*1
(2004)7
17C-5A-2(e)
statutory provisions
pursuant
made
Va.Code,
or
or
W.
proceeding,
hearing examin-
Mr.
procedure.
In
Clower’s
the Commissioner’s
unlawful
requires
First,
findings.
Va.Code,
17C-5A-2(e)
specific
required
three
§
make
er to
W.
“arrest-
that the
hearing examiner must find
lawfully arrest-
Mr. Clower’s have been
that
reasonable
had
ing law-enforcement officer
not.
ed—he was
to have been
person
believe the
grounds to
the circuit
Accordingly, we
conclude
alco-
driving while under the influence
reversing
in
did not abuse its discretion
court
hol____” Second,
hearing examiner must
order sus-
the Commissioner’s administrative
law-
person was
findings “whether the
make
operate a
Mr.
license to
pending
Clower’s
in-
an offense
fully placed under arrest for
Virginia.
in
vehicle West
motor
driving
of alcohol
volving
the influence
under
lawfully
custody
into
for the
...
was
taken
IV.
secondary test.”
administering
purpose
Third,
find-
Conclusion
hearing
must make
examiner
tests,
any,
adminis-
if
were
ings “whether
opinion,
in this
the reasons
forth
For
set
law].”
[relevant
in accordance with the
tered
Hamp-
judgment of the
Court of
Circuit
found,
Trooper
supra,
we have
Kessel’s
day
As
County,
the 15th
rendered on
shire
“justi-
was not
stopping Mr. Clower’s vehicle
2007,
November,
is affirmed.
Ohio, 392 U.S.
inception,” Terry v.
fied at its
Affirmed.
Further,
Trooper
form that Mr. had committed a Clower
believe
in violation of
traffic offense
misdemeanor
in Mr. Clower Supreme Appeals Court of we have placed under arrest for the reasons Virginia. West opinion circuit and the court discussed Legislative mandate8 Submitted Feb. 2009. properly followed the W.Va.Code, 29A-5-4(g) man- set forth —a 4,May Decided 2009. specifically requires date that Concurring opinion of Justice “reverse, modify” vacate the Commis- 5,May Workman or- the Commissioner’s sioner’s where upon findings founded and conclu- der was that were in of constitutional
sions violation Va.Code, 17C-5A-2(e) Syllabus Terry v. substantially § Sencin W. thal term. See diver, Point Legislature rewritten Our deci- 'shall', on this issue therefore limited sion is ("The language word the absence of Va.Code, application W. of the 2004 version of showing part contrary intent on the statute 17C-5A-2(e). § legislature, mandato be afforded a should connotation."). ry Legislature’s word "shall” in 8. The use of the (g) given mandatory meaning subsection
KETCHUM, Justice: In from Court appeal the Circuit County, we are to examine Kanawha asked court dismissed an order wherein *3 to Rule of the West pursuant a case Virginia for lack Rules Civil Procedure activity. record, carefully considering After parties, we arguments of the briefs and the its discre- find the circuit court abused 54]£ weeks after tion in forth activity in the As set the last case. below, dismiss- reverse circuit court’s we al order.
