Keisha Hollis, on behalf of herself and all others similarly situated v. Defender Security Company d/b/a Defender Direct ( 2014 )


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  • Pursuant to Ind.Appellate Rule 65(D),
    this Memorandum Decision shall not be
    regarded as precedent or cited before
    Dec 19 2014, 10:32 am
    any court except for the purpose of
    establishing the defense of res judicata,
    collateral estoppel, or the law of the case.
    ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:
    RONALD E. WELDY                                   DAVID E. WRIGHT
    Weldy & Associates                                KEVIN D. KOONS
    Indianapolis, Indiana                             Kroger, Gardis & Regas, LLP
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    KEISHA HOLLIS, on behalf of herself               )
    and all others similarly situated,                )
    )
    Appellant-Plaintiff,                       )
    )
    vs.                                )     No. 49A04-1404-PL-156
    )
    DEFENDER SECURITY COMPANY d/b/a                   )
    DEFENDER DIRECT,                                  )
    )
    Appellee-Defendant.                        )
    APPEAL FROM THE MARION SUPERIOR COURT
    The Honorable Robert R. Altice, Jr., Judge
    Cause No. 49D05-0909-PL-44580
    December 19, 2014
    MEMORANDUM DECISION - NOT FOR PUBLICATION
    BROWN, Judge
    Keisha Hollis, on behalf of herself and all others similarly situated, appeals the trial
    court’s order dismissing her action against Defender Security Company (“Defender”).
    Keisha raises three issues which we consolidate and restate as whether the trial court
    abused its discretion in dismissing her claim under Ind. Trial Rule 41(E). We affirm.
    FACTS AND PROCEDURAL HISTORY
    In September 2009, Keisha and Robert Hollis filed a complaint against Defender.1
    That same month, Attorney Ronald Weldy filed an appearance for the Hollises. On
    October 14, 2009, the Hollises filed a motion for class certification. On November 23,
    2009, Defender filed a motion to dismiss Robert’s claims, and on February 16, 2010, the
    court granted Defender’s motion.
    After seeking and obtaining permission to pursue an interlocutory appeal, Robert on
    behalf of himself and all others similarly situated appealed the trial court’s dismissal of his
    wage claims. Hollis v. Defender Sec. Co., 
    941 N.E.2d 536
    , 536-537 (Ind. Ct. App. 2011),
    trans. denied. This court concluded that the trial court properly granted Defender’s motion
    to dismiss Robert’s claims because he did not submit them to the Department of Labor as
    required by the Wage Claims Statute. 
    Id. at 540.
    On December 1, 2010, the court denied Keisha’s motion for class certification. On
    January 3, 2011, Keisha filed a motion to certify the interlocutory order for appeal. On
    February 4, 2011, the trial court denied Keisha’s motion for certification.
    1
    The record does not contain copies of a number of filings or orders including the complaint, the
    October 14, 2009 motion for class certification, the court’s denial of Keisha’s motion for class certification,
    Defender’s motion for summary judgment, and the court’s order granting in part Defender’s motion for
    summary judgment.
    2
    On January 31, 2012, Defender filed a motion for partial summary judgment. On
    March 5, 2012, Keisha filed an “Unopposed Motion to Extend Deadline to File Response
    to Defendant’s Motion for Summary Judgment” and alleged that she needed to take the
    deposition of Defender prior to responding to the motion. Appellee’s Appendix at 1. On
    March 15, 2012, the court granted Keisha’s motion to extend the deadline to May 4, 2012.
    On March 27, 2012, Defender filed a motion titled “Defendant’s Agreed First Motion to
    Continue April 16, 2012 Hearing on Defendant’s Motion for Summary Judgment” and
    requested that the court reschedule the hearing any time during or after the last week of
    May 2012. 
    Id. at 3.
