Opinion
Case No. 20060691-CA.
Filed August 9, 2007. Not For Official Publication
Appeal from the Third District, Salt Lake Department, 030905851 The Honorable Denise P. Lindberg.
Robert Face and Jackie Face, American Fork, Appellants Pro Se.
Terry M. Plant and H. Justin Hitt, Salt Lake City, for Appellees.
Before Judges Greenwood, Davis, and Thorne.
MEMORANDUM DECISION
Plaintiffs Robert and Jackie Face appeal a final order of the trial court granting Defendants Beutler Enterprises, Inc.; Mobile Home Transporters; and Byron Chester Mock's Motion to Dismiss for Failure to Prosecute. We affirm.
After two and a half years of preparation for trial, and after Plaintiffs had filed a Certificate of Readiness for Trial, the trial court held a telephone conference with the parties on September 16, 2005. During this conference, Attorney Gruber informed the court that he intended to withdraw as counsel for Plaintiffs, and the court approved the withdrawal. The trial court then asked Attorney Plant, counsel for Defendants, to prepare an order, consistent with rule 74 of the Utah Rules of Civil Procedure, informing Plaintiffs of their responsibility to appear in person or to acquire new representation within twenty days.See Utah R. Civ. P. 74(c). On September 23, 2005, Gruber filed pleadings withdrawing as counsel for Plaintiffs, and those pleadings were mailed to Plaintiffs that same day. Four days later, the Notice to Appear or Appoint Successor Counsel, drafted by Plant, was mailed to Plaintiffs.
On October 17, 2005, the day before a previously set telephone scheduling conference, Plaintiffs filed an Ex-Parte Motion for Enlargement of Time to Appoint Counsel, requesting at least thirty additional days to obtain counsel. During the telephone conference the following day, the trial court addressed the motion for additional time. The court asked Plaintiffs, "[W]ill November 18th give you sufficient time?" Plaintiffs responded, "[T]hat would be of great help to us if you could do that." Plaintiffs were thus given until the close of business on November 18 to obtain counsel.
The day prior to the November 18 deadline, Plaintiffs filed another Ex-Parte Motion for Additional Time to Appoint Counsel, requesting sixty more days. The trial court did not address this motion, and no further action was taken in the case until February 14, 2006, when Defendants filed a Motion to Dismiss for Failure to Prosecute pursuant to rule 41 of the Utah Rules of Civil Procedure, see Utah R. Civ. P. 41(b), which motion was also served upon Plaintiffs. A detailed memorandum in support accompanied the motion and clearly put Plaintiffs on notice that Defendants were seeking a dismissal with prejudice. On February 27, 2006, Plaintiffs filed a Motion for Additional Time to Have New Counsel Respond to Defendants' Motion to Dismiss. Nearly four months later, and after no further filings by Plaintiffs, Defendants filed a Notice to Submit for Decision. On June 28, 2006, the trial court issued a memorandum decision granting Defendants' motion to dismiss. Plaintiffs now appeal that dismissal.
Plaintiffs argue that the trial court improperly dismissed their claim under rule 41 for failure to prosecute. See id. "[T]he trial court should have a reasonable latitude of discretion in dismissing for failure to prosecute if a party fails to move forward according to the rules and the directions of the court, without justifiable excuse."Westinghouse Elec. Supply Co. v. Paul W. Larsen Contractor, Inc., 544 P.2d 876, 878-79 (Utah 1975) (footnote omitted). To determine whether the trial court exceeded its discretion, we look not only to the three-year time lapse since the complaint was filed, but consider five additional factors:
1) the conduct of both parties; 2) the opportunity each party has had to move the case forward; 3) what each party has done to move the case forward; 4) the amount of difficulty or prejudice that may have been caused to the other side; and 5) "most important, whether injustice may result from the dismissal."
Meadow Fresh Farms, Inc. v. Utah State Univ. Dep't of Agric. Applied Sci., 813 P.2d 1216, 1219 (Utah Ct.App. 1991) (quotingWestinghouse, 544 P.2d at 879).
