Laguta v. Serieko

• Decision Date: 08 June 1988
• Docket Number: No. 13443,13443
• Citation: 48 Ohio App.3d 266,549 N.E.2d 216
• Parties: LAGUTA, Appellant, v. SERIEKO, d.b.a. Phoenix Auto Sales, Appellee.
• Court: Ohio Court of Appeals

Page 266

48 Ohio App.3d 266

549 N.E.2d 216

LAGUTA, Appellant, v. SERIEKO, d.b.a. Phoenix Auto Sales, Appellee.

No. 13443.

Court of Appeals of Ohio, Ninth District, Summit County.

June 8, 1988.

Syllabus by the Court

Where a plaintiff who is incarcerated and unrepresented by counsel fails to appear at a pretrial conference to which he requested but was not granted transportation, a trial court abuses its discretion in dismissing the action with prejudice for failure to prosecute without first considering other alternatives which would lead to a resolution on the merits.

George A. Laguta, pro se.

James M. Gatskie, Akron, for appellee.

QUILLIN, Judge.

Plaintiff-appellant, George Laguta, an inmate at the Marion Correctional Institution, acting pro se, sued defendant-appellee, John Serieko, for breach of an alleged partnership agreement. The trial court notified Laguta that a pretrial hearing, in accordance with Loc.R. 8 of the Court of Common Pleas of Summit County, General Division, would be held in eleven days and that "[f]ailure to attend the pretrial conference may result in sanctions being imposed, including adverse judgment for failure to prosecute or defend." Laguta filed an affidavit of indigency and a motion to be transported to the courthouse for the pretrial conference. As expected, Laguta failed to appear at the pretrial conference and the court dismissed his action with prejudice for failure to prosecute. Civ.R. 41(B)(1). Laguta appeals.

On appeal, Laguta contests the trial court's dismissal with prejudice for failure to prosecute. We hold that the trial court abused its discretion in imposing the severest of all sanctions, dismissal with prejudice, without first considering other alternatives which would lead to a resolution on the merits.

It is within the inherent powers of the court to dismiss an action sua sponte for failure to prosecute. Link v. Wabash RR. Co. (1962), 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734. Pursuant to Civ.R. 41(B)(1), notice of the intended dismissal must be given to the plaintiff. Perotti v. Ferguson (1983), 7 Ohio St.3d 1, 7 OBR 256, 454 N.E.2d 951; Pembaur v. Leis (1982), 1 Ohio St.3d 89, 1 OBR 125, 437 N.E.2d 1199. Such notice permits the plaintiff an "opportunity to comply with the order, correct the defect, or proceed before dismissal * * *." Perotti, supra, 7 Ohio St.3d at 3, 7 OBR at 257, 454 N.E.2d at 952. Here, Laguta asked to be transported to the courthouse to comply with the notice.

In situations where, as here, the plaintiff is unrepresented by counsel and incarcerated, the federal courts have ruled that trial courts should pursue avenues other than dismissal for want of prosecution in order to ensure that those claims so deserving be adjudicated on their merits. Poole v. Lambert (C.A. 11, 1987), 819 F.2d 1025; Palmer v. Decatur (C.A. 7, 1987), 814 F.2d 426; Reynolds v. Foree (C.A. 8, 1985), 771 F.2d 1179; Sisk v. United States (C.A. 7, 1985), 756 F.2d 497; Holt v. Pitts (C.A. 6, 1980), 619 F.2d 558; Heidelberg v. Hammer (C.A. 7, 1978), 577 F.2d 429. If the risks and expense involved in transporting the prisoner to the courthouse are prohibitive, these courts have suggested a number of other alternatives to dismissal including a bench trial in the prison, trial by depositions, appointment of pro bono counsel to assist the plaintiff, postponement of proceeding if the plaintiff's release is imminent, or dismissal without prejudice leaving open the possibility of the plaintiff's refiling his case at a later date.

We too recognize that civil actions filed by...