                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

Kenneth Bing,
Plaintiff Below, Petitioner                                                         FILED
                                                                               September 9, 2019
vs.) No. 18-0691 (Mineral County 09-C-86)                                        EDYTHE NASH GAISER, CLERK
                                                                                 SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA
Lumber and Things, Inc.,
Defendant Below, Respondent


                               MEMORANDUM DECISION


       Petitioner Kenneth Bing, by counsel John H. Treadway Jr., Jeffrey S. Bowers, Mark D.
Obenshain, and Justin M. Wolcott, appeals the Circuit Court of Mineral County’s July 11, 2018,
and July 30, 2018, orders granting respondent’s motion to dismiss for failure to prosecute.
Respondent Lumber and Things, Inc., by counsel David Collins, 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 affirming the circuit court’s order is appropriate under Rule 21 of the
Rules of Appellate Procedure.

        On October 30, 2008, petitioner, then employed by respondent, sustained a workplace
injury that required the partial amputation of his hand. Petitioner retained David E. Furrer, a
Maryland-based attorney licensed to practice in this state, to prosecute a deliberate intent cause of
action against respondent, claiming that respondent intentionally removed the protective guards
from the miter saw on which petitioner sustained his injury. Mr. Furrer filed a complaint on
petitioner’s behalf on July 27, 2009.1

        Respondent moved to dismiss the complaint for insufficient service of process and return
of service of process. Mr. Furrer responded to this motion, claiming that service was proper, but
the circuit court, on November 4, 2009, determined otherwise and afforded petitioner thirty days
to perfect proper service of process. Ultimately, Mr. Furrer effectuated proper service of process.

        Respondent served interrogatories and requests for production of documents on February
10, 2010. Responses to the requests were not timely filed, nor were they filed after respondent
twice requested responses. Accordingly, respondent moved to compel responses on April 16, 2010.

       1
       Although the facts giving rise to this appeal are undisputed, respondent denies the
wrongdoing alleged in petitioner’s complaint.
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Mr. Furrer (and petitioner) failed to appear at the hearing on the motion to compel. The circuit
court granted respondent’s motion and directed that responses be filed.

        On April 28, 2010, respondent served requests for admission upon petitioner. When
responses to these requests were similarly unforthcoming, respondent moved for summary
judgment arguing that, as the requests were now deemed admitted, petitioner would be unable to
prevail at trial. Mr. Furrer filed an “answer” to the motion for summary judgment claiming that he
never received the requests for admission. Mr. Furrer provided the court with affidavits from two
paralegals in his law office, who each asserted that they had no knowledge of any requests for
admission having been received by their office in the underlying case. The court denied
respondent’s motion for summary judgment on September 3, 2010.

        Following entry of that order, nearly eight years passed without activity in the case below.
The next activity occurred on June 4, 2018, when petitioner filed a notice of substitution of counsel.
Four days later, he served his first discovery requests through his newly-retained counsel.
Respondent filed a motion to dismiss for failure to prosecute on June 28, 2018. In his response to
this motion, petitioner asserted that Mr. Furrer never informed him of the motion to dismiss for
defective service, the discovery defaults, or the motion for summary judgment. Petitioner claimed
that Mr. Furrer never provided letters, e-mails, or phone messages with updates in his case, but
that phone records document that he called Mr. Furrer’s office no less than twenty-three times in
the period following the denial of respondent’s motion for summary judgment. When petitioner
called Mr. Furrer’s office, he was reportedly told that “these cases take time,” “we are working on
your case,” or to “be patient.”

         Petitioner further detailed that he first learned that Mr. Furrer was no longer employed by
his Maryland law firm and that the firm, having no other attorneys licensed in West Virginia, could
not represent him in a September of 2017 telephone call to Mr. Furrer. Petitioner stated that his
initial attempts to secure alternate representation were unsuccessful, but he eventually retained
current counsel on May 21, 2018, just prior to reinitiating activity in this case. Finally, petitioner
asserted that his current counsel learned that Mr. Furrer’s law license had been indefinitely
suspended in Maryland in January of 2018, and petitioner characterized the conduct leading to Mr.
Furrer’s license suspension as “strikingly similar” to that exhibited by Mr. Furrer in his
representation of petitioner.

        Following a hearing on the motion to dismiss, the circuit court granted respondent’s motion
on July 11, 2018. The court found that in the approximate ten-year period that had elapsed since
petitioner’s injury, respondent’s workforce had almost entirely turned over, its plant had been
retooled, and the equipment on which petitioner was injured was no longer available for viewing,
inspection, or examination. The court concluded that these facts rendered further prosecution
highly prejudicial to respondent’s ability to defend the suit, and that petitioner “appears to have
other remedies available to him.” The court amended its dismissal order on July 30, 2018, to
include the additional findings that the delay in prosecution was not attributable to petitioner, that
Mr. Furrer falsely told petitioner that his case was progressing, that petitioner acted diligently in
communicating with counsel to ascertain the status of his case, and that the prejudice to respondent
caused by the delay in prosecution was equally prejudicial to petitioner. This appeal followed.



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       In reviewing a circuit court order dismissing a case for inactivity under Rule 41(b) of the
West Virginia Rules of Civil Procedure, we apply an abuse of discretion standard. 2 See Caruso v.
Pearce, 223 W. Va. 544, 547, 678 S.E.2d 50, 53 (2009). The scope of review is limited as “[o]nly
where we are left with a firm conviction that an error has been committed may we legitimately
overturn a lower court’s discretionary ruling.” Id. (citations omitted).

