Petition. Extent of Party's Personal Responsibility for Delay. Judgment. But we encourage parties to pursue diligent resolution of their cases by appropriate means, such as conducting discovery in a timely manner under the civil rules or pursuing alternative dispute resolution. Drug Court. See, e.g., Gill v. Gill, 455 S.W.2d 545, 546 (Ky.1970) (in reversing dismissal for lack of prosecution under abuse of discretion standard, recognizing that [e]ach case must be considered in the light of the particular circumstances involved and length of time is not alone the test of diligence.). motion to dismiss, and a motion to dismiss is not a responsive pleading. Motions to dismiss, motions for summary judgment, motions to strike, and motions under CR 12.02 shall be filed and served upon opposing party and/or attorney (s) at least 10 days prior to motion hour and accompanied by a memorandum of the grounds for the motion with citation of authorities relied upon, but not greater than 25 pages in length, x+ | To get started, you can download legal forms and self-help publications, find a list of common legal terms and contact the civil legal aid program that serves your region.. 0000072214 00000 n They claimed that any delay in obtaining medical records was unintentional and, apparently, due to health care providers' lack of cooperation. Docket. In a lawsuit, the harm caused to the one who is injured. Here, the relatively few discovery requests made and the plaintiffs' pattern of delay in responding to these requests support the trial court's findings of dilatoriness on the part of plaintiffs. Although we decline to adopt any specific set of factors that must be considered by trial courts, we note that other jurisdictions have listed other factors as possibly appropriate for consideration in determining the propriety of dismissing a case for lack of prosecution. Russell G. Vineyard, Note, Dismissal with Prejudice for Failure to Prosecute: Visiting the Sins of the Attorney Upon the Client, 22 Ga. L.Rev. 0000007274 00000 n Trial Court Did Not Abuse its Discretion in Dismissing Plaintiffs' Case for Lack of Prosecution, Given the Totality of the Circumstances. 16. Search Within. A list of cases scheduled to be heard in court on a specific day or week. Restitution. Is it sufficient to show that counsel for a plaintiff or a self-represented litigant has continued to work on a case in some manner, albeit reactively rather than proactively, to establish prosecution? I concur with Chief Justice Minton's opinion that the circumstances of this case weigh in favor of affirming the trial judge's dismissal of this action; and I agree that a trial judge's decision on whether to dismiss a case under CR 41.02 is not exclusively governed by the factors recited in Ward v. Housman, 809 S.W.2d 717 (Ky.App.1991). Although the trial court had actually granted summary judgment, rather than dismissing under CR 41.02 for lack of prosecution, the Court of Appeals in Ward found it more appropriate to review the judgment in favor of the defendant as a dismissal for failure to prosecute under CR 41.02(1)-possibly anticipating that such a motion might be filed upon remand. First Alert 24/7 Weather . By viewing the posts, contents and other information on this website, the reader understands there is no attorney-client relationship between the reader and the website/blog publisher and that it should not be used as a substitute for legal advice from a licensed professional attorney. The result that he got was more than what he asked for.). Motion to Dismiss Definition | Nolo The Court of Appeals cited Ward, carefully listing each Ward factor, and indicated that they provide guidance in ruling upon CR 41.02(1) motions. endstream endobj 27 0 obj <>stream Kentucky Summary Judgment & Related Termination Motions Vol. <<5EAE009BC1C63C42AC4D3781367CC77C>]/Prev 113864/XRefStm 2082>> They retained an attorney in New York, who, with the aid of local counsel in Kentucky, filed suit on their behalf against Karen and Flege in the Grant County, Kentucky, circuit court in 2001. Marshals Service to complete service. 0000072689 00000 n Designed by Elegant Themes | Powered by WordPress, Std of Review: Motion to Dismiss for failure to state a claim CR 12.02(f), Civil Procedure Protections for incarcerated defendants served in civil action addressed. 0000072805 00000 n To agree with or rule in favor of the partys request. An oral motion may be made during a hearing or trial, but motions are usually in writing and filed with the Office of Circuit Court Clerk. For the foregoing reasons, this Court affirms the decision of the Court of Appeals affirming the trial court's order dismissing for lack of prosecution. In June 2005, Karen filed a motion to dismiss for lack of prosecution, citing CR 41.02.3 Her memorandum in support of this motion argued that [t]his case has remained inactive since Flege had taken depositions in early 2004. Trial courts must make explicit findings on the record so that the parties and appellate courts will be properly apprised of the basis for the trial court's rulings; and the appellate courts can assess whether the trial court properly considered the totality of the circumstances in dismissing the case. Often a motion to dismiss is alleging that the claim should not proceed because of an issue unrelated to the facts. Garnishment. endstream endobj 1 0 obj <> endobj 3 0 obj <> endobj 4 0 obj <> endobj 5 0 obj <> endobj 6 0 obj <> endobj 7 0 obj <> endobj 8 0 obj <> endobj 9 0 obj <> endobj 10 0 obj <> endobj 11 0 obj <> endobj 12 0 obj <> endobj 13 0 obj <> endobj 14 0 obj <> endobj 15 0 obj <> endobj 16 0 obj <> endobj 17 0 obj <>stream 0000033583 00000 n A court that hears civil cases involving family issues, such as divorce, custody, parental rights, child support and adoption. 27. defendants memorandum in support of motion to dismiss If the questionable liability here of one of the two co-defendants were the sole factor considered, we might be apt to conclude that the trial court had abused its discretion. So some of the trial court's findings on prejudice seem generic or speculative. 3:14-cv-00774-jgh electronically filed edward musselman plaintiff v. robert king, et al. 0000024355 00000 n When only one parent gets legal custody, its called sole custody. at 92) and does not reference any specific analysis of the Ward factors by the trial court, it appears that the trial court likely failed to analyze all of the factors listed in Ward. Someone without enough money to support either himself/herself or family with the necessities of life and therefore cannot afford to pay certain fees required by the court. 0000006787 00000 n [United States Code], Section 362(a)(1) 8b (6) would seem to stay any action in the [Kentucky civil action]. The notice stated that the trial court would be informed when the bankruptcy stay was lifted. In other cases, the Court of Appeals has similarly reversed dismissals where the trial court's order does not reflect that it considered all relevant factors, such as those factors listed in Ward or Scarborough, but simply focused on a single dilatory act or a period of delay.18 This was consistent with our established precedent, which states that [e]ach case must be considered in the light of the particular circumstances involved and length of time is not alone the test of diligence.19 However, to the extent that other cases have held or suggested that all factors listed in Ward must always be fully discussed in all orders dismissing cases for lack of prosecution under CR 41.02, those cases are overruled.20. 28. 0000002281 00000 n For example, a garnishment may be issued to an employer to pay part of an employees wages to someone else to pay a debt or judgment.
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