I. Background and Facts and plaintiff-below appellant, Jennifer The 8, 2002, Caruso, alleges that on L. November injured in an accident. she was automobile through her then-at- On October 2004— filed a torney, Tichenor —Ms. Caroso Terri appel- and against defendants-below lawsuit Trucking, lees M. Pearce and P&T Brian Inc., neg- it was defendants’ alleging that ligence injuries. her which caused Trucking Pearce and P&T Defendants plaintiffs com- joint filed a answer plaint filed a third- in November party complaint against third-party defen- Inc., and Quality Company, dants Machine Garry Additionally, K. Knotts. defendants interrog- Trucking P&T served Pearce and upon plaintiff. atories interrogatories on answers to the served her March Whiteman, Esq., Frances C. Whiteman the written After the answered Fairmonr,
Burdette, PLLC, WV, appel- by appellees discovery filed and served lant. Trucking, the various and P&T Pearce including attorneys involved the case— Gandee, Esq., & Stephen F. Robinson counsel, signed Ms. an Tichenor — McElwee, PLLC, WV, Clarksburg, appel- (which by agreed was the cir- Trucking, lees Brian N. and P&T Pearce 25, 2005) permitted July cuit which court on Incorporated. third-party complaint Seibert, Halidas, Esq., A. George Martin & adding Trucking P&T Pearce and L.C., Charleston, WV, appellee Joyce K. Hall; appellee Joyce K. third-party defendant Hall. until third-party complaint not filed Johnson, Kleeh, Third-party Esq., Steptoe A. October 2005. defendants Teresa & PLLC, Charleston, WV, appellees Quality and Mr. Knotts appellees Quality Machine Hall, Co., against Ms. who Gary K. then a cross-claim Machine Inc. and Knotts. filed result, against Quali- filed her own cross-claim but a firm then conviction that an abuse committed.”) ty Knotts. In March Machine Mr. discretion has been began appellees sending the various discov- III. ery requests appellees not to to other —but response plaintiff-appellant the last —and Discussion appellee discovery requests an to those
was filed in the record the circuit clerk on The West Civil July designed just, Procedure were to secure speedy inexpensive determinations ev 31, 2007, July On the Circuit Clerk of action, ery for all to the action. See County upon Kanawha served notice all W.Va. R.Civ.Pro. Rule 1. The rules: *4 parties that the case would be dismissed 41(b) procedures ... pursuant establish Virginia orderly to Rule of the West process by of civil cases' anticipated Rules Civil Procedure1 because “for more as of Ill, § year They W.Va. Const. Art. oper- than one there has been no order or jurisdiction ate in proceeding” aid of plaintiff unless the could estab- and facilitate the public’s just, in good speedy interest activity. lish cause for the lack of inex- pensive They determinations. vindicate Following hearing, by signed a an order rights by constitutional providing for the 12, 2007, October the circuit court dismissed justice administration of without denial or finding plaintiff the instant case that the delay required by as W.Va. Const. Art. good her counsel had failed to show cause for Ill, § 17. activity the lack of in the case. Dept. Huntington, Arlan’s Store Inc. v. of plaintiff, by attorney, ap- a new now Conaty, 893, 897-98, 253 S.E.2d peals the circuit court’s order. (1979). 525 integral part just, An speedy of this II. inexpensive system is the establishment of Standard Review of periods time within which actions must be We review a circuit court’s order taken, they if are to be taken at all. Rule inactivity a pursuant case for 41(b) of the West Civil of 41(b) Rule under an abuse of discretion stan provides may, Procedure that a circuit court dard. Mansy, We stated in Dimon v. 198 discretion, in its dismiss a ease when there 40, 46, (1996): W.Va. 479 S.E.2d 345 has been a lack of in the case for Traditionally, review, states, scope year. our more than one even The rule pertinent part: where reinstatement an [of action which is prosecute] timely dismissed for failure to is Any pending court which is an action sought, only is limited. It is where there year wherein for more than one there has a showing is clear of an abuse of discretion proceeding, been no or wherein proper. that reversal is plaintiff delinquent payment is in the “Only costs, where may, we are left with a firm convic- of accrued court in its discre- tion, tion that an error may has been committed order such action to be struck from legitimately docket; we thereby overturn a lower court’s dis- its and it shall be discon- cretionary Smith, ruling.” Covington may 213 tinued. The court direct that such 309, 322, (2003). W.Va. 582 S.E.2d published newspaper 769 order be in such also, Gibson, Intercity Realty See may may, Co. v. the court name. The court on 369, 377, (1970) motion, any reinstate on its trial docket (“Where rule, the law commits a determination to action dismissed under this and set may and his discretion is exercised aside nonsuit that be entered balance, judicial nonappearance plain- the decision should not reason of the of the tiff, reviewing entry be overruled unless the court is within three terms after actuated, nonsuit; not a desire to reach a different order of an order but III, pertinent 1. The text of Rule is set forth in the discussion in Section infra. case, made until whether shall be entered
