Goracke v. BNSF Railway Co.
A-15-1023
| Neb. Ct. App. | Feb 7, 2017Background
- Plaintiff Travis P. Goracke sued BNSF under the Federal Employers’ Liability Act for injuries sustained in 2012; amended complaint filed Feb 7, 2014; BNSF answered Feb 24, 2014.
- The district court sent a 30‑day e‑notice of intent to dismiss for lack of prosecution on June 26, 2015; the case was dismissed July 28, 2015 and the clerk certified e‑service of the dismissal notice.
- Goracke moved to reinstate on Sept 25, 2015, stating his counsel never received any notice of the intent to dismiss or of the dismissal; counsel offered no documentary evidence at the reinstatement hearing but so testified in court.
- BNSF submitted an affidavit showing extensive defense activity (discovery, depositions, settlement offer) and that Goracke had not served discovery or taken depositions during the ~18 months the case was pending.
- The district court found counsel’s in‑court statement credible, noted there had been no prior dismissals, and reinstated the case under Local Rule 4‑10(C); BNSF appealed, arguing lack of good cause and prejudice via loss of statute‑of‑limitations defense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court abused its discretion reinstating a dismissal for lack of prosecution | Counsel did not receive the 30‑day notice; Goracke still wants to proceed; that constitutes good cause | Undisputed record shows Goracke did nothing to prosecute for 18 months; no evidence justifying reinstatement; reinstatement defeats BNSF’s statute‑of‑limitations defense | Affirmed: trial court did not abuse discretion; counsel’s credible statement that he did not receive notice and lack of prior dismissals constituted good cause to reinstate |
Key Cases Cited
- Jarrett v. Eichler, 244 Neb. 310, 506 N.W.2d 682 (1993) (district court’s vacatur of dismissal reviewed for abuse of discretion; plaintiff offered explanation for delay and reinstatement upheld)
- A. Hirsh, Inc. v. National Hair Co., 210 Neb. 397, 315 N.W.2d 236 (1982) (reversal where record lacked any indication supporting vacatur of dismissal)
- Roemer v. Maly, 248 Neb. 741, 539 N.W.2d 40 (1995) (refusal to reinstate upheld where plaintiff failed to receive notices due to counsel change/address issues and motion was governed by § 25‑2001)