Motion to Dismiss For Failure to Prosecute in Ohio

What Is a Motion to Dismiss For Failure to Prosecute?

Background

“Motions to dismiss for failure to prosecute are governed by Civ.R. 41(B)(1), which provides, in relevant part: ‘Where the plaintiff fails to prosecute, or comply with these rules or any court order, the court upon motion of a defendant or on its own motion may, after notice to the plaintiff's counsel, dismiss an action or claim.’” (Carter v. Lorain, 2005 Ohio 2564 [Ohio Ct. App. 2005] quoting Civ.R. 41(B)(1).)

General Information for Complaints and Motions

“The purpose of the notice requirement of Civ.R. 41(B)(1) is to ‘provide the party in default an opportunity to explain the default or to correct it, or to explain why the case should not be dismissed with prejudice.’” (Logsdon v. Nichols (1995), 72 Ohio St.3d 124, 128, quoting McCormac, Ohio Civil Rules Practice [2 Ed. 1995] at 357.)

““This rule specifically applies to cases in which the court dismisses a case for a party's nonappearance at a pretrial.” (Perotti v. Ferguson (1983) 7 Ohio St.3d at 1; Ocran v. Richlak, 2013 Ohio 4603, 8 [Ohio Ct. App. 2013].)

Additionally, “[t]he notice of dismissal ‘must be specific and not a general warning.’” (Shoreway Circle v. Gerald Skoch Co., L.P.A. (1994) 92 Ohio App.3d 823, 830.)

“Section 13.07. Civ.R. 41(B)(1) does not require actual notice of the possibility of dismissal; implied notice is sufficient when it is reasonable under the circumstances.” (Carter, supra, citing Quonset Hut, infra, 80 Ohio St.3d at 49; Logsdon v. Nichols (1995) 72 Ohio St. 3d 124 at 129 [Cook, J., concurring in part and dissenting in part].)

Factors for Consideration for Dismissal

“The factors a trial court will consider in ruling on a motion to dismiss, pursuant to Civ.R. 41(B)(1), include the drawn out history of the litigation, including a plaintiff's failure to comply with court orders until threatened with dismissal, and other evidence that a party is deliberately proceeding in dilatory fashion or has done so in a previously filed, and voluntarily dismissed, action.” (Green v. Zep, 2020 Ohio 3896, 10 [Ohio Ct. App. 2020] [internal citation omitted].)

Hearing Requirement

“Given the need for trial court action in order to effect the dismissal under Civ.R. 41(A)(2), the opposing party to the action is entitled to be heard on the motion. Failure to afford that opportunity can be reversible error.” (Logsdon v. Nichols (1995) 72 Ohio St. 3d 124, 129.)

Standard of Review and Burdens of Proof

“The decision to dismiss a case for failure to prosecute is within the sound discretion of the trial court.” (Carter v. Lorain, 2005 Ohio 2564 [Ohio Ct. App. 2005] citing Quonset Hut, Inc. v. Ford Motor Co. (1997) 80 Ohio St.3d 46, 47.) “Therefore, [the Court of Appeal's] review is limited to a determination of whether the trial court abused its discretion.” (Id.)

“Abuse of discretion is more than simply an error in judgment; it implies unreasonable, arbitrary, or unconscionable conduct by the court.” (Carter, id., citing Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.) “[Courts] must apply this standard of review with a heightened degree of scrutiny, however, because the trial court's decision ‘forever den[ied] a plaintiff a review of a claim's merits.’” (Carter, id., citing Jones v. Hartranft (1997) 78 Ohio St.3d 368, 372.)

The Court’s Decision

There is no abuse of discretion where, “[g]iven the nearly ten-year history of delay in [a] case and appellant's inability to comply with trial court orders regarding the case schedule and the threshold issue of product identification, [the reviewing court] cannot say that the trial court acted arbitrarily or unreasonably or displayed an unconscionable attitude in granting [Appellee's] Civ.R. 41(B)(1) motion due to appellant's failure to prosecute.” (Green v. Zep, 2020 Ohio 3896, 12-13 [Ohio Ct. App. 2020].)

There is “no abuse of discretion in the trial court's granting of the motion.... [where the] record indicates that, prior to the termination of the arbitration proceeding, [Appellant] had been allotted approximately two and one-half years to pay the requisite arbitration fees and prosecute its claim. Its failure to do so caused the action filed in the trial court to languish on the docket with no apparent end in sight. Only after the court was certain that the arbitration proceeding had been terminated, rather than merely suspended, did it grant the Civ.R. 41(B) motion to dismiss. Under these circumstances, the granting of the motion cannot be deemed arbitrary, unreasonable, or unconscionable, and the second assignment of error is overruled.” Robinson v. D.E.R. Const., Trial Nos. A-9504759, A-9505835, Appeal No. C-000102, at *1 [Ohio Ct. App. Nov. 15, 2000].)

Documents for Motion to Dismiss For Failure to Prosecute in Ohio

Sort By

13-CA-0022

4 pages

— © Q TIM NEAL, CLERK WAYNE COUNTY COMMON PLEAS COURT 107 W. LIBERTY ST., PO BOX 507, WOOSTER, OHIO 44691 PHONE: (330) 287-5591 FAX: (330) 287-5416 NINTH DISTRICT COURT OF APPEALS OCTORER 1, 2013 CASE NO.: CAPTION: FILING: 13-CA-0022 JUDITH ADAMS BRIEF OF APPELLEE, VS. JUDITH ADAMS GARY ADAMS COPY TO ALL COUNSEL “MAILED “ar, 1 Dep. Clerk, AppealsATTORNEYS AT LAW & Recupero Associates JUDITH A. ADAMS, IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT WAYNE COUNTY, OHIO C.A. No. 13CA0022…

Case Name 13-CA-0022 - Plaintiff Not Entered vs. Defendant Not Entered