Jack Nelson Jones Professional Association
December 26 - January 1, 2017
Stewart v. Michaelis, 2016 Ark. App. 588 (December 7, 2017)
This appeal comes from the St. Francis County Circuit Court, honorable Richard L. Proctor presiding. This case concerns dismissal for lack of prosecution pursuant Arkansas Rule of Civil Procedure 41.
The litigation began in 2005, when Robert Stewart filed a complaint against Gary Michaelis, and several other defendants, for malicious prosecution, abuse of process, defamation, and more. Stewart had apparently complained to the State Plant Board that Michaelis was flying a crop-dusting plane too close to Stewart’s house, which frightened his family; Stewart also said that chemicals released from the plane rained death on his fruit trees and other vegetation. Apparently Stewart uttered the words “shoot the plane” during a telephone to the State Board, but how the phrase should be taken was disputed. Michaelis, having learned about Stewart’s call to the Board, urged a criminal prosecution against him. Stewart’s civil complaint alleged, among other things, that Michaelis pressed criminal charges against him in retaliation for Stewart’s complaint to the State Plant Board.
A difficult discovery process ensued in the civil case. Eventually, the parties entered a confidentiality agreement; and the circuit court entered a protective order in March 2006. About two years later, in April 2008, the circuit court granted summary judgment to one of the defendants. In August 2008, the court notified the parties that the case would be dismissed under Arkansas Rule of Civil Procedure 41(b) unless good cause was shown why it should stay on the docket. Three days later Stewart responded in a letter that “Plaintiff is ready to try this matter. Please set this matter for a two day jury trial at the court’s earliest convenience.” The court set the case for a one-day jury trial to be held in May 2009. But the case was not tried because the court continued the matter on defendant Michaelis’s motion, ordered the parties to mediation, and required “the district court and circuit court records in issue [meaning the related criminal prosecution] be opened for its examination.” The circuit court further stated: “After the Court examines the [criminal] records in camera, the Court will determine who else may examine the records and then will define the limited purposes for which the documents may be used.” Meanwhile, Michaelis tried to collaterally attack court orders issued in the criminal cases against Stewart.
In October 2010, Stewart asked the circuit court to order the parties to mediation and to set a three-day jury trial. The parties continued to wrangle over issues. Michaelis moved for summary judgment in March 2011—and Stewart resisted the effort—but the motion was never decided. Four years later – 12 March 2015 – the circuit court issued a “Notice of Possible Dismissal Pursuant to Rule 41(b) of the Arkansas Rules of Civil Procedure.” Plaintiff Stewart responded by letter, acknowledging receipt of the Notice, and requesting that the matter remain on the Court’s docket and be set for trial at the Court’s convenience. About one month later, on April 24, the circuit court entered the dismissal order without prejudice for lack of prosecution, citing the fact the case was over ten years old and there was no evidence of activity in the previous two.
Stewart moved to vacate the order citing, among other facts, the unsuccessful December 2010 mediation and the still-pending 2011 summary judgment motion. The circuit court denied the motion and Stewart appealed.
On appeal, the Court began by analyzing Arkansas Rule of Civil Procedure 41, which provides that a case may be dismissed for failing to advance it when “there has been no action shown on the record for the past 12 months . . . unless on a stated day application is made, upon a showing of good cause, to continue the case on the court’s docket.” The rule is “a tool for trial courts to dispose of cases filed and forgotten.” Apart from the rule-based authority, circuit courts have the inherent power to dismiss such cases, but the Court noted that this appeal dealt specifically with a Rule 41(b) dismissal.
According to the Court, some state and federal courts use multi-factor tests to decide whether a dismissal for failing to prosecute a case was an abuse of a trial court’s discretion, but no Arkansas appellate court has expressly done so thus far. The Court remarked that that streak would not end with this case, though it did acknowledge Stewart’s invitation to apply such a test.
For whatever reason – good or bad – this decade-old case was a textbook definition of “protracted litigation.” Nevertheless, the Court stated that, given the specific procedural history, the circuit abused its discretion when it dismissed the case. For a number of years there was significant activity in the case. Although no party seemed to have requested a hearing on the pending March 2011 motion for summary judgment, or prompted the court to rule on it without a hearing, the fact remained that the court did not decide it before the case was dismissed under Rule 41(b). Stewart could have provided a more robust initial explanation why nothing had happened for so long when prompted to do so by the court’s most recent notice. Stewart did, however, respond quickly to the circuit court’s notice and unequivocally asked—for at least the third time since this case began—that a trial be scheduled. For its part, the circuit court had not prompted or ordered the parties to act (in any manner the record reflects) during the past two years by its own account, and perhaps as many as four years.
The Court explained that Rule 41(b) embodies the truism that a circuit court’s duty to manage its docket must be weighed against a plaintiff’s right to have his day in court. Given the record before it and its particular circumstances, the Court determined that the case should not have been dismissed. Reversed.