“The efficiency and effectiveness of our judicial process depends on compliance by parties and lawyers with scheduling and other procedural orders by the court.” (See Ying Ji v. Heide (2013) 82 A.3d 1160, 1162.)
“The Vermont Rules of Civil Procedure allow a trial court to dismiss a case on account of the plaintiff's failure to pursue it, or because the plaintiff has not complied with a court order, including failing to attend a scheduled court hearing.” (See id; V.R.C.P. 41(b)(2) [For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant].)
“Vermont Rule of Civil Procedure 41(a) outlines the effects of a party's request for voluntary dismissal.” (See Watson v. Vill. at Northshore I Ass'n, Inc. (2018) Vt. 8, 45.)
“Specifically, the Rule provides that an action may be dismissed by the plaintiff without order of the court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs." (See id; V.R.C.P. 41(a)(1)(i).)
“Where, however, a plaintiff requests dismissal after the adverse party has answered or moved for summary judgment, an order of the court is required to dismiss the claim or action upon such terms and conditions as the court deems proper." (See id.)
“Additionally, [u]nless otherwise specified in the order, a dismissal under this paragraph is without prejudice." (See id.)
“Vermont Rule of Civil Procedure 41(b) allows a trial court to dismiss a case if the plaintiff fails to pursue it.” (See Cegalis v. Knutsen, No. 22-AP-280, at *3 (Vt. May 5, 2023).)
“We will uphold the court's decision to dismiss a case for want of prosecution unless an abuse of discretion is shown.” (See id.)
"Abuse of discretion requires a showing that the trial court has withheld its discretion entirely or that it was exercised for clearly untenable reasons or to a clearly untenable extent." (See id.)
It is well settled that “V.R.C.P. 41(b)(3) provides that unless the court in its order specifies otherwise, a dismissal under V.R.C.P. 41(b) (2) based on a failure of a plaintiff to prosecute or to comply with the rules or any order of court, shall operate as an adjudication upon the merits.” (See Cody v. Estate of Cody (1976) 134 Vt. 113, 114.)
It is also well settled that “under Rule 41(b)(1)(ii), a court may, by its own motion, dismiss any action where [a]ll parties against whom a judgment for affirmative relief is sought have failed to plead or otherwise defend as provided by these rules and the plaintiff has failed to request or apply for a default judgment within six months of the filing of the action.” (See Deutsche Bank v. Pinette (2016) 149 A.3d 479, 484.)
For full print and download access, please subscribe at https://www.trellis.law/.
Please wait a moment while we load this page.
Your subscription has successfully been upgraded.
Your content views addon has successfully been added.
No Worries!
Adding your team is easy
in the "Manage Company Users" tab