of reinstatement any inquiries to his or her counsel about paid. are accrued costs during period the case status of may an action a court dismiss Before dormancy, other relevant factors 41(b), opportuni- notice and an under bearing good cause and on substantial given be all ty heard must to be prejudice. of record. amount In this the actual of time settled a dismissal “It is well dormancy involved in the case is failure to under circuit court scarcely year. The more than one current adjudication an on the prosecute operates as counsel concedes that for the and, by subsequent reinstated merits unless delay prosecution partly caused order, preju a dismissal is with such attorney’s vigor- failure former Mansy, Dimon v. dice.” Yet, ously pursue the the case. This has held that S.E.2d at 344. Court argues the circuit court abused its dis- sanction, “[bjecause the harshness of the good cretion it to find when failed cause prejudice consid dismissal with should be delay prosecuting her action. The only flagrant cases.’’ Id. appropriate ered plaintiffs argument appeal crux of on added). (Emphasis recognize “[W]e *5 be, good delay part, can cause for the in procedural grounds on is a dismissal based traced to circuit court’s failure to a the enter which runs counter to the severe sanction order, scheduling required by as is Rule general objective disposing of cases on the 16(b) of Civil [1998]. the Rules Procedure of Id., 45-46, at merit.” 479 S.E.2d Virginia Rule the West 16 of Rules of at 344-45. principal Civil the Procedure “is source of receiving After notice from written powers the ... and tools that are to courts a or a trial court that a case circuit clerk purpose use to fundamental achieve the artic- by the might be dismissed court for lack of ulated 1 the ... Rules Rule of of Civil 41(b), may a plaintiff under Rule just, securing speedy, ‘the Procedure: and plaintiff “good if the avoid dismissal shows every inexpensive of determination action ” suit, delay prosecuting the a Moore, cause” for proceeding.’ and James Wm. 3 Practice, and the fails to “substantial defendant show § Moore’s 3d Federal Edition 16.03 (2007). prejudice” delay. caused the This Court promotes concept a Rule 16 of active 3, cases, Syllabus part, Point judicial par- stated in of Dimon with management of the Mansy, supra, counsel, ticipation parties that: their of the and to swift, just inexpensive “reach a and resolu- going the [T]he bears burden of tion of The focus of litigation.” Id. Rule 16 good forward with evidence as to cause for litigants is “to familiarize the and the court action; the if the actually with the involved in issues a lawsuit cause, good does come forward with the parties accurately appraise so the can to the burden then shifts defendant to cases,” their disputes “remove extraneous prejudice allowing show substantial to it “expedite the from case” and determina- if proceed; the ease to the defendant does merits, thereby saving tion of the time and prejudice, show substantial then the bur- easing expense litigants and for the the bur- production den of shifts by facilitating the handling den on the courts proffered good cause establish congested Wright, of dockets.” Charles Alan prejudice outweighs the to the defen- Kane, Mary Kay Arthur R. Miller & Federal dant____ court, weighing the evi- [T]he § Practice Procedure: Civil 2d and good preju- and dence of cause substantial 16(b)2 dice, (1) goals, To should also consider the actual achieve these Rule man- ... dormancy involved in dates trial court “shall enter a amount of time that a (with 16(b) added): ing attorneys parties emphasis for the and Rule states unrepresented (b) parties, scheduling a confer- means, Scheduling Planning. Except in cat- and ence, telephone, egories exempted Supreme mail or other suitable of actions shall, scheduling Appeals, enter order that limits time: Court after consult- of
549 establishing time frames courts strive to have a scheduling scheduling order” should joinder parties, the amendment of for the of order within one to two months after completion discovery, of pleadings, the the defendant has filed an answer.” Frank- motions, filing generally and dispositive of al., Cleekley, Litigation lin D. et Handbook guiding parties toward a resolution Virginia on West Civil Procedure of Vickers, 214 rel. Pritt v. case. See State ex (3d. 2008).3 16(b)[2], Edition, § 439 210, S.E.2d 215 588 limits, “By fixing time the court’s schedul- (“Under 16(b), mandatory it Rule that trial ing litigants order serves to stimulate scheduling limits courts enter a order that inquiry narrow areas advocacy and join file parties, pleadings, the time to amend they truly those believe are relevant and motions, complete discovery.”); and hear and material.” Id. absence of Rule Schoolcraft, n. Elliott v. focus, scheduling “can result in lack of curiam) n. (per inefficiency, delays disposition.” (noting circuit court have that “the should Moore, James Wm. Federal Moore’s Prac- scheduling entered a order before consider- 16.10[2j. tice, § 3d Edition ing summary judgment.”). the motions for 16(b) requires We therefore hold that “[ujnder succinctly, Put judicial