    On May 4, 2012, Keisha filed a second motion to extend the deadline
    to file a response to Defender’s motion for summary judgment and alleged that the
    deposition of Defender had not been taken due to family responsibilities. On May 25,
    2012, Keisha filed another motion to extend the deadline to file a response and alleged that
    she and Defender were working on scheduling the deposition for the first two weeks of
    June. In June 2012, Keisha filed another motion to extend the deadline and continue the
    hearing and alleged that “[d]ue to the vacation schedules of counsel for Plaintiff and
    Defendant, the Rule 30(B)(6) deposition of Defendant which Plaintiff needs prior to
    responding to this Motion will not be completed until July 19th and 20th, 2012.” 
    Id. at 11.
    The court granted the motion.
    On August 29, 2012, Defender filed a motion for order of mediation. On September
    27, 2012, the court granted in part Defender’s motion for summary judgment.             On
    December 13, 2012, the court entered a jacket entry in the chronological case summary
    (“CCS”) which states: “Neither party having submitted a written request for order
    3
    appointing mediation panel per court[’]s entry of 9/27, court declines to approve
    [Defender’s] motion for order of mediation at this time. Motion may be renewed upon
    completion of discovery.” Appellant’s Appendix at 8.
    On June 28, 2013, the Indiana Supreme Court entered an order titled “Published
    Order Approving Statement of Circumstances and Conditional Agreement for Discipline”
    with respect to Attorney Weldy. In re Weldy, 
    989 N.E.2d 1252
    (Ind. 2013). The Court
    suspended Attorney Weldy from the practice of law for a period of 180 days, beginning
    August 9, 2013, with ninety days actively served and the remainder stayed subject to
    completion of at least one year of probation. 
    Id. at 1255.
    On July 17, 2013, Attorney Matthew Derringer filed an appearance for Keisha.2 On
    July 23, 2013, the Indiana Supreme Court entered an order regarding Attorney Weldy titled
    “Published Order Granting Motion to Postpone Effective Date of Suspension,” which
    stated:
    By order dated June 28, 2013, this Court entered an order suspending
    Respondent from the practice of law in this state for a period of not less than
    180 days, with 90 days actively served and the remainder stayed subject to
    one year of probation, effective August 9, 2013. On July 18, 2013,
    Respondent filed a motion to postpone the effective date of suspension for
    seven days to August 16, 2013, to accommodate a briefing schedule in a
    pending case. Being duly advised, the Court GRANTS the motion and
    postpones the effective date of Respondent’s suspension to August 16, 2013.
    In re Weldy, 
    991 N.E.2d 116
    , 116 (Ind. 2013).
    2
    The CCS indicates that an appearance was filed for “Plaintiff Hollis, Robert.” Appellant’s
    Appendix at 8. Given that Robert’s claims were previously dismissed along with the statements at the later
    hearing, it appears that the appearance was on behalf of Keisha. The CCS does not specify the name of the
    attorney, and the record does not contain a copy of the appearance. In her brief, Keisha alleges that Attorney
    Matthew Derringer filed the appearance on her behalf on July 17, 2013.
    4
    On October 23, 2013, Defender filed a motion to dismiss pursuant to Trial Rule
    41(E). Defender alleged that the only activity in the case since the court’s September 27,
    2012 order “has been the non-substantive action of the Plaintiff’s filing an appearance of
    additional counsel, Matthew Derringer, on July 17, 2013.” Appellant’s Appendix at 13.
    Defender alleged that Keisha no longer lived in Indiana and had lost interest in the action,
    some of the witnesses had left Defender’s employ, and the passage of time for witness
    testimony was prejudicial to Defender. On November 4, 2013, the court scheduled a
    hearing on the motion for January 30, 2014.
    On January 30, 2014, Keisha filed a verified opposition to Defender’s motion to
    dismiss which alleged in paragraphs n, o, and p that certain actions occurred in 2013. That
    same day, the court held a hearing. Defender’s counsel argued that the actions specified in
    paragraphs n, o, and p of Keisha’s verified opposition to Defender’s motion to dismiss
    actually occurred in 2012 and not 2013, and Attorney Weldy admitted that “it was just a
    typo.” Transcript at 7. Defender’s counsel argued that there was no follow through on the
    mediation back in 2012 because Keisha’s counsel did not know where she was or how to
    contact her, that two employees with knowledge of the case no longer were employed by
    Defender, and that Keisha had a lengthy history of being dilatory.
