984 N.E.2d 699
Ind. Ct. App.2013Background
- From 2008–2010 Zavodnik filed 27 lawsuits against various defendants across several states and countries.
- Guzman and Richards were defendants in two original suits; Panayiotou joined a later suit.
- On March 2, 2011 Judge Oakes dismissed all 27 actions without prejudice under Trial Rule 41(E) for rule noncompliance and service failures.
- On March 1, 2012 this court affirmed dismissal of 24 suits (including Guzman and Richards) and reversed three.
- On April 24 and May 11, 2012 Zavodnik refiled new complaints against Guzman and Richards (Panayiotou joined) with allegations substantially the same as the original suits.
- Judge Dreyer dismissed the new complaints—Guzman with prejudice and Richards/Panayiotou sua sponte—for similarity to the previously dismissed actions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal of the new complaints was proper due to similarity to Rule 41(E) dismissals | Zavodnik contends filing anew in another court is permissible; no res judicata effect | Dreyer properly dismissed to avoid circumventing reinstatement under 41(E)/(F) | Yes; dismissal proper; reinstatement before Oakes required before refiling |
Key Cases Cited
- Zaremba v. Nevarez, 898 N.E.2d 459 (Ind.Ct.App.2008) (dismissal without prejudice has no automatic res judicata effect; re-filing implicated by Rule 41)
- Thacker v. Bartlett, 785 N.E.2d 621 (Ind.Ct.App.2003) (re-filed identical suit in another court; court affirmed dismissal to protect comity and efficiency)
- Zavodnik v. Gehrt, 2012 WL 697152 (Ind.Ct.App.2012) (appeal of trial court’s partial affirmance of dismissals under 41(E))
- Carter ex rel. CNO Fin. Group, Inc. v. Hilliard, 970 N.E.2d 735 (Ind.Ct.App.2012) (de novo review of Rule 12(B)(6) dismissal standard; affirm if sustainable on record)
- City of New Haven v. Reichhart, 748 N.E.2d 374 (Ind.2001) (standard for affirming trial court dismissal on any proper record basis)