In contrast to this misunderstanding, we hold that the propriety of the trial court's ruling does not necessarily hinge on its discussing the six particular factors listed in Ward. We Address Only CR 41.02 Dismissals, Not CR 77.02 Dismissals, in this Opinion. motion to dismiss, and a motion to dismiss is not a responsive pleading. [Record No. We further note that at the time of the accident, Brian and Amy had not yet married, so her name was then Amy Page. 0000058021 00000 n Applying the totality of the circumstances test in the case at hand, we conclude that the trial court properly weighed the totality of the circumstances (including the weighing of relevant concerns listed in Ward and other factors not listed in Ward) and did not abuse its discretion in dismissing this case for lack of prosecution. And we construe recent Kentucky cases as offering guidelines for trial courts on pertinent factors for consideration when confronted with a lack-of-prosecution motion under CR 41.02, rather than as establishing a formula to be applied mechanically. Rule 12.06 - Motion to strike. When only one parent gets legal custody, its called sole custody. PDF Memorandum in Support of Motion to Dismiss ***** Introduction 30. Allegedly, Flege first heard of some prior injuries at Brian's deposition and was unable to obtain medical records relating to these injuries from medical providers, who stated that the records were too old to be available. Victim Information and Notification Everyday (VINE), Petition for Domestic Violence/Interpersonal Protective Order, Petition for Expungement of Misdemeanor or Traffic Offense, Civil Motion for Waiver of Costs and Fees, Petition & Application for Guardian/Conservator of a Minor, Eviction Relief Fund: How to Apply (English), Eviction Relief Fund: How to Apply (Spanish), Your Day in Court: A Self-Represented Litigants Guide to the Kentucky Courts, Guide to Basic Kentucky Probate Procedures, Kentucky Court of Appeals Basic Appellate Practice, Kentucky Court of Justice: The Judicial Branch at a Glance, Tips to Avoid Disaster-Related Legal Issues. western district of kentucky, at louisville case no. Perhaps the plaintiffs understandably wished to resolve coverage issues before investing further time and money in trying to resolve such matters as liability on their claims. A court that hears civil cases involving family issues, such as divorce, custody, parental rights, child support and adoption. 1987). A document prepared by an attorney or party and filed with the court. %PDF-1.4 % Black's Law Dictionary (8th ed.2004) defines dilatory as [t]ending to cause delay .. Kentucky Court Rules | Rule 12 - Defenses; Objections - Casetext [Record No. Written questions sent by one party to another as part of discovery. Although Brian and Amy claim that the trial court did not properly consider the facts of Brian's home incarceration and a medical authorization for Flege to obtain Brian's medical records directly from the medical providers in assessing their personal responsibility for this matter, we note that they do not affirmatively allege that they had no way of obtaining the medical information for the whole period of delay because of Brian's incarceration,24 nor do they address whether despite any medical authorization, access to the medical records might simply be barred because of the age of the records by that point. In lieu of an answer, Thompson Hine filed a motion to dismiss pursuant to Kentucky Rules of Civil Procedure (CR) 12.02, arguing the complaint was not timely filed and otherwise failed to set forth a cognizable claim for relief. J. Having granted discretionary review to clarify for the bench and bar when a motion to dismiss for lack of prosecution may properly be granted, we acknowledge that proper consideration of such motions cannot be reduced to a simple formula because: There is no absolute right to dismissal for a plaintiff's failure to prosecute and no exact rule can be laid down as to when a court is justified in dismissing a case for the plaintiff's failure to prosecute or for delay in prosecuting his or her action; each case must be looked at with regard to its own peculiar procedural history and the situation at the time of dismissal. Considering that the factors listed in Ward are cited with great frequency in cases involving motions to dismiss for lack of prosecution, it is interesting to note that the factors appear as dicta in the opinion because no such motion to dismiss was actually made in Ward.12 Rather, the trial court, acting on its own motion, had granted a summary judgment in favor of the defendant as a sanction for the plaintiffs failure to comply with discovery orders. 31. An agreement reached between the parties to resolve the dispute. They can also verify any attachments. A decision or sentence imposed by a judge. Witness. Summons. Trial Court Did Not Abuse its Discretion in Dismissing Plaintiffs' Case for Lack of Prosecution, Given the Totality of the Circumstances. We held very recently in Miller v. Commonwealth, 283 S.W.3d 690, 702 (Ky.2009), quoting the United States Supreme Court in Barker v. Wingo:33. Because the opinion of the Court of Appeals characterizes the trial court's order as not detailed (id. the court had sustamed the defendant's motion to dismiss and had so ordered.