management active aof scheduling order[.]” courts must enter a a trial ... al., mandates that court “shall enter a Cleekley, Litigation Franklin D. ei scheduling establishing order” time frames Civil Handbook on West Rules of (3d 16(b)[2], Edition, joinder parties, for the the amendment of § Procedure at 438 2008). pleadings, completion discovery, dispositive motions, generally purpose “The order is guiding prompt, toward a fair and encourage pretrial management careful *6 cosNeffeetive resolution of the case. gaining in main- assist the trial court and taining liti- control over the direction of the Notwithstanding that Rule is manda- gation.” Id. one treatise As states: tory, the circuit court in this case failed to explicitly intended to 16 is encour- scheduling enter a order. In the absence of age judicial management active case of the a court-imposed scheduling setting order a development process and of trial in most completion discovery, deadline for Judges civil actions. must fix deadlines easy that it for asserts tasks, major completing pretrial attorneys to overlook the fact that the writ- judges encouraged par- and actively are discovery phase ten of the had been case ticipate case-specific designing plans in completed. plaintiff argues The that this positioning efficiently litigation possi- as as simple a lawsuit is not automobile accident motion, settlement, disposition by
ble for case, replete with and but is cross- third- or trial. claims, party discovery and numerous re- Moore, quests among all The parties. former James Wm. Moore’s Federal Prac- 3d, tice, (2007). Tiehenor, plaintiff, counsel for the Ms. as- § 16.02 Edition While mistakenly period a she that specify does not time in serted that believed which entered, scheduling discovery responses pending a must be “trial some still order were by join judge scheduling a To and A a other to amend failure issue pleadings; required by generally order Rule 16 is not motions; (2) (3) file To To and hear and by grounds, appellate deemed courts sufficient discovery. complete itself, by any significant relief. Because it scheduling may The also include: order probable that are more often is these failures (4) The date dates for or conferences before oversight than decision ... due to to deliberate trial, trial; conference, pretrial a final propose counsel take ihe initiative a should order, scheduling request scheduling (5) Any appropriate in cir- other matters conference, management whenever a case. cumstances of the with the failed to act in accordance has except A schedule not be shall modified Rule's mandates. judge. leave of the Moore, Practice, 3d James Wm. Moore’sFederal however, noted, 16.10[21 It should be that: Edition % if the dismiss- plaintiff would suffer harm the appellees, and various among the were to stand. al of her case discovery had meandered written that realize mid-July It was not a conclusion 41(b), dismissing case under Rule When notice at the clerk served until integrity of the preserve the in order to saying the circuit July end 2007— supra, Mansy, process, Dimon v. judicial inactivity— the case to dismiss intended interests must be that various makes clear attempted to move counsel plaintiffs that including judicial interest in effi- weighed plaintiff contends forward. the case to have their ciency, rights plaintiffs schedul- that, circuit court had the court, might be day any prejudice diligently order, have then ing she would defendants, value of de- and the suffered moved her case order and abided Considering all ciding on their merits. cases trial. toward factors, including the absence of these from the circuit mandatory reviewing the record carefully After that, court, in this Court finds us, firmly with we are left presently before moving forward with interest has been com that an error conviction judicial effi- outweighs concerns her claim the inac are not convinced mitted. We defendants ciency any prejudice that the egregious as case was so tivity in the instant may have suf- third-party defendants of dismissal. the harsh sanction to necessitate cir- conclude that the therefore fered. We for failure to dismissing an action Because dismissing its discretion cuit court abused sanction, harsh is such a prosecute action. this civil only “fla appropriate prejudice with is Mansy, grant” Dimon cases. IV. at 344. at Conclusion authority to issue dis court’s “[A] limited must be as a sanction missals court’s October Accordingly, the circuit necessity giving to its rise circumstances and plaintiffs case for 2007 order Dimon, exercise.” reversed, is and the case lack of is of dismissal 344. “The sanction S.E.2d at proceedings. further remanded for prosecution prejudice for the lack *7 and Remanded. Reversed could, private litigant and severe to the most dignitary excessively, disserve the if used disqualified. BENJAMIN Chief Justice invoked. It remains purpose for it is which digni jurisprudence that the in our constant HATCHER, JR., sitting Judge JOHN W. respect the accord ty of a derives from court assignment. by temporary judgment.” ed its Id. McHUGH DAVIS and Justice Justice case, although plaintiffs the former In this dissenting opinions. dissent and file diligent, outright the than counsel was less