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Walser v. Mauzy4/1/2005
al court must take care in analyzing the circumstances and must justify the extreme action of depriving the parties of their trial." Each case must be considered in the light of the particular circumstances involved and length of time is not alone the test of diligence. Factors relevant in considering whether a case should be dismissed for lack of prosecution include: "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) meritoriousness of the claim; 5) prejudice to the other party; 6) alternative sanctions."
The Walsers argue that the trial court did not consider any of these factors and only relied on the length of the delay in reaching its decision to dismiss the complaint. But while the trial court's order is not detailed, we conclude that the circumstances of this case justified dismissal of the Walsers' complaint. The trial court did not find that the Walsers caused these delays in bad faith. However, the Walsers have had a history of dilatory conduct since the remand and they were primarily responsible for all of the delays. The Walsers were late in responding to some of Mauzy's discovery requests and they failed to respond to others. The IME was rescheduled four times over a period of six months, mostly due to Paula Walser's actions.
Moreover, despite numerous opportunities, the Walsers have failed to show that they took any significant steps in moving their case to trial between February 2002 and December 2003. During the interim, the Walsers' physician and expert witness died, thus requiring further delay. As a justification for further delay, the Walsers cite to new and old health problems, the death of their physician, and difficulty in finding expert witnesses. But as the trial court noted, " hile the Court understands that the reasons cited by Plaintiff would cause some delay, they should not have caused a delay of this magnitude, particularly in a case that was filed almost TEN years ago. Some of the anticipated concerns of Plaintiffs (death of witnesses) are an anticipated result of such an old case."
Finally, the Walsers have never indicated when they will be ready to proceed to trial on their claims. At some point, a plaintiff must go forward with litigation to a final disposition. The Walsers have shown themselves unwilling or unable to do so in this case. Under the circumstances, we agree with the trial court that the Walsers failed to show good cause for the delays in this action. Consequently, the trial court did not abuse its discretion by dismissing their complaint with prejudice.
Accordingly, the February 20, 2004, order of the Jefferson Circuit Court dismissing the Walsers' complaint is affirmed.
ALL CONCUR.
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