Jaroszewski v. Flege

Decision Date29 October 2009
Docket NumberNo. 2008-SC-000112-DG.,2008-SC-000112-DG.
Citation297 S.W.3d 24
PartiesBrian JAROSZEWSKI and Amy Page-Jaroszewski, Appellants, v. Charles F. FLEGE and Karen Jaroszewski, Appellees.
CourtUnited States State Supreme Court — District of Kentucky
Opinion of the Court by Chief Justice MINTON.
I. INTRODUCTION.

We accepted discretionary review of this case to clarify the analysis a trial court must undertake when deciding motions to dismiss for lack of prosecution under Kentucky Rules of Civil Procedure (CR) 41.02(1). We now reaffirm that the trial court must consider all factors relevant to that case in ruling upon such a motion. And we construe recent Kentucky cases as offering guidelines for trial courts on pertinent factors for consideration when confronted with a lack-of-prosecution motion under CR 41.02, rather than as establishing a formula to be applied mechanically. Appellate courts will continue to review dismissals under CR 41.02 for lack of prosecution under an abuse of discretion standard.

II. FACTS AND PROCEDURAL HISTORY.

This case arose from a 1999 interstate highway collision between vehicles operated by Karen Jaroszewski and Charles F. Flege. At the time of the collision, Brian Jaroszewski and Amy Page-Jaroszewski were traveling with Karen1 in a rented van from New York through northern Kentucky. Brian and Amy allegedly suffered serious injuries in the accident. They retained an attorney in New York, who, with the aid of local counsel in Kentucky, filed suit on their behalf against Karen and Flege in the Grant County, Kentucky, circuit court in 2001.

After Karen and Flege filed answers to the complaint, the record reflects that Karen answered interrogatories and a request for production of documents propounded by Brian and Amy later in 2001. The two co-defendants (Karen and Flege) also began requesting discovery from each other, as well as from the Plaintiffs, Brian and Amy.

In January 2002, Karen's counsel filed in the record a notice that Alamo Rent-A-Car, the company from which Karen had rented the van, had recently filed bankruptcy and that "[t]he automatic stay provisions of 11 U.S.C. [United States Code], Section 362(a)(1) 8b (6) would seem to stay any action in the [Kentucky civil action]." The notice stated that the trial court would be informed when the bankruptcy stay was lifted. Despite no written notation in the record that the stay had been lifted, Karen filed a notice to take Flege's deposition several months later in November 2002. In July 2003, Flege filed a notice to take the deposition of Michael Smith, a witness to the accident. However, the record reflects that Plaintiffs Brian and Amy did not file anything in the official court record during the 2002 calendar year.

Later in 2003, Flege filed a notice to schedule a defense medical examination of Brian with a doctor in the Cincinnati area. After Brian objected to having to travel outside New York for the medical examination, Flege filed a motion to compel discovery. The trial court granted the motion and ordered Brian to attend the medical examination in the Cincinnati area. Apart from their response to Flege's motion to compel, Plaintiffs Brian and Amy did not file anything else of record during the 2003 calendar year.

The record reflects that during the 2004 calendar year, Flege filed notice of and took the depositions of Karen and Brian and propounded a second set of interrogatories and a request for production of documents to Brian. Apparently, Brian did not respond to the interrogatories and request for production of documents for approximately six months.2 Other than Brian's appearing for his deposition, Plaintiffs Brian and Amy again did nothing of record during the 2004 calendar year and through the first few months of 2005.

In June 2005, Karen filed a motion to dismiss for lack of prosecution, citing CR 41.02.3 Her memorandum in support of this motion argued that "[t]his case has remained inactive" since Flege had taken depositions in early 2004. A few days later, Plaintiffs Brian and Amy filed a motion to set the case for trial.

