A decision by the court usually directing a party to do or not do some act, such as an order to exclude certain evidence. Id. 0000002428 00000 n Parents may ask for a custody arrangement that they believe is in the best interest of their child. A court action to determine the identity of the father of a child, Perjury. As there does seem to be at least some evidence of specific prejudice, the finding of prejudice is not clearly erroneous and does not reflect an abuse of discretion. (Emphasis added. While we do not encourage trial courts to assess the merits of a claim in ruling on a motion to dismiss for want of prosecution on poorly developed records, we do not think the trial court here abused its discretion in considering, among other relevant factors, the fact of questionable liability of one defendant. 0000007836 00000 n In determining whether a complaint should be dismissed, the issue is a matter of law. Grand Communities, Ltd. v. Stepner, 170 S.W.3d 411, 417 (Ky.App. 24 Am.Jur.2d Dismissal, Discontinuance and Nonsuit 63 (2009) (footnotes omitted). endstream endobj 25 0 obj <>stream After filing the motion to set the case for trial, the plaintiffs also filed a response to Karen's motion to dismiss. They noted they provided authorizations to obtain health records and also stated, Defendants could seek to obtain this information through subpoena or inform counsel of their problem and discuss solutions. They also pointed to their efforts to obtain mediation and their attempts to resolve insurance issues in arguing that their lack of recently filed pleadings or discovery requests did not prove lack of prosecution as merely because another party notices the deposition does not mean there is a lack of prosecuting one's case if it is moving forward.. Apparently, Brian did not respond to the interrogatories and request for production of documents for approximately six months.2 Other than Brian's appearing for his deposition, Plaintiffs Brian and Amy again did nothing of record during the 2004 calendar year and through the first few months of 2005. Brian JAROSZEWSKI and Amy Page-Jaroszewski, Appellants, v. Charles F. FLEGE and Karen Jaroszewski, Appellees. Check your court papers to see if you have completed the signatures, have the proper notarization, and have the correct county name and case number. A sworn statement of income, expenses, property (called assets) and debts (called liabilities). Notice shall be given to each attorney of record of every case in which no pretrial step has been taken within the last year, that the case will be dismissed in thirty days for want of prosecution except for good cause shown. hb```b``e`c`/ad@ A;&V=Q``. Extent of Party's Personal Responsibility for Delay. 2004). We have not been asked to determine whether the trial court erred by not granting the plaintiffs' motion to set for trial. Give you an opinion about what will happen if you bring your case to court. endstream endobj 21 0 obj <>stream Thank you. But under the facts of this case, we do not think it was reversible error for the trial court to consider questionable liability of one defendant as one factor to consider or to infer possible lack of merit from inadequately explained delay. Given the multiple instances of delay and lack of evidence of the plaintiffs actively seeking to resolve their case, we cannot conclude that the trial court abused its discretion in granting the motion to dismiss for lack of prosecution. It also found the lack of a motion to compel responses to requests for information on prior injuries not dispositive, noting its view that counsel requesting discovery should not have to file a motion to compel to obtain discovery provided for through the civil rules. They must be answered in writing under oath within a specified time (usually 30 days). Grounds Asserted motion to dismiss may be made on any of the following grounds: Lack of subject matter jurisdiction. Legally forcing a tenant out of rented property. Rule 15.02 - Amendments to conform to the evidence. In their response, they alleged they had been cooperating with the Defendants and had not failed to answer discovery or respond to requests for the same. They stated their counsel had been diligently trying to secure requested information and argued no motion to compel had been filed for lack of cooperation; rather, the Motion to Compel filed concerned whether the defense medical exam would occur in Cincinnati or New York. See Scarborough, 747 F.2d at 875 (The meritoriousness of the claim for this purpose [decisions on whether a case must be dismissed for lack of prosecution under federal rules] must be evaluated on the basis of the facial validity of the pleadings and not on summary judgment standards.). Russell G. Vineyard, Note, Dismissal with Prejudice for Failure to Prosecute: Visiting the Sins of the Attorney Upon the Client, 22 Ga. L.Rev. A defendant in a civil case has no less of a duty to move his own case forward than does his criminal law counterpart. By viewing the posts, contents and other information on this website, the reader understands there is no attorney-client relationship between the reader and the website/blog publisher and that it should not be used as a substitute for legal advice from a licensed professional attorney. 9, As our case law has long held, these necessarily fact-specific determinations are left to the sound discretion of the trial court; and reversal of these determinations is warranted only where the trial court has abused its discretion.10. A document prepared by an attorney or party and filed with the court. 