Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                                    May 28 2014, 9:47 am
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.

ATTORNEYS FOR APPELLANTS:                           ATTORNEYS FOR APPELLEE
                                                    CHRYSLER GROUP LLC:
THOMAS A. CLEMENTS
Law Offices of Thomas A. Clements                   BRIAN W. BELL
Merrillville, Indiana                               ANDREW J. ALBRIGHT
                                                    Swanson, Martin & Bell, LLP
DAVID SCOTT                                         Chicago, Illinois
Louisville, Kentucky
                                                    ATTORNEYS FOR APPELLEE GRIEGER
                                                    MOTOR SALES, INC.:

                                                    JENNIFER E. DAVIS
                                                    COURT L. FARRELL
                                                    Bruce P. Clark & Associates
                                                    St. John, Indiana

                               IN THE
                     COURT OF APPEALS OF INDIANA
RACHEL M. SWANEY and ERIC SWANEY,                   )
                                                    )
       Appellants-Plaintiffs,                       )
                                                    )
               vs.                                  )      No. 64A03-1401-CT-25
                                                    )
CHRYSLER GROUP LLC and                              )
GRIEGER’S MOTOR SALES, INC.,                        )
                                                    )
       Appellees-Defendants.                        )

                     APPEAL FROM THE PORTER SUPERIOR COURT
                          The Honorable William E. Alexa, Judge
                            Cause No. 64D02-1112-CT-11776

                                           May 28, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge
        Rachel M. Swaney and Eric Swaney (together, “the Swaneys”) appeal from the trial

court’s order dismissing their complaint against Chrysler Group, LLC and Grieger’s Motor

Sales, Inc. (together, “Chrysler”).1 The Swaneys raise the following restated issue for our

review: whether the trial court abused its discretion when it dismissed their complaint for

failure to prosecute pursuant to Indiana Trial Rule 41(E).

        We reverse and remand.

                           FACTS AND PROCEDURAL HISTORY

        On December 7, 2011, the Swaneys filed a complaint against Chrysler alleging that,

on September 5, 2010, the brakes in the Swaneys’ 2005 Chrysler Pacifica (“the Pacifica”)

failed to respond when Rachel approached an intersection, causing the Pacifica to become

involved in a collision with other vehicles. The Swaneys contended that defects in the

braking system and design of the Pacifica caused Rachel serious and permanent injuries.

At the time the complaint was filed, the Swaneys were represented by attorney Kenneth B.

Elwood.

        On August 3, 2012, Chrysler moved for, and was granted, a protective order

precluding the Swaneys or anyone acting on their behalf from moving, testing, inspecting,

or examining the Pacifica without notice to, or a stipulation from, Chrysler. On May 10,

2013, Elwood filed a motion to withdraw his appearance on behalf of the Swaneys, to

which the Swaneys consented, and the trial court granted the withdrawal on May 14, 2013.

The Swaneys were given thirty days, or until June 13, 2013, to retain new counsel. On



        1
         Although Grieger’s Motor Sales, Inc. did not file a separate brief, it did file a motion to join in
Chrysler Group, LLC’s Appellee’s Brief. We will, therefore, refer to the appellees jointly as Chrysler.

                                                     2
June 12, 2013, the Swaneys filed a motion for additional time to retain counsel, and the

trial court granted this motion, allowing the Swaneys until July 12, 2013 to retain new

counsel. No new counsel appeared for the Swaneys by July 12.

       On July 16, 2013, Chrysler filed a motion requesting that the trial court set a case

management conference and also filed discovery requests, including requests for

admissions and interrogatories. The trial court set a case management conference for

August, 15, 2013. The Swaneys did not receive the trial court order setting the date for the

case management conference and, therefore, failed to appear at the conference, at which

the trial court, sua sponte, set a Trial Rule 41(E) dismissal hearing for October 17, 2012.

The Swaneys also did not answer Chrysler’s requests for admissions within thirty days,

which deemed those matters admitted. On September 6, 2013, Chrysler filed its motion to

dismiss pursuant to Trial Rule 41(E), in which it argued that the Swaneys had failed to

prosecute their case for three months since their attorney’s withdrawal and that the

Swaneys had not responded to Chrysler’s request for admissions, thus establishing an

absence of liability for Chrysler. The trial court granted the motion and entered an order

of dismissal on September 10, 2013.