Respecting the first three factors, it appears, as the trial court noted, that "[D]efendants have actively pursued this action" while Plaintiffs "chose not to do so." The record supports the trial court's finding that "what discovery has occurred . . . appears to have been driven primarily by [Defendants]." And in the nine months since Gruber's withdrawal, Plaintiffs have done little more than repeatedly request additional time to obtain counsel. Plaintiffs contend that they "were diligent in seeking new counsel," and that they invested much time, effort, and money on discovery, which investments are not reflected in the record. But "[t]he burden is on the party `attacking a dismissal for failure to prosecute [to] offer a reasonable excuse for its lack of diligence,'"Country Meadows Convalescent Ctr. v. Utah Dep't of Health, 851 P.2d 1212, 1215 (Utah Ct.App. 1993) (second alteration in original) (quotingMeadow Fresh, 813 P.2d at 1218), and any justification not presented to the court and reflected in the record should have been remedied by Plaintiffs prior to dismissal. Plaintiffs, however, never actually responded to the motion to dismiss in the four months before the trial court acted upon it, virtually ignoring their opportunity to explain any justifiable excuse for delay. Instead, Plaintiffs now point to the recent inaction on the part of Defendants — who had little opportunity to move the case forward while Plaintiffs remained unrepresented — as justification for the delay. But it was Plaintiffs' duty to move the case forward, and they do not show how any inaction by Defendants contributed to the failure to prosecute. See id. at 1216 ("Although inaction on the part of a defendant may contribute to the justifiability of a plaintiff's excuse for delay, the duty to prosecute is a duty of due diligence imposed on a plaintiff, not on a defendant.").
The fourth factor addresses the difficulty or prejudice to Defendants, and the fifth factor considers any injustice to Plaintiffs that would result from dismissal. See Meadow Fresh, 813 P.2d at 1219. Defendants never addressed prejudice before the trial court, but we agree with the trial court that "that prong, by itself, is not determinative." As to any injustice to Plaintiffs, such injustice is a result of Plaintiffs' own inaction. Through Defendants' motion to dismiss and accompanying memorandum, Plaintiffs were clearly made aware that Defendants were seeking dismissal with prejudice in accordance with rule 41(b).See Utah R. Civ. P. 41(b). The memorandum set forth the legal arguments and authority for a dismissal with prejudice; outlined the facts supporting a dismissal under rule 41(b), including Defendants' efforts in defending against the claim, Plaintiffs' multiple requests for extensions that had since run, and Plaintiffs' four-month failure to appoint counsel; and specifically requested such a dismissal. Notwithstanding, Plaintiffs did not respond to the motion.
In sum, Plaintiffs were initially given twenty days to fulfill their responsibility to appear or appoint counsel under rule 74. See Utah R. Civ. P. 74(c). Thereafter, the trial court was more than accommodating in giving Plaintiffs additional time beyond those twenty days. Plaintiffs ultimately had from the receipt of notice of Gruber's withdrawal until the case was dismissed — a period lasting over nine months — to find representation or, at a minimum, to provide the trial court with an explanation for the delay. Plaintiffs, however, did neither, even when faced with a motion to dismiss. Thus, weighing the above five factors, we determine that the trial court did not exceed its discretion in dismissing the case for failure to prosecute. We therefore affirm.
Plaintiffs suggest that the trial court's statement, "I'll give you the time that you need," gave Plaintiffs an indefinite amount of time to obtain counsel; but the record reflects otherwise. The phone conference transcript shows that the court set a deadline of November 18, 2005, that Plaintiffs agreed to that deadline, and that the entire purpose of the phone conference was "to set a time certain for [Plaintiffs] to get counsel."
Plaintiffs raise for the first time on appeal various additional arguments. "As a general rule, claims not raised before the trial court may not be raised on appeal." State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346. And even were these arguments properly brought before this court, they are unavailing. Plaintiffs contend that the trial court erred by allowing Gruber to withdraw under rule 74 of the Utah Rules of Civil Procedure and that their constitutional rights to due process were thus violated. See U.S. Const. amend. V; Utah Const. art. I, § 7. But Plaintiffs have not shown prejudice, i.e., why the result would have been any different had the rule's requirements been followed as set forth by Plaintiffs. See generally State v. Arguelles, 2003 UT 1, ¶ 94 n. 23, 63 P.3d 731 ("With few exceptions, constitutional errors are reviewed for harmlessness."). Plaintiffs also assert that the trial court erred by failing to grant protections under the Americans with Disabilities Act of 1990. See 42 U.S.C. §§ 12101- 12213 (2000). But even assuming that Mr. Face qualifies as disabled under the Act, Plaintiffs cite to no authority establishing any extra protections that need be afforded disabled persons in these circumstances.
Plaintiffs additionally "seek reimbursement of all costs and expenses," but provide no authority to support such a claim. Their request is therefore denied.
