Mahamud Sharif v. Brandon Cooper, City of Indianapolis, and Indianapolis Metropolitan Police Department ( 2020 )

FILED
Feb 14 2020, 6:42 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEES
Matthew Kroes Daniyal M. Habib
The Marc Lopez Law Firm Office of Corporation Counsel
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Mahamud Sharif, February 14, 2020
Appellant-Plaintiff, Court of Appeals Case No.
19A-CT-1701
v. Appeal from the Marion Superior
Court
Brandon Cooper, City of The Honorable Patrick Dietrick,
Indianapolis, and Indianapolis Judge
Metropolitan Police Department, Trial Court Cause No.
Appellees-Defendants. 49D12-1803-CT-11386
Riley, Judge.
Court of Appeals of Indiana | Opinion 19A-CT-1701 | Feburary 14, 2020 Page 1 of 10
STATEMENT OF THE CASE
[1] Appellant-Plaintiff, Mahamud Sharif (Sharif), appeals the trial court’s dismissal
of his Complaint against Appellees-Defendants, Brandon Cooper (Cooper), the
City of Indianapolis, and the Indianapolis Metropolitan Police Department
(IMPD) (Collectively, the City), pursuant to Indiana Trial Rule 41(E).
[2] We reverse and remand for further proceedings.
ISSUE
[3] Sharif presents this court with one issue on appeal, which we restate as:
Whether the trial court abused its discretion by dismissing Sharif’s Complaint
pursuant to Indiana Trial Rule 41(E).
FACTS AND PROCEDURAL HISTORY
[4] On April 7, 2016, Sharif was driving westbound on the exit ramp from
Interstate 70 onto Interstate 65 northbound. At the same time, Cooper, an
employee of the IMPD, was driving directly behind the vehicle operated by
Sharif. Shortly thereafter, Cooper collided with Sharif’s vehicle, resulting in
personal injuries to Sharif that required medical attention.
[5] On March 22, 2018, after filing a tort claim notice, Sharif filed his Complaint
against the City. Approximately one year later, on March 20, 2019, Sharif
perfected service on the City. On April 17, 2019, the City filed its Answer, as
well as a motion to dismiss Sharif’s Complaint. On June 26, 2019, after a
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hearing, the trial court granted the City’s motion to dismiss pursuant to Indiana
Trial Rule 41(E).
[6] Sharif now appeals. Additional facts will be provided if necessary.
DISCUSSION AND DECISION
[7] Sharif contends that the trial court abused its discretion by granting the City’s
Indiana Trial Rule 41(E) motion to dismiss for failure to prosecute. We will
reverse a Trial Rule 41(E) dismissal for failure to prosecute only in the event of
a clear abuse of discretion, which occurs if the trial court’s discretion is against
the logic and effect of the facts and circumstances before it. Belcaster v. Miller,
785 N.E.2d 1164, 1167 (Ind. Ct. App. 2003), trans. denied. Indiana Trial Rule
41(E) provides, in pertinent part:
[W]hen 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.
[8] “The purpose of this rule is to ensure that plaintiffs will diligently pursue their
claims. The rule provides an enforcement mechanism whereby a defendant, or
the court, can force a recalcitrant plaintiff to push his case to resolution.”
Belcaster, 785 N.E.2d at 1167. The burden of moving the litigation forward is
upon the plaintiff, not the court. Id. “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
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within the court’s power to do so.” Id. “Courts cannot be asked to carry cases
on their dockets indefinitely and the rights of the adverse party should also be
considered. [The adverse party] should not be left with a lawsuit hanging over
his head indefinitely.” Id.[9] The unusual posture of this case involves the situation in which the plaintiff
filed a tort claim notice, alerting the defendants that a lawsuit was imminent, as
well as a Complaint with the trial court yet failed to perfect service on the City
until a year later. It is established that “the complaining party has the burden of
using due diligence to secure service of process.” Geiger and Peters, Inc., v. Am.
Fletcher Nat. Bank & Trust Co., 428 N.E.2d 1279, 1283 (Ind. 1981). If the person
seeking service fails without cause for sixty days or more to provide the clerk
with the required summons for issuance or with other information necessary to
effectuate service, that person has failed to exercise due diligence in securing
service of process. Id. Thus, at first glance, Indiana Trial Rule 41(E) “is an
adequate mechanism for dismissing a cause of action in which the complaint is
timely filed but service of summons is not perfected for an unreasonable length
of time without just cause.” Id.[10] However, in State v. McClaine, 300 N.E.2d 342, 344 (Ind. 1973), our supreme
court held that a motion to dismiss for want of prosecution should not be
granted if plaintiff resumes diligent prosecution of his claim prior to defendant
filing a T.R. 41(E) motion to dismiss. “That is to say, the defendant must file
his motion after the sixty-day period has expired and before the plaintiff
resumes prosecution.” Id. at 344. Nevertheless, clarifying the McClaine holding
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in Geiger, our supreme court specified that “the McClaine rule [is] inapplicable
when a cause of action is filed but summons is not served because of undue
delay and lack of diligence without cause. In such a case, a party may timely
move for a dismissal under T.R. 41(E) after prosecution has been resumed. To
hold otherwise would be inherently unfair to the party who has no knowledge
of the pending claim.” Geiger, 428 N.E.2d at 1283 (emphasis added). Likewise,
here, the McClaine rule is inapplicable as Sharif filed the Complaint, but omitted
to perfect service by sending out the summons. Although he resumed
prosecution prior to the City filing the motion to dismiss, a notice of tort claim
alone is not sufficient to impose knowledge on the City that an action is
pending as a tort claim notice is merely an indication that a cause of action
might be imminent.
