GLA Inc. v. Spengler, 6764

• Decision Date: 19 February 1981
• Docket Number: No. 6764,6764
• Citation: 1 Haw.App. 647,623 P.2d 1283
• Parties: GLA INC., a Hawaiian corporation, dba Doctors Business Bureau of Hawaii and dba Pacific Collections, Plaintiff-Appellant, v. Paul J. SPENGLER, Jr., Defendant-Appellee.
• Court: Hawaii Court of Appeals

Page 1283

623 P.2d 1283

1 Haw.App. 647

GLA INC., a Hawaiian corporation, dba Doctors Business

Bureau of Hawaii and dba Pacific Collections, Plaintiff-Appellant, v. Paul J. SPENGLER, Jr., Defendant-Appellee.

No. 6764.

Intermediate Court of Appeals of Hawai'i.

Feb. 19, 1981.

Reconsideration for Rehearing Denied, March 9, 1981.

Syllabus by the Court

It was not an abuse of discretion for the lower court to dismiss a case for failure to prosecute where the plaintiff, because of inadvertence, failed to file a statement of readiness within one year after the complaint was filed.

Diane W. Wong, Honolulu (Robert R. Scarlett, Honolulu, on the briefs) for plaintiff-appellant.

Carl Tom, Honolulu (Henry H. Shigekane, William J. Shannon, and Naomi Sakamoto, Honolulu, on the brief) Damon, Shigekane, Key & Char, Honolulu, for defendant-appellee.

Before HAYASHI, C. J., and PADGETT and BURNS, JJ.

PER CURIAM.

This case involves the application of rule 12(f) ¹ of the Rules of the Circuit Court (RCC).

Plaintiff-Appellant filed its complaint on April 8, 1976, alleging that defendant-appellee owed it $6,666.67 plus interest from December 24, 1975 and $262.61 plus interest from December 22, 1975. Service was effected on June 7, 1976. Defendant's answer denying the alleged indebtedness was filed on June 14, 1976.

The next document in the lower court file is the court clerk's Notice of Proposed Dismissal issued on May 11, 1977 pursuant to rule 12(f), RCC. Plaintiff, on May 23, 1977, filed its Objection to Proposed Dismissal. Judge Fong considered plaintiff's objections at a hearing on June 7, 1977 and orally decided that the case should be dismissed.

On June 17, 1977, plaintiff filed a motion for reconsideration ² which Judge Fong orally denied on July 11, 1977. On August 17, 1977, plaintiff filed a motion to reinstate because of defendant's failure to comply with rule 23, RCC, ³ asserting that "(i)f dismissal of the Complaint is an appropriate sanction against Plaintiff, then ... reinstatement is the appropriate sanction against Defendant".

At the hearing on the motion to reinstate, when Judge Fong asked why the case had not been settled in the first place, defendant's attorney gave a brief summation of the facts which caused his client to conclude that he was not legally responsible for the alleged debts. Judge Fong orally denied the motion but ordered defendant to pay to plaintiff $75.00 for costs incurred by plaintiff in bringing its motion to reinstate. Thereafter a written order was entered dismissing the action "with prejudice". ⁴

Plaintiff contends that the standard for considering whether or not to dismiss a case for failure to file a statement of readiness within one year after the complaint is filed should be the same as the standard for deciding whether or not to set aside a default entry or a default judgment. BDM, Inc. v. Sageco, Inc., 57 Haw. 73, 77, 549 P.2d 1147, 1150 (1976), states the standard for setting aside a default as follows: The motion "may and should be granted whenever the court finds (1) that the nondefaulting party will not be prejudiced by the reopening, (2) that the defaulting party has a meritorious defense, and (3) that the default was not the result of inexcusable neglect or wilful act". (Citations omitted.)

Clearly, dismissal for want of prosecution is in the discretion of the court and the court's action will be reversed only for abuse of discretion. You Dong Men v. Ai, 41 Haw. 574 (1957). 9 Wright & Miller, Federal Practice and Procedure: Civil § 2370 (1971).

It may be, as suggested by plaintiff, that it is an abuse of discretion for the trial court to dismiss a case with prejudice for failure to prosecute when the facts indicate that the delay did not cause prejudice to the defendant, that the plaintiff has a meritorious claim, and that the failure was the result of excusable neglect.

However, even if plaintiff is correct about the applicable standard, it has not demonstrated on appeal that the lower court abused its discretion in concluding that plaintiff had failed to satisfy the standard.

To satisfy the standard, plaintiff relied solely on his attorney's affidavit, wherein the attorney explains that he did not file the statement of readiness as required because of "inadvertence", ⁵ that he "believes Plaintiff's claim to be worthy of a hearing on the merits", and that to the best of his knowledge and belief defendant's ability to defend has not been substantially prejudiced by the delay.

In effect, the lower court decided that plaintiff's attorney's inattention was not excusable neglect and that plaintiff must suffer the consequences of its attorney's neglect. We find no abuse of discretion in either conclusion.

We recognize the policy favoring a full trial on the merits, BDM, Inc. v. Sageco, Inc., supra, 57 Haw. at 76, 549 P.2d 1147, and the policy disfavoring dismissals with prejudice if there are lesser sanctions that could vindicate the purpose of the rules and the desire to avoid court congestion. 9 Wright & Miller, Federal Practice and Procedure: Civil § 2370 (1971). However, those policies do not cause us to reverse the lower court's decision in this case.

Plaintiff also contends the dismissal should be set aside because the lower court entertained a statement of defendant's position on the facts in dispute and left "a clear impression that such statements influenced the Court's decision". We reject this contention.

First, if plaintiff is correct that the BDM, Inc. v. Sageco, Inc., supra, standard...