I CONCUR: Pamela T. Greenwood, Associate Presiding Judge.
I respectfully dissent from my learned colleagues. Dismissal with prejudice is a harsh remedy that should be sparingly employed. See Bonneville Tower Condo. Mgt. Comm. v. Thompson Michie Assocs., 728 P.2d 1017, 1020 (Utah 1986) ("Dismissal with prejudice . . . is a harsh and permanent remedy when it precludes a presentation of a plaintiff's claims on their merits."); Reliable Furniture Co. v. Fidelity Guar. Ins. Underwriters, Inc., 16 Utah 2d 211, 398 P.2d 685, 688 (1965) (describing pretrial dismissal as "a drastic action . . . used sparingly and with great caution"). And, our supreme court has held that "when a litigant does fail to engage new counsel, that, in and of itself, is not an adequate basis to default him or to dismiss as against him with prejudice." Utah Oil Co. v. Harris, 565 P.2d 1135, 1136 (Utah 1977) (interpreting prior Utah Code section 78-51-36). In light of these principles, I believe that the trial court exceeded the bounds of its discretion in this case when it dismissed Plaintiffs' action with prejudice for failure to prosecute. Accordingly, I respectfully dissent from the majority opinion.
I initially note that Plaintiffs in this matter are, and were at relevant times below, without an attorney to represent them. While pro se litigants are bound by the same rules as those represented by counsel, as laypersons lacking technical knowledge of law and procedure Plaintiffs "should be accorded every consideration that may reasonably be indulged." Lundahl v. Quinn, 2003 UT 11, ¶ 3, 67 P.3d 1000 (quotations and citations omitted). Granting Plaintiffs such reasonable consideration, my reading of the record below differs greatly from the version of events reflected in both the trial court's order of dismissal and the majority opinion of this court, and mandates a different result.
I agree that, prior to attorney Gruber's withdrawal, this litigation was not on a particularly fast track. Nevertheless, it does not appear to have been languishing either. Despite the filing of the case in March 2003 and a contemplated trial readiness date of October 2004, both parties engaged in discovery and settlement negotiations into 2005. In any event, when the trial court set an order to show cause hearing in August 2005 due to lack of progress in the case, Plaintiffs promptly filed a certificate of readiness for trial. See Utah R. Civ. P. 16(b) ("[T]he plaintiff shall, at the close of all discovery, certify to the court that the case is ready for trial. The court shall schedule the trial as soon as mutually convenient to the court and parties."). The trial court responded by setting a trial scheduling conference for October 5, 2005. To this point, the case's progress appears to be "business as usual" in the civil litigation context.
Gruber withdrew as counsel before or during the scheduling conference, giving rise to the series of events that eventually culminated in the trial court's dismissal order. The first record indication of Gruber's withdrawal appears in the transcript of the September 16, 2005 hearing attended by Gruber and Defendants' counsel, but not by Plaintiffs themselves. At this hearing, Gruber announced his intention to withdraw. The attorneys and the trial court discussed the ramifications of that withdrawal, and the court set an initial deadline of twenty days for Plaintiffs to appear or appoint new counsel. When Defendants' counsel inquired as to the consequences if Plaintiffs failed to do so, the court responded, "Well, we're moving forward."
Gruber formally withdrew on September 23, and on September 27 Defendants filed a Notice to Appear or Appoint pursuant to rule 74 of the Utah Rules of Civil Procedure. See Utah R. Civ. P. 74(c). The notice stated that "[p]ursuant to [rule 74], no further proceedings shall be held in the care [sic] until 20 days have elapsed from filing of this [notice], but further proceedings will be held following the lapse of 20 days." On September 28, the trial court issued a written order granting Plaintiffs until October 25 to appear or appoint counsel.
On October 17, Plaintiffs filed their first motion for extension of time, seeking an additional thirty days to find appropriate counsel. An accompanying affidavit described the circumstances of Gruber's withdrawal and asserted Defendants' agreement to the extension. On October 18, the trial court held a hearing attended by Plaintiffs and by Defendants' counsel. At the hearing, Plaintiffs stressed to the trial court that they did not want to proceed pro se. The trial court extended the deadline for Plaintiffs to obtain counsel until November 18, and assured Plaintiffs that it would "give you the time that you need." The court also instructed Defendants' counsel to request a scheduling conference with the court when Plaintiffs decided what to do regarding counsel.
