Zepeda v. Cool

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
AUGUST 5, 2021
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2021 ND 146Michael Zepeda and Mindy Zepeda, Plaintiffs and Appellants
v.
Adam Cool and Mason Cool, Defendants and Appellees
No. 20200193
Appeal from the District Court of Ward County, North Central Judicial
District, the Honorable Douglas L. Mattson, Judge.
AFFIRMED.
Opinion of the Court by Jensen, Chief Justice.
Jeffrey S. Weikum, Bismarck, ND, for plaintiffs and appellants.
Samuel G. Larson, Bismarck, ND, for defendant and appellee Adam Cool.
Alyssa L. Lovas, Bismarck, ND, for defendant and appellee Mason Cool.
Zepeda v. Cool
No. 20200193
Jensen, Chief Justice.
[¶1] Michael and Mindy Zepeda appeal from a district court judgment
dismissing their claims for failure to prosecute and the denial of their post-
judgment request to alter or amend the judgment. We affirm the judgment,
concluding the court did not abuse its discretion in dismissing the Zepedas’
claims for failure to prosecute.
I
[¶2] On November 25, 2013, Michael and Mindy Zepeda commenced a
personal injury action against Adam and Mason Cool by service of summons
and complaint. The personal injury action arose from a December 2011 assault
by the Cools on Michael Zepeda resulting in Michael Zepeda sustaining
injuries.
[¶3] Over six years later, on January 7, 2020, the Zepedas filed the summons
and complaint. On February 5, 2020, the Cools filed separate motions to
dismiss for failure to prosecute. The district court granted the Cools’ motions
to dismiss for failure to prosecute after finding the Cools had been prejudiced
by the deliberate delay of the Zepedas. The court entered a judgment of
dismissal on May 18, 2020.
[¶4] On July 17, 2020, the Zepedas filed a motion for reconsideration arguing
the district court erred in dismissing the action because they appropriately
pursued their claim under the circumstances. The court denied the motion as
lacking merit after determining the request for relief under N.D.R.Civ.P. 59(j)
was untimely and there was no other sufficient basis to warrant
reconsideration.
[¶5] On appeal, the Zepedas assert the district court erred in dismissing the
action for failure to prosecute because the delay in pursuing the case was
appropriate under the circumstances. The Zepedas argue the delay was
warranted because the Cools represented they had insufficient assets upon
1
which the Zepedas could collect. They also argue an expeditious trial date
would have allowed Adam Cool to use the criminal sanctions that had been
imposed to mitigate the potential exemplary damage award. Finally, the
Zepedas argue the Cools were not prejudiced in defending against the claim by
the delay.
II
[¶6] The district court dismissed the Zepedas’ action under N.D.R.Civ.P.
41(b). “If the plaintiff fails to prosecute or to comply with these rules or a court
order, a defendant may move to dismiss the action or any claim against it.”
N.D.R.Civ.P. 41(b). “The primary purpose for dismissing an action for failure
to prosecute is to prevent unnecessary delays in the disposition of pending
cases and to avoid congestion in court calendars by disposing of cases not being
seriously prosecuted.” Ternes v. Knispel, 374 N.W.2d 879, 881 (N.D. 1985)
(citations and footnote omitted). Each case is dependent upon its own facts and
circumstances, and we recognize there is no precise rule defining what
circumstances justify dismissing a claim for failure to prosecute. Id. Before
dismissing an action for failure to prosecute under N.D.R.Civ.P. 41(b), a court
must consider several competing factors including a court’s need to manage its
docket, the public interest in expeditious resolution of litigation, and the risk
of prejudice to adverse parties from delay. Id. A court must balance these
factors against the great reluctance to impose the harsh remedy of dismissal
based upon our policy favoring disposition of cases on their merits. Id.[¶7] This Court’s review of a district court’s decision in weighing the
competing factors in assessing a motion to dismiss for lack of prosecution is
“quite deferential.” Sturdevant v. Fargo Culvert Co., 501 N.W.2d 762, 764 (N.D.
1993). We will not overturn a court’s decision to dismiss a claim for failure to
prosecute absent an abuse of discretion. Schroeder v. Praska, 512 N.W.2d 667,
667 (N.D. 1994).
[¶8] This Court has previously recognized the plaintiff has the duty to
prosecute the case, not the defendant. Sturdevant, 501 N.W.2d at 764. In
Sturdevant, at 763, the trial court dismissed an action without prejudice for
failure to prosecute after six and one-half years elapsed between the time the
2
complaint was served and the time it was filed with the court. The plaintiff
appealed the dismissal arguing the defendant failed to show there was any
prejudice resulting in the delay, and the passage of time was not a sufficient
basis to dismiss the action. Id. We upheld the dismissal concluding, in that
particular case, the passage of time alone prejudiced the defendant. Id. at 764.
