NINA M. VOZNIAK,
Plaintiffs Below, Appellants
Defendants Below, Appellees
Honorable John L. Waters, Judge
Civil Action No. 89-C-169
Filed: February 18, 1994
W. Henry Lawrence, IV
Jacqueline A. Wilson
Steptoe & Johnson
Clarksburg, West Virginia
Attorneys for Appellants
J. Michael McDonald
Stephen F. Gandee
Robinson & McElwee
Clarksburg, West Virginia
Attorneys for Appellees
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
"Under W. Va. R.Civ.P. 41(b), in order to reinstate a cause of action which has been dismissed for failure to prosecute, the plaintiff must move for reinstatement within three terms of entry of the dismissal order and make a showing of good cause which adequately excuses his neglect in prosecution of the case." Syllabus Point 1, Brent v. Board of Trustees of Davis & Elkins College, 173 W. Va. 36, 311 S.E.2d 153 (1983).
The appellants and plaintiffs below, Edmond R. and Nina
M. Vozniak, appeal the involuntary dismissal under Rule 41(b) of
the West Virginia Rules of Civil Procedure of their personal
injury suit on January 11, 1993. The suit was filed on October
12, 1989. Both sides engaged in discovery by way of
interrogatories and depositions of the parties. The last
deposition was taken on December 18, 1991.
During this period of time, there had been some
settlement discussions. The plaintiffs state that the
defendants' insurance carrier paid the property damage claim on
their motor vehicle. However, according to the plaintiffs'
attorney, the plaintiffs were not given any notice that defense
counsel handling the case left the firm and new defense counsel
from another firm took over.See footnote 1 This change occurred during the
period that plaintiffs had submitted an offer in settlement.
We have recognized under the language of Rule 41(b),
that where there is an involuntary dismissal, a motion to
reinstate must be made within three terms of the dismissal order accompanied by a showing of good cause. As we stated in Syllabus
Point 1 of Brent v. Board of Trustees of Davis & Elkins College,
173 W. Va. 36, 311 S.E.2d 153 (1983):
"Under W. Va. R.Civ.P. 41(b), in order to reinstate a cause of action which has been dismissed for failure to prosecute, the plaintiff must move for reinstatement within three terms of entry of the dismissal order and make a showing of good cause which adequately excuses his neglect in prosecution of the case."
In Evans v. Gogo, 185 W. Va. 357, 359, 407 S.E.2d 361, 363 (1990), we pointed out a longstanding corollary to a Rule 41(b) dismissal, where we quoted this language from Gray v. Johnson, 165 W. Va. 156, 163, 267 S.E.2d 615, 619 (1980): "'Involuntary dismissal for failure to prosecute should only occur when there is lack of diligence by a plaintiff and demonstrable prejudice to defendant. (citations omitted)." We also went on in Evans to point out that in determining whether there was good cause for reinstatement of a case after a Rule 41(b) dismissal that such determinations of "good cause and prejudice must be made . . . after a careful examination of the record." 185 W. Va. at 359, 407 S.E.2d at 363.
We determine that the trial court erred in granting a
Rule 41(b) dismissal. We note first that the dismissal came one
year and twenty-four days after the last discovery deposition was
taken. Rule 41(b) allows an involuntary dismissal only after no activity has been taken in a case for more than one year. Thus,
the time period had barely passed before the dismissal occurred.
Second, we find that the factors in Gray were not
considered. It cannot be said that there was a lack of diligence
on the part of the plaintiffs in view of the discovery undertaken
and the initiation of settlement procedures. Furthermore, the
defendants have failed to demonstrate any prejudice which would
result from the reinstatement of the case.
For the foregoing reasons, the judgment of the Circuit
Court of Taylor County is reversed and the case is remanded for
further proceedings consistent with this opinion.
Reversed and remanded.
Footnote: 1The record in this case is meager because the circuit court, after dismissing the case, refused to set a hearing on the plaintiffs' motion to reinstate the case as permitted by Rule 41(b) of the Rules of Civil Procedure.