       On October 15, 2013, attorneys Tom Clements and David Scott each filed

appearances on behalf of the Swaneys. On that same date, the trial court vacated the earlier

order of dismissal, but the October 17 hearing remained set. Sometime prior to the hearing,

the Swaneys’ attorneys removed the Pacifica from storage in Illinois and transported it to

Kentucky for further examination in violation of the protective order. At the October 17

hearing, the Swaneys’ counsel appeared and indicated their willingness to promptly and

                                             3
diligently prosecute the case. The trial court ordered that the Pacifica be returned to an

agreed-upon location within fourteen days and that the parties file briefs on issues related

to Chrysler’s Trial Rule 41(E) motion to dismiss. The trial court set the case for further

hearing on the motion to dismiss for December 19, 2013.

       The Swaneys’ counsel fully complied with the trial court’s order by returning the

Pacifica to the prior inspection location and by briefing the requested issues. In their

response to Chrysler’s motion to dismiss, the Swaneys argued that Rachel’s medical

condition made it very difficult for her to consult with and obtain new counsel after Elwood

withdrew on May 14, 2013. Appellants’ App. at 50. They also asserted that, although they

received a copy of Chrysler’s motion requesting a case management conference, the

attached order did not include the date of the conference. Id. The Swaneys’ attorneys also

filed a motion for leave to withdraw the admissions that had been entered as a matter of

law when the Swaneys did not respond; that motion was granted. At the December 19

hearing, the trial court dismissed the Swaneys’ complaint for failure to prosecute pursuant

to Trial Rule 41(E). The Swaneys now appeal.

                            DISCUSSION AND DECISION

       We will reverse a trial court’s dismissal of a cause of action under Indiana Trial

Rule 41(E) only upon an abuse of discretion. Ind. Dep’t of Natural Res. v. Ritz, 945 N.E.2d

209, 213 (Ind. Ct. App. 2011), trans. denied. An abuse of discretion occurs where the trial

court’s decision is against the logic and effect of the facts and circumstances. Id. We will

affirm the trial court if any evidence supports the trial court’s decision. Id. “However, ‘we

view dismissals with disfavor, and dismissals are considered extreme remedies that should

                                             4
be granted only under limited circumstances.’” Id. (quoting Rueth Dev. Co. v. Muenich,

816 N.E.2d 880, 884 (Ind. Ct. App. 2004) (citing Beemer v. Elskens, 677 N.E.2d 1117,

1119 (Ind. Ct. App. 1997), trans. denied), trans. denied).

       The Swaneys argue that the trial court abused its discretion when it dismissed their

complaint for failure to prosecute under Trial Rule 41(E). They assert that delay in this

case “was relatively slight and was due to Rachel’s inability to quickly find a new attorney

willing to take over [the] case.” Appellants’ Br. at 10. The Swaneys allege that, because

their case involves a products liability claim and complicated issues defended by a

sophisticated defendant and will be expensive and time consuming to pursue, it is not

unreasonable that there was a delay attributable to finding new counsel. Further, the

Swaneys contend that the case will be diligently prosecuted as evidenced by the filings and

steps taken by their new counsel since taking over the case. Lastly, the Swaneys claim that

dismissal is an extreme remedy that should not have been ordered because of the prejudice

they would suffer.

       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 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.

A trial court’s authority to dismiss a case pursuant to Trial Rule 41(E) “stems not only from

considerations of fairness for defendants, but is also rooted in the administrative discretion

                                               5
necessary for a trial court to effectively conduct its business.” Baker Mach., Inc. v.

Superior Canopy Corp., 883 N.E.2d 818, 823 (Ind. Ct. App. 2008), trans. denied. The

purpose of this rule is to ensure that plaintiffs will diligently pursue their claims. Olson v.

Alick’s Drugs, Inc., 863 N.E.2d 314, 319 (Ind. Ct. App. 2007), trans. denied. The plaintiff,

and not the trial court, bears the burden of moving the litigation. Belcaster v. Miller, 785

N.E.2d 1164, 1167 (Ind. Ct. App. 2003), trans. denied. A trial court 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 its head

indefinitely. Id.

