Civil Procedure – Lack of prosecution, dismissal, discovery: Brian Jaroszewski & Amy Page-Jaroszewski v. Charles F. Flege & Karen Jaroszewski (SC 10/29/2009)

Brian Jaroszewski & Amy Page-Jaroszewski v. Charles F. Flege & Karen Jaroszewski
2008-SC-000112-DG October 29, 2009
Opinion by Chief Justice Minton; all sitting.

Plaintiffs in a tort action appealed the trial court’s grant of defendant’s motion to dismiss for lack of prosecution (CR 41.02). The Court of Appeals remanded the case back to the trial court to reconsider the motion in light of the factors set forth in Ward (1: extent of party’s personal responsibility for the delay; 2: history of dilatoriness; 3: whether attorney’s conduct is willful or in bad faith; 4: merits of plaintiff’s claim; 5: lack of availability of alternative sanctions). On remand, the trial court again granted dismissal; the Court of Appeals affirmed.

The Supreme Court affirmed, holding that when considering motions to dismiss for lack of prosecution, trial courts must consider the totality of the circumstances, not just the factors listed in Ward, and must make an explicit finding of fact.

The Court declined to create a formula to be applied mechanically in all cases. Rather, the Court opted to fashion guidelines for trial courts based on Ward and others circumstances surrounding the case. The Court reviewed the Ward factors as they applied to this dispute, and considered the other relevant factors before affirming. Justice Venters concurred by separate opinion, contending that trial courts should also consider whether the party moving for dismissal has taken steps towards resolving the case prior to moving to dismiss— likening the situation to where criminal defendants must assert their right to a speedy trial before claiming it has been violated.

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