MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                              FILED
this Memorandum Decision shall not be                           Dec 09 2016, 8:36 am

regarded as precedent or cited before any                           CLERK
court except for the purpose of establishing                    Indiana Supreme Court
                                                                   Court of Appeals
                                                                     and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEES
Andrew M. Yoder                                          Eric M. Blume
Law Office of Andrew M. Yoder                            Larry L. Barnard
Hobart, Indiana                                          Carson Boxberger LLP
                                                         Fort Wayne, Indiana
Benjamen W. Murphy
Griffith, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Kimberly Smee,                                           December 9, 2016
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         64A03-1511-CT-1904
        v.                                               Appeal from the Porter Superior
                                                         Court
Zachary Johnson, individually                            The Honorable Mary R. Harper,
and as an agent of Northern Ag                           Judge
Services, Inc., and Northern Ag                          Trial Court Cause No.
Services, Inc.,                                          64D05-1109-CT-8594
Appellees-Defendants




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 64A03-1511-CT-1904 | December 9, 2016   Page 1 of 5
[1]   Kimberly Smee appeals the trial court’s order dismissing her complaint against

      Zachary Johnson and Northern Ag Services, Inc. (Northern), for failure to

      prosecute. Finding no error, we affirm.


                                                    Facts
[2]   On September 3, 2009, a motor vehicle accident occurred between Smee and

      Johnson, who was driving a vehicle in the course of his employment with

      Northern. On September 6, 2011, Smee filed a complaint against Johnson and

      Northern, seeking compensation for injuries she allegedly sustained as a result

      of the accident. Smee attempted to serve Johnson and Northern with

      summonses and the complaint in September and October 2011, but service was

      unsuccessful.


[3]   Between May 3, 2012, and July 3, 2014, Smee’s attorney was engaged in

      settlement negotiations with a representative of the insurer for Johnson and

      Northern. There is no evidence that counsel was ever in direct contact with

      either Johnson or Northern. After negotiations broke down, Smee finally

      served Johnson on August 28, 2014, and Northern on September 17, 2014. On

      October 6, 2014, the defendants filed a motion to dismiss the complaint for

      failure to prosecute pursuant to Trial Rule 41(E). The trial court granted the

      motion on September 30, 2015, and Smee now appeals.


                                   Discussion and Decision
[4]   Smee argues that the trial court erred in dismissing the complaint for failure to

      prosecute. We will reverse a dismissal for failure to prosecute only if the trial

      Court of Appeals of Indiana | Memorandum Decision 64A03-1511-CT-1904 | December 9, 2016   Page 2 of 5
      court’s decision is against the logic and effect of the facts and circumstances

      before it. Lee v. Pugh, 811 N.E.2d 881, 884-85 (Ind. Ct. App. 2004). We will

      affirm a dismissal for failure to prosecute if there is any evidence supporting the

      trial court’s order. United Brotherhood of Carpenters & Joiners of Am. v.

      Merchandising Equip. Grp., 963 N.E.2d 602, 606 (Ind. Ct. App. 2012).


[5]   Indiana Trial Rule 41(E) provides as follows: “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.” The purpose of this rule is to ensure

      that plaintiffs will diligently pursue their claims. United Brotherhood, 963 N.E.2d

      at 606. The burden of moving the litigation is on the plaintiff. Id.


[6]   Smee acknowledges the lapse of nearly three years between the filing of the

      complaint and the dates on which she perfected service on the defendants. But

      she argues that the act of finally perfecting service constituted the resumption of

      diligent prosecution of the complaint. See State v. McClaine, 261 Ind. 60, 63, 300

      N.E.2d 342, 344 (1973) (holding that a motion to dismiss for failure to

      prosecute should be denied if plaintiff resumes diligent prosecution prior to the

      filing of the motion to dismiss). We disagree, concurring with the analysis of

      another panel of this Court on this issue:

              Full application of the McClaine rule would preclude using T.R.
              41(E) as a mechanism for dismissal when T.R. 4 service of
      Court of Appeals of Indiana | Memorandum Decision 64A03-1511-CT-1904 | December 9, 2016   Page 3 of 5
               process has not been made with due diligence. Not until
               summons is finally served does a defendant have reason to file a
               T.R. 41(E) motion. At the same time plaintiff might be deemed
               to have resumed prosecution by effecting the service, thereby
               precluding a timely T.R. 41(E) motion to dismiss. However, we
               hold the McClaine rule 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. Thus we conclude the trial
               rules require a party to exercise due diligence in securing service
               of process and the remedy for failure to use diligence is not a
               retrospective determination the statute of limitations was not
               tolled, but a motion to dismiss for failure to prosecute under T.R.
               41(E).


      Geiger & Peters, Inc. v. Am. Fletcher Nat. Bank & Trust Co., 428 N.E.2d 1279, 1283

      (Ind. Ct. App. 1981) (emphasis added). We agree with the Geiger Court’s

      analysis, and decline to apply the McClaine rule to this situation.1


[7]   Smee argues that we should not apply the Geiger analysis here because the

      defendants knew of the lawsuit. We disagree, as there is no evidence in the

      record supporting that assertion. The mere fact that Smee’s attorney was in

      touch with the defendants’ insurer in no way establishes that either Johnson or

      Northern had any knowledge of the complaint.




      1
       Smee contends that the Geiger analysis was dicta. Whether or not that is true, we believe that the analysis is
      sound and echo it here today.

      Court of Appeals of Indiana | Memorandum Decision 64A03-1511-CT-1904 | December 9, 2016             Page 4 of 5
[8]    In sum, we find that the mere act of perfecting service did not constitute a

       resumption of diligent prosecution. The trial court did not err by dismissing for

       failure to prosecute where nearly three years passed between the filing of the

       complaint and the perfection of service on the defendants.


[9]    Smee also contends, essentially, that the sixty-day timeframe in Trial Rule

       41(E) should be tolled because her attorney was involved in negotiations with

       the defendants’ insurer. We do not find this argument compelling. Our

       Supreme Court has held that while defendants may be estopped from asserting

       a timeliness defense if they induce the plaintiff to allow the statutory period to

       expire, simple openness to negotiations is insufficient. Paramo v. Edwards, 563

       N.E.2d 595, 599 (Ind. 1990). Instead, the defendant’s conduct must lull the

       plaintiff into inaction. Id.


[10]   In this case, there is no evidence that Johnson or Northern were parties to the

       negotiations or had any knowledge whatsoever that the lawsuit was pending.

       Furthermore, there is no evidence in the record that the insurer told Smee’s

       attorney that resolution was likely or imminent, nor is there evidence that the

       insurer stated it would excuse Smee’s failure to diligently attempt to perfect

       service on Johnson and Northern. Consequently, we decline to reverse on this

       basis.


[11]   The judgment of the trial court is affirmed.


       May, J., and Brown, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 64A03-1511-CT-1904 | December 9, 2016   Page 5 of 5