After filing the motion to set the case for trial, the plaintiffs also filed a response to Karen's motion to dismiss. In the response, the plaintiffs reminded the trial court of the 2002 bankruptcy stay and of the fact that "discovery resumed" after the stay was allegedly lifted. However, at a July 2005 hearing, there was discussion about whether the stay was ever lifted and whether it actually ever applied to this case. The plaintiffs also told the trial court that the parties had been discussing mediation in 2003 but that Flege had refused to participate in mediation. Flege instead wanted to take Brian's deposition and schedule a defense medical examination. The plaintiffs further noted that after the medical examination and Brian's deposition were completed, they learned in Karen's deposition that she had purchased additional liability insurance coverage from Alamo.

According to the plaintiffs' response, the discovery of Karen's possible additional liability insurance coverage from Alamo prompted their counsel to conduct more factual investigation and legal research into this matter — in addition to trying to comply with requests for Brian's medical information — while also continuing to pursue the possibility of mediation. Thus, the plaintiffs contended in this response that they had been actively pursuing the case, although they acknowledged that the trial court's official record was devoid of documentation of their activities. The plaintiffs' response provided, in part, that:

Plaintiffs' counsel then began working on discovering the rental car documents and verification of which entity held this coverage. Counsel used much of the period to develop this investigation on the coverage that might be available, as the carrier involved for Karen Jaroszewski has minimal policy limits. Counsel has worked on the file throughout this period; however, it has been work that would not be transparent to the other parties. Counsel did initiate telephone calls to the parties inquiring about resetting the mediation in mid 2004. In October of 2004[,] Counsel for the Plaintiff sent a letter in response to Charles Flege's inquiry of mediation, providing possible dates for mediation. Defense counsel for Mr. Flege then stated they wanted additional medical records and information. Given the fact that Mr. Jaroszewski is in New York, counsel has been working with co-counsel to obtain this information and provide responses to the same.

Accordingly, this case has been pursued and has not been inactive. In fact, just prior to the filing of the Motion to Dismiss, discovery was answered and a discussion was held with the previously scheduled mediator, Steve Wolnitzek. Counsel then forwarded correspondence to all parties advising them to contact her regarding scheduling a mediation; however, if no response was received, a Motion to Set for Trial would be filed. Plaintiff respectfully requests that the Court deny the Motion to Dismiss and set this case for trial and/or mediation.

Meanwhile, Flege filed his own motion to dismiss for lack of prosecution. He alleged that the plaintiffs had failed to file any responsive pleadings in the record in over four years and that all pleadings contained in the trial court's official record were filed by the defendants.4 He also contended that the plaintiffs had deliberately delayed responding to discovery requests, resulting in some medical records becoming unavailable.5 Stating that plaintiffs had "done absolutely nothing to advance this case," other than filing the motion to set for trial, Flege argued that "[b]ecause of the age of the Defendant [Flege], age of the case, and the potential loss of witnesses, this case should not be allowed to continue."

The plaintiffs filed a response to Flege's motion. In their response, they alleged they had been "cooperating with the Defendants" and had "not failed to answer discovery or respond to requests for the same." They stated their counsel had been diligently trying "to secure requested information" and argued no motion to compel had been filed for lack of cooperation; rather, the Motion to Compel filed concerned whether the defense medical exam would occur in Cincinnati or New York. They claimed that any delay in obtaining medical records was unintentional and, apparently, due to health care providers' lack of cooperation. They noted they provided authorizations to obtain health records and also stated, "Defendants could seek to obtain this information through subpoena or inform counsel of their problem and discuss solutions." They also pointed to their efforts to obtain mediation and their attempts to resolve insurance issues in arguing that their lack of recently filed pleadings or discovery requests did not prove lack of prosecution as "merely because another party notices the deposition does not mean there is a lack of prosecuting one's case if it is moving forward."

Following a hearing, the trial court granted the defendants' motions to dismiss under CR 41.02. The trial court's order briefly found a lack of sufficient effort to prosecute the case over the preceding four years without reasonable explanation:

The Court believes that this is the very type of case anticipated by the Rule in which there has been almost a complete absence of effort to prosecute the case on behalf of Plaintiffs during the four (4) years since it was filed. The Court finds that no reasonable explanation has been shown by Plaintiffs for this almost complete failure to prosecute their case.

The Plaintiffs then filed a motion to vacate the trial court's dismissal...

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