On November 17, Plaintiffs filed a second motion for extension of time, this time seeking sixty additional days. In an accompanying affidavit, Plaintiffs asserted that they had been diligently pursuing new counsel and detailed their efforts in that regard. Two law firms had declined their case due to lack of specialization in the type of serious brain injury suffered by Mr. Face. Plaintiffs then sought referrals through a national trial lawyers' association, and received four referrals to attorneys specializing in Mr. Face's injury type. Plaintiffs had already consulted with two of the referred attorneys and wanted time for all of the attorneys to review the case if necessary. Defendants did not respond to Plaintiffs' motion, nor did the trial court rule on it.
The next pleading in the record is Defendants' motion to dismiss, filed on February 14, 2006. As explained in Defendants' accompanying memorandum, the motion sought dismissal under rule 41 due to Plaintiffs' alleged violation of rule 74 by failing to appear or appoint counsel within twenty days of Defendants filing of the notice to appear or appoint. See Utah R. Civ. P. 41, 74(c). Although the memorandum also briefly outlined the history of the case prior to Gruber's withdrawal, Defendants' request for relief was premised solely on Plaintiffs' failure to appear or appoint new counsel after Gruber's withdrawal.
On February 27, within the time for response to Defendants' motion, Plaintiffs filed a third motion for extension of time. The accompanying affidavit referred to the trial court's comments at the October 18 hearing and expressed Plaintiffs' understanding that the court "declined setting this matter for scheduling conference until after we obtained new counsel." The affidavit also stated that Plaintiffs had met with a particular local attorney in January 2006, that the attorney had just completed reviewing the file, and that representation discussions with that attorney were underway. Neither party filed any further pleadings until June 16, 2006, at which time Defendants filed a notice to submit their dismissal motion for decision. The notice to submit stated that Plaintiffs had "filed no responsive pleading to date." On June 28, 2006, the trial court issued a memorandum decision and order granting Defendants' motion to dismiss. The trial court's order focused largely on events preceding Gruber's withdrawal, and relied heavily on Plaintiffs' failure to oppose the motion to dismiss "other than to again ask for an extension of time."
Granting Plaintiffs "every consideration that may reasonably be indulged," Lundahl v. Quinn, 2003 UT 11, ¶ 3, 67 P.3d 1000 (quotations and citations omitted), I see two problems with the trial court's dismissal order. First and foremost, Plaintiffs' response to Defendants' motion to dismiss, while not labeled as an opposition to that motion, clearly addressed the substance of the motion. It is hard to imagine an opposition pleading that, at its heart, would not have asserted the same operative facts asserted by Plaintiffs in their affidavit: a desire to have counsel, reliance on the trial court's previous pronouncements on the subject, and, most importantly, their continuing diligent efforts to find appropriate counsel. In light of Plaintiffs' substantive, if inartful, response to Defendants' motion, I believe that the trial court exceeded the bounds of its discretion when it granted Defendants' motion as unopposed.
I do not disagree that Plaintiffs' pleadings in opposition to Defendants' motion should properly have expressly identified themselves as such. See, e.g., Gillett v. Price, 2006 UT 24, ¶ 8, 135 P.3d 861 ("Parties can no longer leave this task to the court by filing so-called motions to reconsider and relying upon district courts to construe the motions within the rules."). However, Plaintiffs' request for additional time, and the accompanying affidavit providing facts in support of that request, were clearly filed in response to Defendants' sole motion pending before the trial court. I would conclude that it was inappropriate for the trial court to fail to consider these pleadings, particularly in light of Plaintiffs' pro se status.
My second concern rests on the ordinary due process consideration that litigants are entitled to notice of the potential consequences of their actions and inactions, particularly when the consequence is the drastic measure of dismissal with prejudice. "In our judicial system, . . . all parties are entitled to notice that a particular issue is being considered by a court and to an opportunity to present evidence and argument on that issue before decision." Plumb v. State, 809 P.2d 734, 743 (Utah 1990). While Defendants' motion gave notice thatDefendants were seeking dismissal, I see nothing in the record that gave Plaintiffs notice that the trial court was considering imposing such an extreme sanction. Over the course of two hearings and one written order, the trial court never told the pro se Plaintiffs that dismissal was a possibility. To the contrary, the court spoke in terms of giving Plaintiffs time that they needed and directed Defendants to request a scheduling conference when Plaintiffs' counsel situation was resolved.
I agree with the majority that this statement by the trial court cannot reasonably be interpreted as a guarantee of unlimited time to find counsel. However, it certainly implies the potential availability of reasonable additional time if the circumstances warranted it.
