KENA CORP v. CAIN (2025)

MEMORANDUM DECISION

Case Summary

[1] Kena Corp. (“Kena”) appeals the trial court's involuntary dismissal of its complaint against Elizabeth Cain pursuant to Indiana Trial Rule 41(E). Although Kena argues that the trial court abused its discretion by dismissing its complaint, we disagree and, accordingly, affirm.

Issue

[2] Kena raises one issue, which we restate as whether the trial court abused its discretion by dismissing its complaint pursuant to Indiana Trial Rule 41(E).

Facts

[3] Cain retained the law firm of Hollingsworth and Zivitz, P.C., to represent her in a dissolution of marriage action. In April 2020, the law firm filed a complaint against Cain for an unpaid bill pursuant to Cain's agreement with the law firm, and the trial court granted default judgment against Cain. In September 2020, Cain filed a pro se motion to set aside the default judgment, which the trial court granted. At some point, Kena acquired the alleged debt from the law firm and, in January 2021, filed a motion to change the plaintiff's name in the action against Cain. The trial court granted Kena's motion.

[4] In April 2023, Kena issued an alias summons to Cain, and an attorney entered his appearance on Cain's behalf. After an October 24, 2023 pretrial conference, the trial court entered a pretrial order and an agreed case management entry setting the following deadlines:

1. Preliminary witness list exchanged by March 1, 2024, and final witness list exchanged fourteen days before trial (October 14, 2024).

2. Discovery completed by June 10, 2024.

3. Mediation completed on or before ninety days prior to trial (July 30, 2024).

4. Dispositive motions filed by June 28, 2024.

5. Any motions in limine and all pretrial motions filed fourteen days prior to the final pretrial conference (October 4, 2024).

6. Proposed preliminary instructions filed fourteen days prior to the final pretrial conference (October 4, 2024).

7. Proposed final instructions and verdict forms filed seven days prior to the first day of trial (October 21, 2024).

8. Final pretrial conference set for October 18, 2024.

9. Jury trial set for October 28, 2024.

See Appellant's App. Vol. II pp. 112-14.

[5] On August 23, 2024, Cain filed a motion for involuntary dismissal pursuant to Indiana Trial Rule 41(E). Cain alleged that she served her preliminary witness and exhibit list on Kena's counsel on March 15, 2024, after receiving a fourteen-day extension from Kena's counsel. According to Cain, however, Kena did not serve its preliminary witness list, served no discovery, and “has done absolutely nothing to prosecute its case.” Id. at 117. Cain's counsel alleged that he had “heard nothing from counsel for [Kena] since November 14, 2023 ․” Id. (emphasis in original). On August 26, 2024, the trial court set the matter for a hearing on September 18, 2024, and provided notice to all counsel of record. On September 5, 2024, the trial court rescheduled the hearing for October 2, 2024, due to the judge's unavailability, and the trial court again provided notice to all counsel of record.

[6] Kena's counsel failed to appear for the October 2 hearing, and the trial court expressed concern that Cain's August 23 motion was not properly served on all counsel of record. As a result, Cain filed a second motion for involuntary dismissal pursuant to Indiana Trial Rule 41(E) and served all counsel of record. On October 4, 2024, the trial court continued the final pretrial conference and jury trial and set the matter for a hearing on the motion to dismiss for December 4, 2024.

[7] On December 3, 2024, Kena filed a response to Cain's motion to dismiss. At the December 4 hearing, the trial court noted that Kena had not submitted a preliminary or final witness list, any motions in limine or other pretrial motions, or any preliminary instructions. On December 6, 2024, the trial court granted Cain's motion to dismiss pursuant to Trial Rule 41(E). The trial court found “[Kena] has not shown sufficient cause to justify [Kena's] failure to prosecute this matter.” Id. at 24. The trial court then dismissed the matter with prejudice. Kena now appeals.

Discussion and Decision

[8] Kena challenges the trial court's dismissal of its action against Cain with prejudice pursuant to Indiana Trial Rule 41(E). “We review the trial court's dismissal under Rule 41(E) for an abuse of discretion.” Foster v. First Merchs. Bank, N.A., 235 N.E.3d 1251, 1254 (Ind. 2024). “A court abuses its discretion if its decision either ‘misinterprets the law or clearly contravenes the logic and effect of the facts and circumstances before the court.’ ” Id. (quoting Smith v. Franklin Twp. Cmty. Sch. Corp., 151 N.E.3d 271, 273 (Ind. 2020)).

[9] Such dismissals are “extreme remedies that should be granted only under limited circumstances.” Id. at 1256. 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.

(emphasis added). “A dismissal for failure to prosecute pursuant to Indiana Trial Rule 41(E) is a dismissal with prejudice unless the trial court provides otherwise.” Lee v. Pugh, 811 N.E.2d 881, 884 n.2 (Ind. Ct. App. 2004).

