Kimberly Smee v. Zachary Johnson, individually and as an agent of Northern Ag Services, Inc., and Northern Ag Services, Inc. (mem. dec.)
64A03-1511-CT-1904
| Ind. Ct. App. | Dec 9, 2016Background
- On September 3, 2009, Smee was in a car accident with Johnson, an employee of Northern Ag Services, Inc.
- Smee filed a complaint against Johnson and Northern on September 6, 2011.
- Initial attempts to serve summons and complaint in Sept–Oct 2011 were unsuccessful; service was not perfected until August–September 2014.
- Between May 2012 and July 2014 Smee’s counsel engaged in settlement negotiations with the defendants’ insurer, but there is no evidence Johnson or Northern themselves had actual notice.
- Defendants moved to dismiss for failure to prosecute under Ind. Trial Rule 41(E) on October 6, 2014; the trial court granted dismissal on September 30, 2015.
- Smee appealed, arguing (1) effecting service constituted resumption of diligent prosecution and (2) the 60‑day rule should be tolled because counsel was negotiating with the insurer.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether effecting late service cures prior failure to prosecute under T.R. 41(E) | Smee: Perfecting service resumed diligent prosecution and bars dismissal (McClaine rule). | Defendants: Delay in effectuating service was undue; service after long delay does not immunize the case from a timely T.R. 41(E) motion. | Court: Effecting service after lengthy, unjustified delay does not automatically resume diligent prosecution; dismissal affirmed. |
| Whether settlement communications with insurer tolled or excused delay under T.R. 41(E) | Smee: Negotiations with insurer justified or tolled the 60‑day inactivity rule. | Defendants: Negotiations with insurer do not show defendants induced inaction or had knowledge; tolling not warranted. | Court: Mere negotiations with insurer insufficient; no evidence defendants lulled plaintiff into inaction, so tolling denied. |
Key Cases Cited
- Lee v. Pugh, 811 N.E.2d 881 (Ind. Ct. App. 2004) (standard of review for dismissals for failure to prosecute)
- United Brotherhood of Carpenters & Joiners of Am. v. Merchandising Equip. Grp., 963 N.E.2d 602 (Ind. Ct. App. 2012) (purpose of T.R. 41(E) and plaintiff’s burden to move litigation)
- Geiger & Peters, Inc. v. Am. Fletcher Nat. Bank & Trust Co., 428 N.E.2d 1279 (Ind. Ct. App. 1981) (delayed service due to lack of diligence does not block a timely T.R. 41(E) dismissal even if service later perfected)
- State v. McClaine, 300 N.E.2d 342 (Ind. 1973) (resumption of diligent prosecution may bar dismissal if done before motion, but not controlling where delay lacked diligence)
- Paramo v. Edwards, 563 N.E.2d 595 (Ind. 1990) (defendant’s conduct must lull plaintiff into inaction to estop timeliness defenses)