We also concluded the absence of any meaningful discovery during the interim
was further prejudicial, and the defendant was not expected to incur the
expense or inconvenience of conducting discovery if the plaintiff’s inaction gave
hope or an expectation the case would never be tried. Id.
[¶9] In this case, the district court found the delay of over six years between
the service of the complaint and the subsequent filing prejudiced the Cools and
warranted dismissal of the Zepedas’ action. Based on the nature of a personal
injury action and because the case had a strong focus on medical damages, the
court found the Cools would have been in a difficult position to marshal a
defense against the Zepedas’ assessment or claimed damages from an incident
occurring over eight years prior. The court noted that the record revealed there
was initial email communication between the parties’ counsel, but the final
communication between the parties prior to the filing of the complaint in
January of 2020 occurred on January 30, 2015. The court found Adam Cool’s
attorney closed the case file and refunded his client’s remaining retainer due
to the inaction of the case in 2018, and Mason Cool was led to believe the case
was over. Moreover, the court found discovery was “virtually nonexistent”
except for a limited exchange of medical reports and a surveillance video clip
from the night of the incident. When considering whether the existence of the
surveillance video clip reduced prejudice to the Cools, the court determined
such argument failed to appreciate the case focused on medical damages. The
court stated:
Attempting to litigate this matter now would require Defendants
to marshal a defense against medical damages from an incident
which occurred eight years prior. The delay has diminished the
value of any independent medical examination Defendants may
have used to defend against Plaintiffs’ assessment or claim of
damages.
3
[¶10] The district court balanced the prejudice to the Cools against the strong
preference for resolution of claims based on the merits of the case. The court
noted a dismissal impacts the health and welfare of the victim, and the Cools’
“purported conduct in this case appears to have been repugnant, needlessly
violent, and against the public welfare.” In balancing the two policies, the court
ultimately determined the deliberate delay by the Zepedas caused an
unacceptable prejudicial impact on the Cools warranting dismissal of the
action.
[¶11] The district court rigorously weighed the competing policies before
dismissing the action for failure to prosecute. While courts should be reluctant
to dismiss an action without allowing the parties the opportunity to be heard
on the merits of the case, our review is deferential to the district court’s
balancing of the competing policies. Given this Court’s deferential review of
the district court’s decision in weighing the competing policies, we conclude the
court did not abuse its discretion in dismissing the Zepedas’ case for failure to
prosecute under the facts and circumstances of this case.
III
[¶12] The Zepedas also appeal from the order denying their post-judgment
motion for “reconsideration” citing the same reasons asserted in the appeal
from the involuntary dismissal of the action. While North Dakota law does not
formally recognize motions to reconsider, motions for reconsideration may be
treated as motions to alter or amend a judgment under N.D.R.Civ.P. 59(j), or
motions for relief from a judgment under N.D.R.Civ.P. 60(b). Ayling v. Sens,
2019 ND 114, ¶ 20, 926 N.W.2d 147, reh’g denied (July 24, 2019). A district
court’s denial of a motion for reconsideration will not be reversed on appeal
absent an abuse of discretion. Id.[¶13] The Zepedas’ motion was titled as a motion for “reconsideration,” but
they did not specify grounds upon which they relied in their motion.
Nonetheless, the district court made specific findings on both N.D.R.Civ.P.
59(j) and 60(b). In its order denying the motion for reconsideration, the court
stated the following:
4
Being fully advised in the premises, the Court determines the
Motion lacks merit. To the extent the Motion seeks relief under
N.D.R.Civ.P. 59(j), it is untimely. The Motion did not provide any
newly discovered evidence or other sufficient basis under
N.D.R.Civ.P. 59(j) or 60(b) to warrant reconsideration of the Order
Granting Defendants’ Motions to Dismiss.
We conclude the court’s reasoning is supported by the record, and its decision
was the product of a rational mental process and was not arbitrary,
unconscionable, or unreasonable. The court did not abuse its discretion in
denying the motion seeking reconsideration of the dismissal of the action.
IV
[¶14] Because we apply a deferential review of a district court’s decision in
weighing the competing policies, we conclude the court did not abuse its
discretion when dismissing the action for failure to prosecute. We also conclude
the court did not abuse its discretion in denying the Zepedas’ subsequent
request for reconsideration of the dismissal. We affirm the judgment of the
court dismissing the Zepedas’ action.
[¶15] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
5