                                                                        FILED
                                                                   Feb 14 2020, 6:42 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEES
Matthew Kroes                                              Daniyal M. Habib
The Marc Lopez Law Firm                                    Office of Corporation Counsel
Indianapolis, Indiana                                      Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Mahamud Sharif,                                            February 14, 2020
Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                           19A-CT-1701
        v.                                                 Appeal from the Marion Superior
                                                           Court
Brandon Cooper, City of                                    The Honorable Patrick Dietrick,
Indianapolis, and Indianapolis                             Judge
Metropolitan Police Department,                            Trial Court Cause No.
Appellees-Defendants.                                      49D12-1803-CT-11386




Riley, Judge.




Court of Appeals of Indiana | Opinion 19A-CT-1701 | Feburary 14, 2020                       Page 1 of 10
                                 STATEMENT OF THE CASE
[1]   Appellant-Plaintiff, Mahamud Sharif (Sharif), appeals the trial court’s dismissal

      of his Complaint against Appellees-Defendants, Brandon Cooper (Cooper), the

      City of Indianapolis, and the Indianapolis Metropolitan Police Department

      (IMPD) (Collectively, the City), pursuant to Indiana Trial Rule 41(E).


[2]   We reverse and remand for further proceedings.


                                                      ISSUE
[3]   Sharif presents this court with one issue on appeal, which we restate as:

      Whether the trial court abused its discretion by dismissing Sharif’s Complaint

      pursuant to Indiana Trial Rule 41(E).


                       FACTS AND PROCEDURAL HISTORY
[4]   On April 7, 2016, Sharif was driving westbound on the exit ramp from

      Interstate 70 onto Interstate 65 northbound. At the same time, Cooper, an

      employee of the IMPD, was driving directly behind the vehicle operated by

      Sharif. Shortly thereafter, Cooper collided with Sharif’s vehicle, resulting in

      personal injuries to Sharif that required medical attention.


[5]   On March 22, 2018, after filing a tort claim notice, Sharif filed his Complaint

      against the City. Approximately one year later, on March 20, 2019, Sharif

      perfected service on the City. On April 17, 2019, the City filed its Answer, as

      well as a motion to dismiss Sharif’s Complaint. On June 26, 2019, after a




      Court of Appeals of Indiana | Opinion 19A-CT-1701 | Feburary 14, 2020    Page 2 of 10
      hearing, the trial court granted the City’s motion to dismiss pursuant to Indiana

      Trial Rule 41(E).


[6]   Sharif now appeals. Additional facts will be provided if necessary.


                               DISCUSSION AND DECISION
[7]   Sharif contends that the trial court abused its discretion by granting the City’s

      Indiana Trial Rule 41(E) motion to dismiss for failure to prosecute. 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 discretion is against

      the logic and effect of the facts and circumstances before it. Belcaster v. Miller,

      785 N.E.2d 1164, 1167 (Ind. Ct. App. 2003), trans. denied. Indiana Trial Rule

      41(E) provides, in pertinent part:


              [W]hen 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.


[8]   “The purpose of this rule 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. The burden of moving the litigation forward is

      upon the plaintiff, not the court. Id. “It is not the duty of the trial court to

      contact counsel and urge or require him to go to trial, even though it would be


      Court of Appeals of Indiana | Opinion 19A-CT-1701 | Feburary 14, 2020         Page 3 of 10
       within the court’s power to do so.” Id. “Courts cannot be asked to carry cases

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

       considered. [The adverse party] should not be left with a lawsuit hanging over

       his head indefinitely.” Id.


[9]    The unusual posture of this case involves the situation in which the plaintiff

       filed a tort claim notice, alerting the defendants that a lawsuit was imminent, as

       well as a Complaint with the trial court yet failed to perfect service on the City

       until a year later. It is established that “the complaining party has the burden of

       using due diligence to secure service of process.” Geiger and Peters, Inc., v. Am.

       Fletcher Nat. Bank & Trust Co., 428 N.E.2d 1279, 1283 (Ind. 1981). If the person

       seeking service fails without cause for sixty days or more to provide the clerk

       with the required summons for issuance or with other information necessary to

       effectuate service, that person has failed to exercise due diligence in securing

       service of process. Id. Thus, at first glance, Indiana Trial Rule 41(E) “is an

       adequate mechanism for dismissing a cause of action in which the complaint is

       timely filed but service of summons is not perfected for an unreasonable length

       of time without just cause.” Id.


[10]   However, in State v. McClaine, 300 N.E.2d 342, 344 (Ind. 1973), our supreme

       court held that a motion to dismiss for want of prosecution should not be

       granted if plaintiff resumes diligent prosecution of his claim prior to defendant

       filing a T.R. 41(E) motion to dismiss. “That is to say, the defendant must file

       his motion after the sixty-day period has expired and before the plaintiff

       resumes prosecution.” Id. at 344. Nevertheless, clarifying the McClaine holding

       Court of Appeals of Indiana | Opinion 19A-CT-1701 | Feburary 14, 2020      Page 4 of 10
       in Geiger, our supreme court specified that “the McClaine rule [is] inapplicable

       when a cause of action is filed but summons is not served because of undue

       delay and lack of diligence without cause. In such a case, a party may timely

       move for a dismissal under T.R. 41(E) after prosecution has been resumed. To

       hold otherwise would be inherently unfair to the party who has no knowledge

       of the pending claim.” Geiger, 428 N.E.2d at 1283 (emphasis added). Likewise,

       here, the McClaine rule is inapplicable as Sharif filed the Complaint, but omitted

       to perfect service by sending out the summons. Although he resumed

       prosecution prior to the City filing the motion to dismiss, a notice of tort claim

       alone is not sufficient to impose knowledge on the City that an action is

       pending as a tort claim notice is merely an indication that a cause of action

       might be imminent.