        On appeal, petitioner argues that the circuit court abused its discretion in dismissing the
action because Mr. Furrer’s “extraordinary pattern of neglect and deception” demonstrated good
cause for not dismissing it. Petitioner asserts that he attempted to contact Mr. Furrer numerous
times and relied on Mr. Furrer’s assurances that his case was progressing. Additionally, petitioner
retained new counsel as soon as he was able. Relying on Covington v. Smith, 213 W. Va. 309, 582
S.E.2d 756 (2003), in which we reversed the circuit court’s denial of a motion to reinstate an action
dismissed for failure to prosecute, petitioner urges reversal here and states that any prejudice to
respondent caused by the delay is outweighed by Mr. Furrer’s pattern of neglect and deception.

       We outlined, in Syllabus Point 3 of Dimon v. Mansy, 198 W. Va. 40, 479 S.E.2d 339
(1996), certain guidelines a circuit court must follow in considering a motion to dismiss under
Rule 41(b). Procedurally,

       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.

Id. at 43, 479 S.E.2d at 342, Syl. Pt. 3, in part. We also instructed that, in weighing evidence of
good cause and substantial prejudice, a circuit court

       should also consider (1) the actual amount of time involved in the dormancy of the
       case, (2) whether the plaintiff made any inquiries to his or her counsel about the
       status of the case during the period of dormancy, and (3) other relevant factors
       bearing on good cause and substantial prejudice.

Id.

        In Covington, James and Jeraldine Covington, Alabama residents, retained counsel to
prosecute a personal injury lawsuit against two individuals to recover damages for injuries
sustained by Mr. Covington in West Virginia. 213 W. Va. at 314, 582 S.E.2d at 761. Counsel for
one of the defendants deposed several witnesses and filed a motion to compel the production of
certain documents, and Mr. Covington’s attorney deposed the defendants. Id. After no additional
activity occurred in the case for slightly more than one year, the circuit court filed notice of its


       2
         In pertinent part, Rule 41(b) provides that “[f]or failure of the plaintiff to prosecute or to
comply with these rules or any order of court, a defendant may move for dismissal of an action or
of any claim against the defendant.”
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intent to dismiss the suit for inactivity. Id. The Covingtons’ counsel filed a motion opposing
dismissal, but he neglected to inform the Covingtons of the pending dismissal proceedings. Id. The
circuit court dismissed the case for inactivity, and once the Covingtons’ counsel notified them of
the dismissal, they retained substitute counsel to pursue reinstatement of their suit. Id. The
Covingtons’ motion to reinstate their lawsuit was denied, and they appealed to this Court. Id.

         On appeal from the circuit court’s denial, we acknowledged the “discretionary nature of
such a determination,” but noted that “reinstatement is nevertheless proper where the moving party
demonstrates the existence of good cause for such relief.” Id. at 316, 582 S.E.2d at 763. There, we
were “firmly left with the conviction that an error ha[d] been committed as we [were] not
convinced that the inactivity . . . was so egregious as to necessitate the sanction of dismissal.” Id.
at 323, 582 S.E.2d at 770. The facts leading to this conclusion included that Mr. Covington made
numerous inquiries of his attorney regarding the status of his case, including ninety-one telephone
calls from January of 1998 to November of 2000 and two trips from Alabama to counsel’s office,
that only counsel and not the Covingtons were apprised of the court’s notice of its intent to dismiss,
and that the Covingtons discharged their prior counsel and retained new counsel once they learned
that prior counsel was not attempting to have their case reinstated. Id. These findings showed that
the Covingtons “fulfilled their ‘continuing duty to monitor [their] case’” and that they did not
contribute to any delay. Id. at 324, 582 S.E.2d at 771. Additionally, we found that any prejudice
to the defendants was not “so great as to outweigh the harm the Covingtons would suffer if the
dismissal of their case were to stand.” Id.

        As the circumstances of the instant matter are distinguishable from those presented in
Covington, we find no abuse of discretion in the circuit court’s dismissal of petitioner’s case. In
Covington, the matter sat dormant for hardly more than a year whereas almost eight years passed
without activity here. Contrasted with the Covingtons’ ninety-one telephone calls and two trips
from out of state to their attorney’s office over approximately three years, petitioner made a
fraction of the number of calls the Covingtons made and zero trips to counsel’s office over a longer
period of time. Critically, we found that the prejudice to the defendants in Covington did not
outweigh the harm to the Covingtons, but the circuit court found otherwise here, noting the
turnover in respondent’s workforce, retooling of its plant, and unavailability of the saw on which
petitioner sustained his injury. As we made clear in Dimon, a plaintiff must “establish that the
proffered good cause outweighs the prejudice to the defendant.” 198 W. Va. at 43, 479 S.E.2d at
342, Syl. Pt. 3, in part (emphasis added). We find no error in the circuit court’s conclusion that
petitioner made no such showing here.

       Moreover, we note that petitioner is not without remedy as he may have a cause of action
against Mr. Furrer for his failure to adequately represent petitioner. Rule 1.1 of the Rules of
Professional Conduct requires a lawyer to “provide competent representation to a client.
Competent representation requires the legal knowledge, skill, thoroughness and preparation
reasonably necessary for the representation.” In this vein,

             [w]hen this Court believes a case before it presents the appearance of
       conduct that does not comport with the West Virginia Rules of Professional
       Conduct (RPC), we will comply with Rule 8.3(a) of the RPC and [Rule 2.15(B)] of



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       the Code of Judicial Conduct, and refer the matter to the Office of Disciplinary
       Counsel for its review and appropriate action.

Syl. Pt. 8, Gum v. Dudley, 202 W. Va. 477, 505 S.E.2d 391 (1997). Accordingly, we direct the
Clerk of the Supreme Court of Appeals to transmit a certified copy of this memorandum decision
to the Office of Disciplinary Counsel.

       For the foregoing reasons, we affirm.

                                                                                    Affirmed.

ISSUED: September 9, 2019

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




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