       In determining whether a trial court abused its discretion in dismissing an action for

failure to prosecute, we consider several factors, including:

       (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. The weight any
       particular factor has in a particular case depends on the facts of that case.

Ritz, 945 N.E.2d at 214-15 (citing Olson, 863 N.E.2d at 319-20; Lee v. Pugh, 811 N.E.2d

881, 885 (Ind. Ct. App. 2004)).

       In the present case, the delay at issue was approximately five months, from May 14,

2013, when Elwood withdrew as the Swaneys’ counsel, until October 15, 2013, when

Clements and Scott entered their appearances for the Swaneys. The reason for the delay

                                              6
was due to withdrawal of the Swaneys’ attorney and their inability to quickly find a new

attorney willing to take over their case. The Swaneys’ case involves a products liability

claim, and such claims involve complicated issues and are expensive and time consuming

for plaintiff’s counsel to pursue. Before his withdrawal, the Swaneys’ previous counsel

had advanced $11,178.92 of his own funds in the investigation and pursuit of the Swaneys’

claims.

       Additionally, the Swaneys’ new counsel, Scott, represented to the trial court that the

case would be diligently prosecuted and set out in detail in his affidavit what discovery and

medical investigation he intended to immediately pursue in the case. Scott took immediate

steps to make it possible to proceed with the case, including filing a motion and

memorandum for leave to withdraw the admissions previously deemed admitted by

operation of law, which was granted by the trial court on November 4, 2013. This allowed

the Swaneys to deny the admissions and proceed with the case. Scott also sought leave to

file an amended complaint to clarify the legal issues of the products liability claim.

       Further, Chrysler has not shown any resulting prejudice from the delay. Chrysler

claims that it has been forced to expend resources briefing issues, filing documents, and

performing actions because of the Swaneys’ failure to timely prosecute this case. However,

Chrysler has not demonstrated how this expense of resources differs from the normal

burdens of defending any lawsuit or that the delay has caused it an inability to properly

prepare its case and pursue its defense. On the other hand, the Swaneys would suffer

substantial prejudice if their complaint is dismissed. Rachel sustained serious life-altering

injuries in the collision at issue, and is still suffering from various medical issues. Her only

                                               7
chance for redress is the opportunity to pursue and prove her allegations on the merits of

the case. Indiana Courts have a preference for deciding cases on their merits. Rueth Dev.,

Co., 816 N.E.2d at 885. We also note that the trial court did not attempt to impose any

lesser sanctions against the Swaneys before imposing the greater sanction of dismissal.

       “Although Indiana does not require trial courts to impose lesser sanctions before

applying the ultimate sanctions of default judgment or dismissal, we view dismissals with

disfavor, and dismissals are considered extreme remedies that should be granted only under

limited circumstances.” Am. Family Ins. Co. ex rel. Shafer v. Beazer Homes Ind., LLP,

929 N.E.2d 853, 857 (Ind. Ct. App. 2010) (citing Turner v. Franklin Cnty. Four Wheelers

Inc., 889 N.E.2d 903, 905 (Ind. Ct. App. 2008)). Under the circumstances of the present

case, the delay in prosecution was not lengthy and was caused by the withdrawal of the

Swaneys’ attorney. New counsel has been obtained by the Swaneys and has represented

to the trial court that the case will be diligently prosecuted going forward. Chrysler has not

shown any resulting prejudice from the delay; however, the Swaneys would suffer

significant prejudice if the dismissal of their complaint is sustained. Dismissal under these

circumstances is inconsistent with Indiana’s “oft-stated policy of having cases decided on

their merits whenever possible.” Deutsche Bank Nat’l Trust Co. v. Harris, 985 N.E.2d

804, 815 (Ind. Ct. App. 2013). We conclude that the trial court abused its discretion when

it dismissed the Swaneys’ complaint pursuant to Trial Rule 41(E). We, therefore, reverse

the trial court’s order dismissing the Swaneys’ complaint and remand for further

proceedings. Reversed and remanded.

MAY, J., and BAILEY, J., concur.

                                              8