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

       dismiss a case for failure to prosecute: (1) the length of 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; (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. Belcaster, 785 N.E.2d at 1167. “The weight any

       particular factor has in a particular case appears to depend upon the facts of that


       Court of Appeals of Indiana | Opinion 19A-CT-1701 | Feburary 14, 2020       Page 5 of 10
       case.” Id. 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).


[12]   Applying these nine factors to the case before us, we first note that “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.”

       Deutsche Bank Nat. Tr. Co. v. Harris, 985 N.E.2d 804, 814 (Ind. Ct. App. 2013).

       Although there is no bright line rule indicating exactly how long of a delay

       justifies dismissal, it would appear from a jurisprudential review that a one-year

       delay is on the excessive side. See, e.g., Petrovski v. Neiswinger, 85 N.E.3d 922,

       925 (Ind. Ct. App. 2017) (although a period of twenty months was deemed a

       long time, this factor was only slightly in favor of dismissal because the party

       “did not know about the lawsuit during this time because he had not been

       served.”); Belcaster, 785 N.E.2d at 1168 (where a ten-month delay was deemed

       unreasonable); Smith v. Harris, 861 N.E.2d 384, 385 (Ind. Ct. App. 2007) (a five-

       month delay was found excessive). As in Petrovski, a twelve-month delay is a

       lengthy period of time but as the City had not been actually served with the

       summons, they “did not have a lawsuit ‘hanging over [their] head’” and

       therefore the delay only factors slightly in favor of dismissal of Sharif’s suit.

       Petrovski, 85 N.E.3d at 925.




       Court of Appeals of Indiana | Opinion 19A-CT-1701 | Feburary 14, 2020       Page 6 of 10
[13]   The only reason Sharif has presented for the delay in perfecting the summons is

       a personal, family reason on the part of his counsel. This factor points to

       favoring dismissal of the case. While there is no personal liability to Sharif, “a

       client is bound by his attorney’s actions and inactions.” Id. Thus, factors 3 and

       4 weigh in favor of dismissal. But the remaining factors, 5 to 9, favor allowing

       Sharif to prosecute his Complaint. Although the City claims that there is “some

       prejudice weighing in favor of dismissal,” the City fails to cite to any evidence

       that prejudice exists, such as the unavailability of a specific witness. (Appellee’s

       Br. p. 15); see, e.g., id. (where the lack of specific prejudicial evidence was

       counted against dismissal of the claim). There is no evidence that Sharif has

       deliberately proceeded in a dilatory fashion; rather, testimony reveals that once

       Sharif’s counsel discovered his omission in perfecting the service, he proceeded

       without delay. Only after service was perfected, did the City file a motion to

       dismiss. Finally, even though no lesser sanctions are identified, we note that

       there is a clear preference for deciding this case on the merits; and rather than

       being forced to act by a threat of dismissal, Sharif’s counsel served the City once

       he discovered the lack of service.


[14]   In sum, the weight any factor has depends upon the facts of the case. Given the

       unique posture of this case where the Complaint was filed but service was not

       perfected until a year later, there was no prejudice to the City, and the factual

       background which involved personal injuries that required medical attention,

       we find that the extreme remedy of dismissal is not warranted. Accordingly, we




       Court of Appeals of Indiana | Opinion 19A-CT-1701 | Feburary 14, 2020        Page 7 of 10
       conclude that the trial court abused its discretion in granting the City’s Trial

       Rule 41(E) motion to dismiss for failure to prosecute.


                                              CONCLUSION
[15]   Based on the foregoing, we conclude that the trial court abused its discretion by

       granting the City’s motion to dismiss pursuant to Indiana Trial Rule 41(E).


[16]   Reversed and remanded for further proceedings.


[17]   Baker, J. concurs


[18]   Brown, J. dissents with separate opinion




       Court of Appeals of Indiana | Opinion 19A-CT-1701 | Feburary 14, 2020      Page 8 of 10
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Mahamud Sharif,                                            Court of Appeals Case No.
                                                                  19A-CT-1701
       Appellant-Plaintiff,

               v.

       Brandon Cooper, City of
       Indianapolis, and Indianapolis
       Metropolitan Police Department,
       Appellees-Defendants.




       Brown, Judge, dissenting.


[19]   I respectfully dissent and would affirm the trial court’s dismissal of the lawsuit

       in which, after filing a complaint, the plaintiff took no action for twelve months

       in furtherance of its prosecution, substantive or otherwise. This Court will

       reverse a Trial Rule 41(E) dismissal for failure to prosecute only in the event of

       a clear abuse of discretion. Belcaster v. Miller, 785 N.E.2d 1164, 1167 (Ind. Ct.

       App. 2003), trans. denied. We will affirm if any evidence supports the court’s

       decision. See id. Sharif does not dispute that he failed to serve the initial

       summons and complaint per the requirements set forth in Ind. Trial Rule 86.

       The reason provided by his counsel for postponing the perfection of service,

       given the circumstances, does not justify the delay. Furthermore, by the time

       Court of Appeals of Indiana | Opinion 19A-CT-1701 | Feburary 14, 2020                  Page 9 of 10
       the City received the complaint, three years had lapsed from the date of loss, a

       fact which the court noted. Accordingly, I would find the prejudice factor

       enunciated in Belcaster and all of the Belcaster factors taken together favor

       dismissal. As there is evidence to support the court’s decision and there was no

       clear abuse of discretion, I would affirm the trial court.


[20]




       Court of Appeals of Indiana | Opinion 19A-CT-1701 | Feburary 14, 2020     Page 10 of 10
