Civil Case Dismissed for Failure to Prosecute

I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss topics related to personal injury law.

Today’s question comes from a caller who sounded upset and said that the attorney who was handling an injury case for her just told her that he was closing her file, because her case was dismissed because no action was taken to prosecute her claim, and she was looking for a new attorney to help sort out what happened.

Dismissal of a case for failure to prosecute does occasionally happen when a case is neglected. But there can be a number of reasons for a dismissal.

So, let’s step through what happened in the caller’s case.

In order to manage the flow of cases through the court system the Indiana court rules contain a provision on dismissal of actions due to a failure to take action.

In Indiana the rule at issue is Rule 41. Most every state has a similar rule, and the federal court system does as well.

Rule 41 contains a provision that says when no action has been taken in a civil case for a period of 60 days, the court on its own motion or the motion of another party, may dismiss the case.

This might seem harsh. You hire an attorney and the attorney files your case, but for some reason 60 days goes by without any action being taken, and all of a sudden, the case is dismissed.

In this caller’s case it was the caller’s fault, and not the fault of her attorney. Of course a dismissal for failure to take action can be an attorney’s fault, but, in questioning the caller, it was the caller’s fault.

Here is an example of how a party plaintiff can be at fault for the dismissal of a case. If written questions are submitted by the defendant to the plaintiff, the rules give  the plaintiff 30 days to answer. The purpose is to keep a case moving. Typically, these deadlines are subject to enlargement by agreement or court order. Also, if a defendant issues a deposition notice wanting to ask a plaintiff questions in person under oath in front of a court reporter, but the plaintiff fails to appear and answer, a case can end up being dismissed. Sometimes a dismissal is due to neglect or failure to cooperate, and sometimes it is a result of a court punishing a party for not taking action or cooperating.

In the caller’s case the dismissal was due to the caller’s failure to respond to her former attorney’s requests for help with her own case. Apparently, she changed phones and did not give her attorney her new number and they lost contact.

What are the legal ramifications of having a case dismissed?

Well, courts can’t simply allow cases to sit on their docket where no action is taken. If a plaintiff has taken no action on a case through his or her attorney and 60 days passes, the court is within its rights to dismiss a case.

Think of it this way, where a case is filed and nobody takes any action after it’s filed the court will at some point get fed up, and it will  dismiss the case. Most courts give a further grace period beyond 60 days. Or, the court will grant a timely petition to re-docket the case. But the situation is one where courts want to have things moving along. Whether a case gets decided in the plaintiff’s favor, or it gets dismissed, it is moved off the court’s docket.

Judges are often scored by how quickly they resolve cases. Especially at the appellate court level, it’s important to move cases and get them resolved.

Think about how you would feel as a plaintiff or defendant and you file a motion with the court, and the Judge just sits on the motion, and months and months go by and the judge never rules. You would be pretty ticked off.

As a side note, there is in fact a rule that allows a party to take action if a judge doesn’t move the case forward in a timely fashion. Not surprisingly that rule is nicknamed “the lazy judge rule”. And it provides that if the judge doesn’t take action a party can petition a higher court to instruct the judge to take action, or assign a new judge to the case.

So why do we share this information?

Because it’s helpful to understand how the process works if you hire an attorney. If your attorney loses track of you and cannot comply with requests from the other party, or otherwise fails to take action it can result in a case being dismissed.

So, if your attorney asks you for information and to respond to questions from the other party, and you must timely respond, and if you don’t timely respond, it is all on you, and your failure to respond in a timely fashion can hamstring your attorney, and lead to case dismissal.

As hinted at already, if a case is dismissed, typically the dismissed party can petition within a reasonable amount of time to have a case reinstated. They must show that they were diligently doing things in the background, like contacting witnesses, etc. and just because they didn’t file papers with the court within that 60 day, they must show the court that it was not fair for the court to conclude that they were neglecting the case. If the right showing is made in such situations the courts routinely reinstate a case.

I hope you found this information helpful. If you have questions about your legal rights if you get hurt due to the carelessness of another person, or as a result of substandard medical care, or due to a product defect, construction injury, or any other type of personal injury, please give us a call at (219) 736-9700. You can also learn more about us by visiting our website at www.DavidHolubLaw.com – while there make sure you request a copy of our book “Fighting for Truth”.