    Attorney Weldy stated that when Keisha was transitioning from Arizona back to
    Indiana he did not have a good phone number for her “so I think there was a period of time
    where I had reached out for her and wasn’t getting her directly.” 
    Id. at 19.
    He also stated
    that he was in communication with Keisha and “that’s not an issue.” 
    Id. He also
    mentioned
    a pending action in front of the Disciplinary Commission, that he could not “just take three
    5
    years litigation and hand it off to another attorney an [sic] expect good results,” and that
    “[a]t no point in time does it make sense for me to file a Praecipe for trial when the trial
    date could be set during the time that I’m on suspension, okay.” 
    Id. at 25-26.
    He testified
    that he asked for an extension “primarily because of a Reply Brief [that] needed to be filed
    in that Petition for Attorney’s Fees in that big federal class action . . . .” 
    Id. at 30.
    He
    further stated that he believed the next step was a motion for class certification.
    The court stated:
    Well, the Court is – certainly realizes that dismissal was a very drastic
    action for any trial court to take. And I don’t do it often, and I don’t take that
    responsibility lightly. However, this case, as [Defender’s Counsel] stated,
    the last thing of any significance that was done on this case was in September
    of 2012. So the case is 17 months, nothing has been done on the case. I just
    looked and the case was filed September the 21st of ’09. And it looks like
    the allegations occurred in 2007, this case is old. It’s not only old, but
    nothing’s been done as I stated for 17 months, so the length is concerning to
    this court. I understand the disciplinary action reasoning, but basically as
    you said here today, Mr. Weldy, they gave you an extension. I understand
    you had other cases to work on, but clearly you could have done something
    on the case and you did nothing. And the other point being that another
    attorney actually entered his appearance on this matter as well and,
    obviously, he did nothing, nor does it appear that he was given any direction
    to do anything. The degree of responsibility on the part of the plaintiff, I
    have no reason to disagree with [Defender’s Counsel]. It doesn’t sound like
    you really did either when I specifically asked you. It appears that the last
    entry in December by the Court kind of encouraging the parties to go through
    mediation didn’t occur as a result of you not knowing where your client was.
    And the prejudice to the defendant is another factor that I’m very concerned
    about. As [Defender’s Counsel] indicated here today a couple employees
    have left. Obviously, that knowledge is now gone. What makes it worse on
    – because of – on behalf of the defendant is it sounds like those employees
    left and were upper management and whatever relationship they had with
    their company was not good, so clearly the defendant’s [sic] have suffered –
    will suffer some prejudice as well. It also appears there were numerous
    extensions. The one thing too that I will note is whether or not plaintiff was
    stirred into action by the threat of dismissal, and I also will cite that as a factor
    as well, because this was set – I set this matter for hearing back on November
    6
    the 4th of 2013, is when the parties received – or is when I signed the order
    setting this matter for hearing for today’s date. And it wasn’t until today that
    I got, this morning by fax, your Motion in Opposition, which was later filed
    by hard copy and then once it comes in front of me, after I’d reviewed it and
    thinking these dates were 2013, they’re all 2012 dates and that’s paragraphs
    n, o, p, and that’s significant because if it were 2013 I wouldn’t even listen
    to argument, but it’s been a long time that absolutely nothing has been done
    on this case. So, as I state before, I don’t do this lightly but I am going to
    grant Defendant’s Motion to Dismiss.
    
    Id. at 33-36.
    On January 30, 2014, the court entered an order of dismissal pursuant to Ind. Trial
    Rule 41(E). On March 3, 2014, Keisha filed a verified motion to reinstate and motion to
    correct error and alleged that the motion was made pursuant to Ind. Trial Rules 59 and 60.
    On March 10, 2014, the court entered an order denying Keisha’s motion to reinstate and
    motion to correct errors.
