Civil Procedure: TOLER V. RAPID AMERICAN (COA; 2/10/2006)

CIVIL PROCECURE – Dismissal for lack of prosecution

Date: 2/10/2006

COA vacated and remanded dismissal for lack of prosecution.  The two year delay was based on the Jefferson County Asbestos Master Order, and the record was unclear whether the Ward v. Housman, 809 S.W. 2d 717 (Ky. App., 1991) factors were properly considered.  See also, Scarborough v. Eubanks, 747 F.2d 871 (3d. Cir, 1984).

The following factors should be considered: (1) the extent of the party’s personal responsibility; (2) the history of dilatoriness; (3)  whether the attorney’s conduct was willful and in bad faith; (4) the meritoriousness of the claim; (5) prejudice to the other party; and (6) the availability of alternative sanctions.

‘The responsibility to make such findings as are set forth in Ward before dismissing a case with prejudice falls solely upon the trial court. Accordingly, even though we understand and sympathize with the court’s desire to move the cases on its docket along in a timely and expeditious manner, we find ourselves compelled to vacate its orders as to dismissal here and to remand this action for further consideration in light of Ward. In doing so, we express no view as to whether dismissal with prejudice will ultimately be merited.’

Please note: I reserve the right to delete comments that are inappropriate, offensive or off-topic.

Leave a Reply

Your email address will not be published.