Indeed, to me the relevant question is not why Plaintiffs did not retain counsel in the months leading up to Defendants' motion, but rather why Defendants did not request a scheduling conference to force the counsel issue, as was at least implicitly suggested by the trial court. See Utah Oil Co. v. Harris, 565 P.2d 1135, 1137 (Utah 1977) (using defendants' failure to request a trial or pre-trial conference as a factor establishing an abuse of discretion in granting a motion to dismiss based on failure to prosecute).
Further, Defendants' motion very specifically premised its request for relief on Plaintiffs' alleged violation of rule 74. See Gillett v. Price, 2006 UT 24, ¶ 8, 135 P.3d 861 ("[T]he form of a motion does matter because it directs the court and litigants to the specific, and available, relief sought."). Rule 74 itself places no particular deadline on unrepresented parties to appear or appoint counsel, and I do not believe that an alleged violation of rule 74(c) can support dismissal on the grounds of failure to prosecute. Defendants argued to the trial court that rule 74 "require[s] that [appointment or appearance] be done within 20 days." I see no such requirement in rule 74. Rather, rule 74(c) provides a twenty day moratorium on proceedings, for the protection of parties who lose their counsel. When the twenty day moratorium expires, I believe that the management of the case falls to the sound discretion of the trial court judge.See Utah Oil Co. v. Harris, 565 P.2d 1135, 1136 (Utah 1977) (characterizing former Utah Code section 78-51-36, the predecessor to rule 74(c), as "clearly . . . hav[ing] been enacted to safeguard a litigant who finds himself without counsel"). While the twenty day language of rule 74(c) clearly implies some limit to the potential delay caused by the withdrawal of counsel, I do not think that it acts to turn the rule from a shield for unrepresented litigants into a sword to be wielded against them by opposing counsel.
Even if I were to analyze Plaintiffs' behavior as a failure to prosecute, I would still find that the trial court exceeded the bounds of its discretion in dismissing their case. I agree with the majority opinion that Meadow Fresh Farms, Inc., v. Utah State University Department of Agriculture Applied Science, 813 P.2d 1216 (Utah Ct.App. 1991), established a five-factor analysis for reviewing failure to prosecute dismissals. See id. at 1219. Placing my objections within theMeadow Fresh framework, I believe that Defendants' failure to request a scheduling conference is as much to blame for the case's delay as any dilatory conduct on the part of the pro se Plaintiffs. See Utah Oil Co., 565 P.2d at 1137 ("[W]here all of the litigants had power to obtain relief and failed to do so, it is error to dismiss with prejudice. None of the defendants requested a resetting of either a pre-trial conference or trial as was mandated by the court previously when the pre-trial was suspended by reason of settlement negotiations."). Thus, I would deem the first three Meadow Fresh factors to be, at most, a wash.See 813 P.2d at 1219 (listing first three factors as conduct of both parties, each party's opportunity to move case forward, and each party's actual actions to move case forward). Similarly, I see no particular prejudice to Defendants, since they "had power to obtain relief and failed to do so." Utah Oil Co., 565 P.2d at 1137; see also Meadow Fresh, 813 P.2d at 1219 (listing fourth factor as difficulty or prejudice suffered by opposing party). Finally, as to the most important factor of all, I do consider dismissal with prejudice to be an injustice in light of all of the circumstances I have discussed herein. See Meadow Fresh, 813 P.2d at 1219 (listing fifth factor as "most important, whether injustice may result from the dismissal" (quotations and citation omitted)).
For these reasons, I believe that the trial court exceeded the bounds of its discretion both by accepting the central premise of Defendants' motion — that "violation" of rule 74(c) can form the sole ground for dismissal — and by ignoring Plaintiffs' substantive response to that motion. Rather, presented with Defendants' motion and Plaintiffs' response, the trial court had a choice to make: either grant Plaintiffs more time to acquire counsel or require Plaintiffs to proceed pro se. Dismissal would only become an option once Plaintiffs were placed on notice that they must proceed pro se and then failed to proceed with the case after receiving clear guidance as to what was expected of them. Accordingly, I dissent from the majority opinion.
In this case, it would have been entirely appropriate for the trial court to set firm deadlines to ensure resolution of the case in a timely fashion. The trial court could then enforce those deadlines with the sanctions within its discretion, up to and including dismissal.
William A. Thorne Jr., Judge.