0000010028 00000 n So, in a typical case, the meritorious nature of a plaintiff's claim may be difficult to assess and of minimal value because even a meritorious case may be dismissed under CR 41.02 if the totality of the circumstances shows that the plaintiff is not actively prosecuting the case. By viewing the posts, contents and other information on this website, the reader understands there is no attorney-client relationship between the reader and the website/blog publisher and that it should not be used as a substitute for legal advice from a licensed professional attorney. And the trial court was free to reject the plaintiffs' explanation that they had already been planning to seek a trial date because the record shows that a motion to dismiss was actually filed first, and the trial court was not required to accept plaintiffs' assertions concerning their intent.23. A pretrial Motion to Dismiss Criminal challenges the legality of the criminal complaint or indictment or the fairness of the trial. In family law, the right to make decisions about the child. endstream endobj 23 0 obj <>stream Motivated by the need for a clear written record of the facts and circumstances that moved the trial court to dismiss a case for lack of prosecution, the Court of Appeals developed precedent beginning with Ward that suggests or requires the trial court to analyze certain listed factors. %%EOF Flege instead wanted to take Brian's deposition and schedule a defense medical examination. 0000049919 00000 n We held very recently in Miller v. Commonwealth, 283 S.W.3d 690, 702 (Ky.2009), quoting the United States Supreme Court in Barker v. Wingo:33. Motion to Dismiss means a motion requesting that a grievance or appeal be dismissed because it does not state a claim for which the CSRO provides a remedy, or is in some other way legally insufficient. Appellants cite Little v. Yeutter, 984 F.2d 160, 162 (6th Cir.1993) for the proposition that [a]bsent a showing of a clear record of delay or contumacious conduct, the order of dismissal is an abuse of discretion, such that the district court is limited to lesser sanctions designed to achieve compliance. We note that federal case law construing federal rules (even those similar to our state court rules) does not control how we construe our state court rules. In fact, while analyzing the factors listed in Ward upon remand, the trial court also raised concerns not specifically addressed in Ward, such as looking at whether a party took affirmative action or merely responded to the other side's requests and demands. endstream endobj 18 0 obj <>stream The courts decision or jurys decision on issues of fact. Action. 0000003003 00000 n 407 U.S. 514, 92 S.Ct. After discussing some of the considerations listed in Ward, the Court of Appeals ultimately determined that the trial court did not abuse its discretion in dismissing the case under CR 41.02(1) for lack of prosecution. This is well-established by both the Kentucky Rules of Civil Procedure and every court that has addressed the issue. 41(b), are (1) to protect the defendant from the prejudice of being a defendant in a lawsuit for a protracted period (including monetary and psychological costs, as well as problems developing one's defense where delay creates loss of or difficulty obtaining evidence); and (2) to preserve the integrity of the judicial system by encouraging quick resolution of cases, disposing of inactive cases [that] clog the calendar and sanctioning misuse or abuse of the legal system.22. hb```"f eaf7&3waK9Npy-oIlU Pari-Mutuel Clerks Union of Kentucky, Local 541, SEIU, AFL-CIO v. Kentucky Jockey Club, 551 S.W.2d 801, 803 (Ky. 1977). Protective Order. This case raises interesting questions about what constitutes prosecution of a civil lawsuit and when a trial court may properly dismiss a case for lack of prosecution. 33. Individuals who represent themselves in court cases without the assistance of an attorney are called self-represented litigants. But the trial court did specifically note the absence of medical records requested through discovery and not obtained due to the length of time or inability to access them [,] which seems to be substantial evidence of specified prejudice. Seizing a persons property or assets to hold it to pay or satisfy a judgment. motion to dismiss, and a motion to dismiss is not a responsive pleading. Copyright 2023, Thomson Reuters. Rule 12.05 - Motion for more definite statement. Modification. 0000006787 00000 n 26] It too was returned unexecuted. Indiana. MOTION TO DISMISS Comes the Plaintiff/Respondent, Commonwealth of Kentucky ex rel. Judgment. @D9!f[k{a~AE`9xXKKfPW*%X$_lt]yPzOyLEQ|Mam*- From: Akins v. The News Enterprise, COA Published Decision, 1/28/2011. 0000066281 00000 n In determining whether the trial court abused its discretion in dismissing a case under CR 41.02, appellate courts must be able to assess whether a trial court considered all relevant facts and circumstances. 0000005455 00000 n In doing so, it stated that those plaintiffs who fail to make a record of their activities risk having their cases dismissed for lack of prosecution. Conversely, this precedent is also misunderstood to suggest that the trial court's dismissal order is unassailable on appeal if it recites and attempts to analyze each of the six listed factors. 0000071990 00000 n 0000005641 00000 n A formal request to the court in a case. Here, the relatively few discovery requests made and the plaintiffs' pattern of delay in responding to these requests support the trial court's findings of dilatoriness on the part of plaintiffs. Drug Court. If you need help with a civil legal matter and cannot afford an attorney, there are resources available to assist you.TheKentucky Access to Justice Commissionand Kentucky'scivil legal aidprogramsprovide answers to common legal questions and offer self-help forms, guides and other tools atkyjustice.org. 195, 204-05 (1987). See, also Carruthers v.Edwards, COA, Published, 8/12/2012: CR 12.02(f) sets forth the standard for dismissing a complaint for failure to state a claim. Certainly, not all of counsel's work in pursuit of resolution of the case makes its way into the official record of a case. The proper use and handling of these legal forms is important. The court must be able to exercise authority over the people involved and over the type of case. 9. Direct Examination. Defendants' motion was styled as a "motion to dismiss/motion for summary judgment." DN 72. To cancel or rescind a court order. Attachment. Rather, to rule properly on a motion to dismiss for lack of prosecution, the trial court must assess all factors relevant to that particular case, which might include some or all factors listed in Ward and may include other factors.11. Rule 12.01 - When presented. As for the third listed Ward factor, whether the attorney's conduct was willful and in bad faith, the trial court's finding is confusing because the trial court states that plaintiff's attorney's conduct was willful and in bad faith as evidenced by the delay in procuring information on Brian's prior injuries. 