    DISCUSSION
    The issue is whether the trial court abused its discretion in dismissing Keisha’s claim
    under Indiana Trial Rule 41(E). Ind. Trial Rule 41(E) provides in part:
    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.
    We 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. An abuse of discretion occurs if the decision of the trial court
    7
    is against the logic and effect of the facts and circumstances before it. 
    Id. We will
    affirm
    if there is any evidence that supports the trial court’s decision. 
    Id. The purpose
    of Trial Rule 41(E) is “to ensure that plaintiffs will diligently pursue
    their claims” and to provide “an enforcement mechanism whereby a defendant, or the court,
    can force a recalcitrant plaintiff to push his case to resolution.” 
    Id. (citing Benton
    v. Moore,
    
    622 N.E.2d 1002
    , 1006 (Ind. Ct. App. 1993), reh’g denied). “The burden of moving the
    litigation is upon the plaintiff, not the court. 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 within the court’s
    power to do so.” 
    Id. (citing Benton
    , 622 N.E.2d at 1006 (quotation omitted)). “Courts
    cannot be asked to carry cases on their dockets indefinitely and the rights of the adverse
    party should also be considered. [The defendant] should not be left with a lawsuit hanging
    over his head indefinitely.” 
    Id. (citing Hill
    v. Duckworth, 
    679 N.E.2d 938
    , 939-940 (Ind.
    Ct. App. 1997) (quotation omitted)).
    We generally balance several factors when determining whether a trial court abused
    its discretion in dismissing a case for failure to prosecute. Office Environments, Inc. v.
    Lake States Ins. Co., 
    833 N.E.2d 489
    , 494 (Ind. Ct. App. 2005); 
    Belcaster, 785 N.E.2d at 1167
    . These factors include: (1) the length of the delay; (2) the reason for the delay; (3)
    the degree of the plaintiff’s personal responsibility; (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
    8
    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
    (citing Lee v. Friedman,
    
    637 N.E.2d 1318
    , 1320 (Ind. Ct. App. 1994)). “The weight any particular factor has in a
    particular case depends on the facts of that case.” 
    Id. (quoting Lee,
    637 N.E.2d at 1320).
    “However, 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.”
    Id. (citing 
    Lee, 637 N.E.2d at 1320
    ). 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. Turner v. Franklin
    Cnty. Four Wheelers Inc., 
    889 N.E.2d 903
    , 905 (Ind. Ct. App. 2008).
    Keisha appears to argue that the trial court erred when it found that only allegedly
    substantive acts of prosecution are relevant to making a determination as to the merits of
    dismissal for lack of prosecution under Trial Rule 41(E). She contends that action in
    furtherance of the prosecution of this matter took place in December 2012 when the parties
    discussed potentially mediating this matter and in May or June 2013 when the parties
    discussed settlement. She argues that she had a very good excuse for the period of
    inactivity, “namely, the 90-day suspension of proposed Class Counsel.” Appellant’s Brief
    at 9. She also asserts that Attorney Weldy was in contact with Hollis in December 2012
    or January 2013, that she and the proposed class did nothing wrong, and that Defender was
    9
    vague about the testimony that was allegedly lost. Defender argues that the trial court did
    not abuse its discretion in dismissing Keisha’s complaint.
    We initially note that the trial court observed that it “certainly realizes that dismissal
    was a very drastic action for any trial court to take. And I don’t do it often, and I don’t
    take that responsibility lightly.” Transcript at 33. With respect to the length of the delay,
    we observe that Defender filed a motion to dismiss pursuant to Trial Rule 41(E) on October
    23, 2013, more than four years after the filing of Keisha’s complaint. “The most significant
    period of time for purposes of the issue before us is, of course, the period immediately
    preceding the issuance of the show-cause order.” Baker Machinery, Inc. v. Superior
    Canopy Corp., 
    883 N.E.2d 818
    , 824 (Ind. Ct. App. 2008), trans. denied. The CCS does not
    reveal any activity during the ninety-eight days between the filing of the appearance by
    Attorney Derringer for Keisha on July 17, 2013, and the filing of the motion to dismiss by
    Defender on October 23, 2013. In her motion to reinstate, Keisha’s counsel alleged that
    “[s]ometime in May or June 2013 – counsel for the parties have a brief telephone
    conversation regarding settlement and the undersigned informs counsel for [Defender] that
    [Keisha] intends to file a new Motion for Class Certification.” Appellant’s Appendix at
    25. We note that no such motion was filed by the time Defender filed its motion to dismiss
    four or five months later in October 2013. While Keisha alleged in her motion to reinstate
    that the court and counsel for the parties had telephonic discussions regarding appointing
    a mediator, the only entry in the CCS for December 2012 states: “Jacket Entry: Neither
    party having submitted a written request for order appointing mediation panel per court[’]s
    entry of 9/27, court declines to approve defendant[’]s motion for order of mediation at this
    10
    time. Motion may be renewed upon completion of discovery.” 
