Kefer Brown v. Liberty Mutual Insurance ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
KEFER BROWN, UNPUBLISHED
December 20, 2016
Plaintiff-Appellant,
and
PROFESSIONAL CARE TRANSPORTATION,
INC., and NORTHLAND RADIOLOGY, INC.,
Intervening Plaintiffs
v No. 328783
Wayne Circuit Court
LIBERTY MUTUAL INSURANCE, LC No. 14-008926-NF
Defendant-Appellee.
Before: GADOLA, P.J., and FORT HOOD and RIORDAN, JJ.
PER CURIAM.
Plaintiff appeals as of right the order of the trial court dismissing his complaint pursuant
to MCR 2.502. We affirm.
This case arises from a motor vehicle accident that allegedly occurred on February 20,
2012, in which plaintiff claims he was injured. Plaintiff filed this action against defendant on
July 11, 2014, claiming that he was insured under the provisions of a no-fault policy issued by
defendant, but that defendant had refused to provide plaintiff with personal injury protection
benefits. According to defendant, it was never properly served with the complaint and
consequently never filed an answer or otherwise appeared in the action.
The trial court entered a scheduling order on October 10, 2014. By checking a box on the
order, the trial court directed plaintiff to serve the scheduling order on all other parties in the
action. Plaintiff, however, did not serve the scheduling order as required. Instead, plaintiff filed
a motion for entry of default judgment on December 30, 2014, requesting that the trial court
enter a default judgment in light of defendant’s failure to plead or appear in the matter. On
March 12, 2015, the trial court issued a notice that the case would be dismissed for no progress.
Plaintiff did not respond to the notice. The trial court thereafter dismissed the case without
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prejudice by order dated June 12, 2015, stating that the case was dismissed due to plaintiff’s
counsel’s failure to comply with the trial court’s October 10, 2014 scheduling order.
Seventeen days later, plaintiff moved to reinstate the action and for entry of a default
judgment. In the motion and accompanying brief, plaintiff did not argue that there was good
cause to reinstate the action. At the motion hearing, the trial court asked plaintiff’s counsel why
the case should be reinstated, but plaintiff’s counsel stated, “I have no compelling reasons, Your
Honor.” The trial court denied the motion to reinstate the action.
Plaintiff argues on appeal that the trial court abused its discretion when it denied the
motion to reinstate because there was good cause for reinstating his case. We review a trial
court’s decision concerning a motion to reinstate an action for an abuse of discretion. Wickings v
Arctic Enterprises, Inc, 244 Mich App 125, 138; 624 NW2d 197 (2001). The abuse of discretion
standard acknowledges that in some circumstances, there is more than one reasonable and
principled outcome. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006).
An abuse of discretion occurs when the decision results in an outcome that falls outside of the
range of principled outcomes. Woodard v Custer, 476 Mich 545, 557; 719 NW2d 842 (2006).
Pursuant to MCR 2.502(A)(1), a trial court may dismiss a case due to the parties’ failure
to make progress. Wickings, 244 Mich App at 138. The trial court may reinstate an action that it
dismissed for lack of progress if the moving party demonstrates good cause to reinstate the
action. MCR 2.502(C). When determining whether good cause to reinstate an action has been
demonstrated, this Court has suggested consideration of the following factors: (1) whether the
dismissal for lack of progress was based upon a procedural or technical error, (2) the moving
party’s diligence before dismissal, (3) the moving party’s justification for the lack of progress
before dismissal, (4) the moving party’s diligence in attempting to settle the case or a prompt
motion to reinstate the action, and (5) potential prejudice to the nonmovant if the action were to
be reinstated. Wickings, 244 Mich App at 142. This list is not exhaustive, the factors are not
necessarily applicable in every case, and the trial court has wide discretion in its decision. Id. at
142 n 28, 145.
In this case, plaintiff argues that there is good cause1 for reinstating plaintiff’s case
because plaintiff’s failure to serve the scheduling order was an inadvertent procedural error.
Plaintiff argues that the box checked on the scheduling order was small and difficult to see and
therefore plaintiff inadvertently failed to notice that plaintiff was directed to serve the order on
the other parties. Under factor one of the analysis suggested in Wickings, this argument is
somewhat persuasive. In this case, however, plaintiff also failed to respond to the trial court’s
notice warning that dismissal was imminent by investigating and correcting the reason for the
imminent dismissal, making this argument less persuasive. We also note, considering factors
two and three, that plaintiff had not otherwise diligently pursued the action, other than by
1
Defendant argues that this issue is unpreserved because plaintiff failed to make these arguments
before the trial court. We note that although plaintiff did not present these specific arguments,
plaintiff did move before the trial court to reinstate the case and therefore the issue of whether
the trial court abused its discretion in denying the motion is preserved for review by this Court.
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seeking a default judgment, and did not provide the trial court with a persuasive reason for the
lack of diligence other than plaintiff’s failure to note that he had been ordered to serve the
scheduling order.2 With regard to factor four, we note that plaintiff did move promptly to
reinstate the action within 17 days of the trial court’s order dismissing the action. However,
plaintiff did not include any justification for why he had failed to serve the scheduling order or
why the case should be reinstated. At the hearing, plaintiff’s counsel again failed to give the
court any reason why this case should be reinstated.
Lastly, plaintiff argues that under the final Wickings factor defendant will not be
prejudiced if the case is reinstated because the delay was relatively short. It is unclear from the
record whether defendant would be prejudiced if this case were reinstated. However, even if we
are to assume that this last factor favors reinstatement, it is not apparent that the trial court
abused its discretion given that the other factors support the trial court’s decision to deny the
motion. We cannot say that the trial court’s decision to deny reinstatement falls outside the
range of principled outcomes and therefore we find no abuse of discretion.
Affirmed.
/s/ Michael F. Gadola
/s/ Karen M. Fort Hood
/s/ Michael J. Riordan
2
With respect to plaintiff’s failure to note that he was obligated to serve the scheduling order on
defendant because the check box requiring this was not readily apparent, our review of the record
suggests otherwise. The requirement to serve the scheduling order on defendant is included in
the first of just three numbered sections of the one-page order, with the words “plaintiff is
ordered” appearing in that section in capital boldface lettering. Contrary to plaintiff’s assertion,
it would be difficult for anyone who gave the order even cursory review to miss this obligation.
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