2022 Kentucky Court of Justice. In the case at hand, the application of Ward is law of the case because the Court of Appeals remanded it for consideration of these factors on the appeal of the initial dismissal; and discretionary review was not sought from the opinion of the Court of Appeals vacating and remanding the initial dismissal.21. The trial court's order briefly found a lack of sufficient effort to prosecute the case over the preceding four years without reasonable explanation: The Court believes that this is the very type of case anticipated by the Rule in which there has been almost a complete absence of effort to prosecute the case on behalf of Plaintiffs during the four (4) years since it was filed. The person or entity that must respond to a lawsuit. There is no right to an attorney in most civil matters. that support ones position. As for the second factor listed in Ward, whether plaintiffs were dilatory,25 the trial court noted their failure to initiate activity of record in the case and noted that all of their court filings after 2001 were merely responsive to the defendants' discovery requests, rather than affirmative, proactive filings. As such, it is virtually impossible for this court to determine whether the dismissal was based solely on a single dilatory act or whether the trial court made its determination after considering the relevant factors set forth in Ward.). A change to an existing order or judgment. The plaintiffs then appealed the dismissal to the Court of Appeals. This Motion to Dismiss Criminal puts legal issues before the judge that may end the case before it goes to the jury to decide whether the defendant committed the crime (a factual issue). To agree with or rule in favor of the partys request. Plaintiffs' Lack of Violation of Court Orders and Insurance Coverage Issues are Relevant Considerations But Did Not Mandate Denial of Motion to Dismiss for Lack of Prosecution. xref Accordingly, we find ourselves hesitant to affirm or reverse the trial court because the record is unclear as to whether the Ward factors were properly considered or even considered at all. PROCEDURAL HISTORY On October 25, 2018, Edward Hirst filed a verified complaint in the United States District Court for the Western District of Weather. illable forms are not compatible with the Firefox web browser. Statements made by a witness or party under oath. You can find contact information for all 120 Offices of Circuit Court Clerk by scrolling down to Find a Court/Circuit Court Clerk by County. Guardian ad Litem (GAL). Rule 12.06 - Motion to strike. Garnishment. Can also mean disrupting court (being loud or disrespectful). The trial court found the fifth factor, prejudice, weighed in favor of dismissal. A person who testifies to what he or she saw, heard or did.. Looking for some images inside the Fayette Courthouse built in 1898. Docket. Similar to a complaint. Service. Foreclosure. Prosecution Entails Active Attempts to Resolve the Case, Recognizing that Resolution Could Take Different Forms. 18. [Record No. Looking for some images inside the Fayette Courthouse built in 1898. B. Although Brian and Amy claim that the trial court did not properly consider the facts of Brian's home incarceration and a medical authorization for Flege to obtain Brian's medical records directly from the medical providers in assessing their personal responsibility for this matter, we note that they do not affirmatively allege that they had no way of obtaining the medical information for the whole period of delay because of Brian's incarceration,24 nor do they address whether despite any medical authorization, access to the medical records might simply be barred because of the age of the records by that point. endstream endobj 22 0 obj <>stream Given the clear evidence of delay in providing medical information and lack of compelling explanations to justify shifting responsibility to others for the delay, we find no reversible error in the trial court's consideration of this factor. 0000059266 00000 n 22 - Kentucky Practice Series [Print & Westlaw] Sample motions and citations to support or oppose the following actions: motion to quash, motion to dismiss, motion to strike, motion for judgment on pleadings, summary judgment, and dismissal motions. Any written document in which the signer swears under oath before a notary public or someone authorized to take oaths that the statements in the document are true. Explicit consideration of each individual factor listed in Ward is not required, although we encourage trial courts to address any factors listed in Ward that are relevant for consideration in that particular case. Usually a uniformed deputy sheriff or officer in a courthouse to control security. While we recognize that prosecution may take many forms, we also recognize a trial court's broad discretion to determine whether dismissal for lack of prosecution is appropriate under the unique factual circumstances of each case. [United States Code], Section 362(a)(1) 8b (6) would seem to stay any action in the [Kentucky civil action]. The notice stated that the trial court would be informed when the bankruptcy stay was lifted. Kentucky Civil Procedure - Small Claims - Motions State: Kentucky Control #: KY-023-SC Instant Download Buy now Available formats: Adobe PDF Free Preview Description Related Forms How to Guide Free Preview Pro Se Motion Template Kentucky Motion Summary Free Info All forms provided by US Legal Forms, the nations leading legal forms publisher.