[10] A plaintiff's case, thus, may be dismissed under Rule 41(E) for either: (1) failing to comply with the trial rules; or (2) failing to take action in the matter for sixty days. “The purpose of the rule is ‘to ensure that plaintiffs will diligently pursue their claims.’ ” Foster, 235 N.E.3d at 1255 (quoting Belcaster v. Miller, 785 N.E.2d 1164, 1167 (Ind. Ct. App. 2003), trans. denied). “As the one filing a complaint, the plaintiff bears the primary burden of moving a case along to achieve speedy justice.” Id. at 1254.

[11] “[A] Rule 41(E) motion is timely only if it is filed ‘after the sixty-day period has expired and before the plaintiff resumes prosecution.’ ” Id. (quoting State v. McClaine, 300 N.E.2d 342, 344 (Ind. 1973)). Courts generally “balance several factors when determining whether a trial court abused its discretion in dismissing a case for failure to prosecute.” 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 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. Lee v. Friedman, 637 N.E.2d 1318, 1320 (Ind. Ct. App. 1994). “The weight any particular factor has in a particular case appears to depend upon the facts of that case.” Id. 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.

Id.¹

[12] Here, it is undisputed that Kena took no action to prosecute its case against Cain between November 2023 and the time Cain filed her second motion for involuntary dismissal in October 2024. Accordingly, Kena took no action in the matter for more than sixty days. Pursuant to Foster, Cain's motion was timely because it was filed after the sixty-day period expired and before Kena resumed prosecution.² Kena's lengthy period of inaction, lack of an excuse for the delay, and continued lack of attention to the matter even after the trial court's August 2024 order setting a hearing on the first motion to dismiss support the trial court's dismissal of the matter.

[13] Kena, however, argues its conduct is excused because it was not required to engage in discovery and, once the jury trial was scheduled, “[a]ll [Kena] could do at that point was wait.” Appellant's Br. p. 10. According to Kena, “once a jury trial had been scheduled, the trial court was without discretion to entertain much less grant a dismissal based on T.R. 41(E).” Appellant's Reply Br. p. 7. Kena contends that “[a]ny lengthy period of delay in this proceeding was solely based on the trial court's congested calendar and in no way by any dilatory or deliberate conduct on the part of [Kena].” Id. at 5.

[14] In support of its argument, Kena relies upon Benton v. Moore, 622 N.E.2d 1002 (Ind. Ct. App. 1993), which held:

[W]hen a plaintiff has requested the trial court to set a trial date, and a trial date has been set, the trial court is without discretion to grant a T.R. 41(E) motion to dismiss which is based on a sixty day period of inaction which occurs between the date of the request for trial setting and the date set for trial.

Id. at 1006. The Benton Court also noted, however, that Trial Rule 41(E) allows dismissal for a “ ‘failure to follow these rules․’ ” Id. (quoting T.R. 41(E)). “In addition to violations of the trial rules themselves, this provision applies equally well to orders of the court entered pursuant to the trial rules, ․ including pre-trial orders issued under Ind. Trial Rule 16.” Id. Between the date of the request for trial setting and the date set for trial, the plaintiff in Benton had failed to comply with the trial court's pretrial order by failing to file witness and exhibit lists and settlement demands in a timely manner. The Court, thus, held that “the trial court's dismissal of Bentons’ case for failure to comply with the pre-trial order was within its discretion.” Id. at 1007.

[15] Relying on Benton, Kena argues that the trial court could not dismiss the matter for inaction between the setting of the trial date and the trial date. Kena, however, ignores the rest of the holding in Benton, which affirmed the dismissal due to the plaintiffs’ failure to comply with the pretrial order. Similarly, here, Kena failed to comply with deadlines established by the trial court's pretrial order. After the establishment of case management deadlines, Kena failed to exchange preliminary witness lists, conduct mediation, or perform any discovery.³ Even after the trial court set the matter for a hearing on Cain's first motion to dismiss and served counsel with the order setting the hearing date, Kena was not prodded into action and failed to file motions in limine, any other pretrial motions, or preliminary jury instructions.⁴ As in Benton, Kena failed to comply with the trial court's pretrial orders. Accordingly, even if the trial court's dismissal under the failure to take action for sixty days prong of Trial Rule 41(E) was improper, the trial court did not abuse its discretion by dismissing Kena's action against Cain for Kena's failure to comply with the trial court's pretrial orders.

Conclusion

[16] The trial court did not abuse its discretion by involuntarily dismissing Kena's action against Cain pursuant to Trial Rule 41(E). Accordingly, we affirm.

[17] Affirmed.

FOOTNOTES

1.   Kena argues that the trial court did not make findings on each factor, but Kena cites no authority requiring the trial court to do so.

2.   In fact, Kena took no action in the matter until it filed its response to Cain's second motion to dismiss on December 3, 2024.

3.   We recognize that Kena was not required to perform discovery or file any pretrial motions.

4.   Kena argues on appeal that Cain also failed to meet the case management deadlines, except for filing her preliminary witness list. We again note that the plaintiff, not the defendant, bears the burden of moving the litigation forward. See Bank of Am., N.A. v. Cong.-Jones, 122 N.E.3d 859, 863 (Ind. Ct. App. 2019) (“The plaintiff bears the burden of moving the litigation ․”).

Tavitas, Judge.

Vaidik, J., and Foley, J., concur.