[11] In Indiana, courts must balance nine factors when determining whether to
dismiss a case for failure to prosecute: (1) the length of 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; (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. Belcaster, 785 N.E.2d at 1167. “The weight any
particular factor has in a particular case appears to depend upon the facts of that
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case.” Id. Although Indiana does not require trial courts to impose lesser
sanctions before applying the ultimate sanction of dismissal, we view dismissals
with disfavor, and dismissals are considered extreme remedies that should be
granted only under limited circumstances. Caruthers v. State, 58 N.E.3d 207,
211 (Ind. Ct. App. 2016).
[12] Applying these nine factors to the case before us, we first note that “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.”
Deutsche Bank Nat. Tr. Co. v. Harris, 985 N.E.2d 804, 814 (Ind. Ct. App. 2013).
Although there is no bright line rule indicating exactly how long of a delay
justifies dismissal, it would appear from a jurisprudential review that a one-year
delay is on the excessive side. See, e.g., Petrovski v. Neiswinger, 85 N.E.3d 922,
925 (Ind. Ct. App. 2017) (although a period of twenty months was deemed a
long time, this factor was only slightly in favor of dismissal because the party
“did not know about the lawsuit during this time because he had not been
served.”); Belcaster, 785 N.E.2d at 1168 (where a ten-month delay was deemed
unreasonable); Smith v. Harris, 861 N.E.2d 384, 385 (Ind. Ct. App. 2007) (a five-
month delay was found excessive). As in Petrovski, a twelve-month delay is a
lengthy period of time but as the City had not been actually served with the
summons, they “did not have a lawsuit ‘hanging over [their] head’” and
therefore the delay only factors slightly in favor of dismissal of Sharif’s suit.
Petrovski, 85 N.E.3d at 925.
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[13] The only reason Sharif has presented for the delay in perfecting the summons is
a personal, family reason on the part of his counsel. This factor points to
favoring dismissal of the case. While there is no personal liability to Sharif, “a
client is bound by his attorney’s actions and inactions.” Id. Thus, factors 3 and
4 weigh in favor of dismissal. But the remaining factors, 5 to 9, favor allowing
Sharif to prosecute his Complaint. Although the City claims that there is “some
prejudice weighing in favor of dismissal,” the City fails to cite to any evidence
that prejudice exists, such as the unavailability of a specific witness. (Appellee’s
Br. p. 15); see, e.g., id. (where the lack of specific prejudicial evidence was
counted against dismissal of the claim). There is no evidence that Sharif has
deliberately proceeded in a dilatory fashion; rather, testimony reveals that once
Sharif’s counsel discovered his omission in perfecting the service, he proceeded
without delay. Only after service was perfected, did the City file a motion to
dismiss. Finally, even though no lesser sanctions are identified, we note that
there is a clear preference for deciding this case on the merits; and rather than
being forced to act by a threat of dismissal, Sharif’s counsel served the City once
he discovered the lack of service.
[14] In sum, the weight any factor has depends upon the facts of the case. Given the
unique posture of this case where the Complaint was filed but service was not
perfected until a year later, there was no prejudice to the City, and the factual
background which involved personal injuries that required medical attention,
we find that the extreme remedy of dismissal is not warranted. Accordingly, we
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conclude that the trial court abused its discretion in granting the City’s Trial
Rule 41(E) motion to dismiss for failure to prosecute.
CONCLUSION
[15] Based on the foregoing, we conclude that the trial court abused its discretion by
granting the City’s motion to dismiss pursuant to Indiana Trial Rule 41(E).
[16] Reversed and remanded for further proceedings.
[17] Baker, J. concurs
[18] Brown, J. dissents with separate opinion
Court of Appeals of Indiana | Opinion 19A-CT-1701 | Feburary 14, 2020 Page 8 of 10
IN THE
COURT OF APPEALS OF INDIANA
Mahamud Sharif, Court of Appeals Case No.
19A-CT-1701
Appellant-Plaintiff,
v.
Brandon Cooper, City of
Indianapolis, and Indianapolis
Metropolitan Police Department,
Appellees-Defendants.
Brown, Judge, dissenting.
[19] I respectfully dissent and would affirm the trial court’s dismissal of the lawsuit
in which, after filing a complaint, the plaintiff took no action for twelve months
in furtherance of its prosecution, substantive or otherwise. This Court 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. We will affirm if any evidence supports the court’s
decision. See id. Sharif does not dispute that he failed to serve the initial
summons and complaint per the requirements set forth in Ind. Trial Rule 86.
The reason provided by his counsel for postponing the perfection of service,
given the circumstances, does not justify the delay. Furthermore, by the time
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the City received the complaint, three years had lapsed from the date of loss, a
fact which the court noted. Accordingly, I would find the prejudice factor
enunciated in Belcaster and all of the Belcaster factors taken together favor
dismissal. As there is evidence to support the court’s decision and there was no
clear abuse of discretion, I would affirm the trial court.
[20]
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