions, the court found that Nowacki

       “neither heeded the warnings of this Court nor availed himself to the extensions

       provided” and “ignored the Court’s instructions and [] failed to comply with the

       Court’s deadlines.” Id. at 123. Nowacki now appeals.


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-830 | July 12, 2019   Page 5 of 9
                                       Discussion and Decision

[12]   Nowacki’s complaint was dismissed pursuant to Trial Rule 41(E), which

       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 costs 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.


[13]   “[W]e 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.


[14]   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.’” Id. 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
       Court of Appeals of Indiana | Memorandum Decision 18A-PL-830 | July 12, 2019   Page 6 of 9
       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)). See also Wright v. Miller, 989 N.E.2d 324, 327 (Ind. 2013)

       (observing that Indiana’s trial courts decide over 1.5 million cases per year and

       “[m]anaging such a heavy volume demands robust court docket management

       and insistence upon compliance with the discovery rules, which are specifically

       intended to minimize the need for judicial involvement”).4


[15]   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:


                (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




       4
        Wright was decided in 2013, and in the ensuing six years, the caseload of our trial courts statewide has
       grown to more than two million cases per year. See Indiana Judicial Branch Website at
       https://www.in.gov/judiciary/admin/2666.htm (last visited on June 27, 2019).

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-830 | July 12, 2019                       Page 7 of 9
               into action by a threat of dismissal as opposed to diligence on the
               plaintiff's part.


       Id.


[16]   “‘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).


[17]   In this case, there was a ten-month delay during which Nowacki failed to

       respond to discovery requests. And the trial court found that Nowacki failed to

       establish a reason or excuse for the delay. Nowacki, who is proceeding pro se, is

       also responsible for the delay. The trial court gave him extensions to complete

       discovery, and he failed to do so, without explanation. The trial court was

       patient with Nowacki and gave him additional time to complete discovery after

       he failed to comply with the court’s first case management order. Although

       dismissal of his complaint is a severe sanction, Nowacki failed to avail himself

       of the opportunity the court gave him to avoid dismissal. As the trial court

       appropriately observed,


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-830 | July 12, 2019   Page 8 of 9
               NOWACKI neither heeded the warnings of this Court nor
               availed himself to the extensions provided. He has ignored the
               Court’s instructions and has failed to comply with the Court’s
               deadlines. Rhetorically, the Court must ask what the purpose is
               of a deadline if it can be freely ignored without consequence?


       Appellant’s App. p. 123.

[18]   Our judicial preference for deciding cases on their merits always weighs against

       dismissal. And in this case, the only prejudice to the Appellees is the lingering

       nature of this case. But the remaining factors weigh in favor of dismissal, and in

       particular, Nowacki’s failure to comply with the court’s case management

       orders without any explanation weighs heavily against his arguments. For this

       reason, we conclude that the trial court acted within its discretion when it

       dismissed Nowacki’s complaint.


[19]   Affirmed.


       Vaidik, C.J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-830 | July 12, 2019   Page 9 of 9