action carries seri- plaintiffs dismissal of the concurs and files a WORKMAN Justice the lack implications and —because ous concurring opinion. scarcely year— than one more was Further, persuad- J., by dissenting, joined we are Justice unwarranted. was DAVIS ed that in the absence McHUGH: court, beyond by it is the dis- proceeding, the trial court In this could case such as this complex reason that a plaintiffs the case under missed reaching a final reso- easily from be detoured of Civil Proce- the of West lution. reversed the majority opinion has dure. The that the ruling it found court’s because suggest- trial Although appellees have now the good cause for not had established plaintiff the one- they prejudiced be ed that would out For the reasons set dismissing the case. reasonably find that year delay, cannot we below, I dissent. outweigh the prejudice great such so as to omitted). Complaint, quotations Plaintiff Filed the the and citation After The trial Nothing (1) for the Case She Did court dismissed the action for failure to (2) Almost Three Years prosecute inactivity for than more year.3 dismissing one The order the action this case revealed the The record good held “that counsel failed to establish plaintiff against this action defen- filed the why cause as to the case had not prose- been October dants on In November cuted Plaintiff during pendency the its October the defendants filed 2004 and and, specifically, failed good to establish third-party third-party complaints against why cause case had pi’osecuted the not been Subsequent filing of to the defendants.1 during year immediately preceding the one place third-party complaints, discovery took Notice of the of Dismissal.” only third-party that involved in the case plaintiffs third-party and the defendants. majority opinion The erroneously focused discovery filing be- The last circuit court exclusively upon “inactivity for more than third-party plaintiffs third- tween the and the year” one for basis dismissal. To ex- some party July occurred in of 2006.2 defendants tent, merely if this case involved the “inactiv- 31, 2007, July ity year” the trial issued a ground
On court more than one dis- missal, plaintiffs ease un- might agree notice of dismissal I have been inclined to 41(b). der The trial did this with the majority resolution reached because, However, the date that filed plaintiff opinion. from this ease also concerned a 12, 2004, action, her October to the date that prosecute, failure to which is a much broader dismissal, issued its the trial court notice of ground case. The 31, 2007, any July plaintiff take failed to specifically court’s order found dis- that “no despite action in the the fact affirmative ease covery was initiated the Plaintiff since third-party litigants vigorously that the had Complaint filed in October In 2004[.]” discovery against words, conducted each other. other this is not a case where plaintiff begun discovery had subsequent correctly It has been observed thereto, neglected the case year. for over a grounds are four [t]here Rather, her this case filed 41(b): (1) action under Rule complaint simply nothing then her while (2) prosecute, failure of languished nearly in the trial court for comply with the failure of years. three court, (3) inactivity order of rules or year, plain- than for more one properly To evaluate the trial or- court’s delinquent payment tiff is of accrued der, majority opinion had to look at both court costs. 41(b). grounds for dismissal under Rule Moran, “inactivity year” Hoover v. n. than ground for more one (internal upon filings 719-20 n. 11 for dismissal was based the last *8 latter, showing 1. The is clear in the the record that between conduct of the latter does not em- 12, complaint, types may date of the October brace all of the of conduct that come 2004, third-party complaints the dates the and under the former. 22, 13, filed, 2004, Moran, 11, 112, were 2005, November and October 662 Hoover v. 120 n. activity plaintiff 711, (2008) (internal did not have in the the quota- S.E.2d 719-20 n. 11 omitted). case. tions and citation It been has further noted federal courts that discovery third-party plaintiffs 2. The between the prosecute is in Rule DQailure to not defined third-party place even the defendants took 41(b). evidence It can itself either in an action though scheduling order had not been lying significant activity dormant with no to court. the trial pattern dilatory move it in a of The or tactics. consist, may example, groundless latter for of that, recognized has This Court motions, requests repeated for continuances extent!,] persistent filings papers. of prosecute” late court ordered "failure [t]o some to "inactivity may year” overlap. Such warrant after for more than conduct dismissal one months, merely may grounds between a matter of out The distinction the two stretch years. prose- period lies in the fact to over a of dismissal that "failure 37, "inactivity Lyell Corp. Corp., broader than than v. F.2d cute” is for more Theatre Loews 682 Cir.1982) (2nd (citations omitted). year.” may While the the one former include 42-43 552 years being prosecuted); five third-party litigants. This basis for almost without
by the
Inc.,
Group,
in that it allowed the
No.