    Id. at 8.
    Further, Defender
    was the party that filed the motion for an order of mediation. The next prior event occurred
    on September 27, 2012, when the court approved an order granting, in part, Defender’s
    motion for summary judgment.
    As for the reason for the delay, the degree of the plaintiff’s personal responsibility,
    and the degree to which the plaintiff will be charged for the acts of her attorney, we note
    that Keisha’s counsel was unable to contact her for some period of time. When the court
    asked whether he lost contact with Keisha, her counsel stated:
    There was a – I think when she was transitioning from Arizona back to
    Indiana, I had – I didn’t have a good phone number for her and so I think
    there was a period of time where I had reached out for her and wasn’t getting
    her directly. And, you know, since then I’ve picked up her mom’s number,
    so if there’s any point in time where, you know, there’s a – I can’t reach her
    and I’ve tried her two or three times and I’m not hearing back from her, I
    now can go through her mother and her mother can always get in touch with
    her and get back to her. I mean, I’ve been in communications. I know she’s
    been back in Indiana for at least a year and, you know, we’ve talked just in –
    I think we talked either December or very early January. So, you know, I’m
    in communication with her, that’s not an issue. And she wants to, obviously,
    conclude the case.
    Transcript at 18-19. Keisha asserts that the reason for the delay was that Attorney Weldy
    was suspended from the practice of law for ninety days. However, Attorney Derringer
    filed an appearance for Keisha on July 17, 2013, and did not take further action.
    As for prejudice, Defender alleged in its motion to dismiss that some of the
    individuals it intended to call as witnesses had left its employ, including John Corliss and
    Robert Gallup, and that the passage of time and its impact upon witness memory and the
    lack of Keisha’s presence and ability to be located prejudiced Defender. During the
    11
    hearing, Defender’s counsel testified that two of the former employees that had knowledge
    of the incident were no longer employees, that they were “upper management people” and
    that he did not believe that “the relations are good.” 
    Id. at 15-16.
    With respect to the presence or absence of a lengthy history of having deliberately
    proceeded in a dilatory fashion, we observe that Keisha filed multiple motions requesting
    continuances or extensions of deadlines in March, May, and June of 2012. We also observe
    that the trial court stated: “It appears that the last entry in December by the Court kind of
    encouraging the parties to go through mediation didn’t occur as a result of you not knowing
    where your client was.” 
    Id. at 34.
    Lastly, we cannot say that the factor of 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, weighs in favor of finding an abuse of discretion.
    Under the circumstances, we cannot say that the trial court abused its discretion
    when it dismissed Keisha’s complaint. See Smith v. Harris, 
    861 N.E.2d 384
    , 387 (Ind. Ct.
    App. 2007) (holding that the trial court did not abuse its discretion by dismissing plaintiff’s
    case under Trial Rule 41(E) where plaintiff offered no good reason for his failure to
    prosecute his case diligently, bore the responsibility for the inactivity, and was prompted
    to act again only because of the threat of dismissal of his lawsuit), trans. denied.
    CONCLUSION
    For the foregoing reasons, we affirm the trial court’s dismissal of Keisha’s
    complaint.
    Affirmed.
    BAILEY, J., and ROBB, J., concur.
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