was lenient
v. Casual Corner
dismissal
Bielinski
activity
bootstrap
(TPG),
onto the
plaintiff to
2012622
99 Civ. 693
2002 WL
third-party
place
taking
(S.D.N.Y.
30, 2002) (same;
between the
was
Aug.
pending
case
However,
the “failure to
under
litigants.
legal
years).
longstanding
over three
A
dismissal,
the trial court
basis
prosecute”
“[t]he
adhered to
this Court is that
maxim
looking at all of the
in fact
was
diligent, not
law aids those who are
those
in the
from the date the
had occurred
case
Dimon,
sleep upon
rights.”
198
who
their
filed
date the Rule
complaint was
to the
(internal
48,
at
479
at 347
W.Va.
S.E.2d
During this
notice was issued.
omitted).
quotations and citation
“We have
frame,
plaintiff
time
the
broader
much
mean
explained
principle
of law to
nothing in the case.
careless,
attorneys
[do]
when
are
Cleckley
...,
in Dimon v.
made clear
they
Justice
to their
in court
attend
interests
40,
(1996),
553 documents) ery request upon foregoing, of In (production McHugh view Justice any together respectfully service of and I defendant with dissent. of complaint or after service
summons and
Cleckley,
D.
J.
process.” Franklin
Robin
WORKMAN, J., concurring:
Davis,
Palmer, Jr., Litigation
J.
& Louis
(Filed
2009)
May 5,
Virginia
West
Handbook on
Rides
Civil
2008).
34(b),
(3d
§
ed.
See
Procedure
833
I
with
majority
concur
that the Plain-
duna
Texas
on
&
also Or
v.
Comm’n Alcohol
inactivity
tiffs
in this case was not sufficient-
(5th
249,
Abuse,
Drug
Fed.Appx.
220
250
ly lengthy
egregious
to warrant dismissal.
41(b)
Cir.2007) (affirming Rule
dismissal However, I
majority’s
cannot concur with the
where,
filing complaint, plaintiff
no
after
took
partly
conclusion
the lower court was
a
years).
action in
for four and
half
ease
responsible
delay
for the
in this case because
freely
discovery
In view of the
available
yet
it
scheduling
had not
a
order.
rules,
simply
wrong
tools under our
it is
compilation
The most recent
of Circuit
majority opinion
to disturb the trial
County filings
Court
demonstrates that
41(b)
court’s Rule
dismissal order. The
year
6,354
calendar
2008 there were
cases
years
this case had almost three
County
filed in the Kanawha
Circuit Court.
rules,
discovery
to invoke our
and she failed
total,
Of that
judge handling
this
justified
to do so. This conduct
the trial
matter had 917 of
assigned
the eases filed
to
prosecute.
court’s
to
dismissal
failure
her. West
Rule of Civil Procedure
hardly
“There could
be a clearer
provides
shall,
16
that “the
after con-
Cosmetics,
& H
prosecute.”
failure to
M
sulting
attorneys
for the
Inc.,
Fragrances,
v.
Inc.
102 F.R.D.
Alfin
any unrepresented parties, by
scheduling-
265,
(E.D.N.Y.1984).
267
See also
v.
Salmon
conference, telephone, mail or other suitable
(5th Cir.1952)
Stuart,
City
majority opinion] adopts encourages here dil-
atory diligenee[.]” behavior rather than Inc., City Hosp.,
Gaither J., (Maynard,
dissenting). my Consequently, respect for *10 precludes rule of from joining law me
majority opinion.