Smith v. Cunningham et al
Filing
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OPINION AND ORDER DENYING 4 MOTION to Dismiss filed by Kenneth Cunningham, Kaiser Transport, Inc. Signed by Judge William C Lee on 2/15/2018. (lns)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
KENNETH SMITH,
Plaintiff,
v.
KENNETH CUNNINGHAM and
KAISER TRANSPORT, INC.,
Defendants.
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Case No. 1:17-CV-471
OPINION AND ORDER
This matter is before the Court on the motion to dismiss filed by Defendants Kaiser
Transport, Inc., and Kenneth Cunningham (ECF 4). The movants submitted a memorandum in
support of their motion (ECF 5), Plaintiff Kenneth Smith filed a response in opposition to the
motion (ECF 9), and Defendants filed a reply (ECF 10). Smith filed some additional documents
that are relevant to the motion to dismiss, which are discussed below. These documents were
filed several weeks after Smith filed his reply brief, the last one on January 4, 2018. The
Defendants have not objected or otherwise responded to them, so this matter fully briefed and
ripe for resolution. For the reasons discussed below, the motion is DENIED.
DISCUSSION
Kenneth Smith filed this lawsuit in the Circuit Court of Steuben County, Indiana, on
January 23, 2017, alleging that Kaiser Transport and its employee, Kenneth Cunningham, are
liable to him for personal injuries he suffered as a result of a motor vehicle accident that occurred
on February 5, 2015. Complaint (ECF 6), p. 2. Smith and Cunningham were driving semi tractortrailers at the time of the accident and Smith alleges that Cunningham was “acting within the
scope of his employment . . . with Kaiser Transport” when “he failed to see the Plaintiff’s vehicle
and caused a serious collision.” Id., p. 2. Smith asserts that the accident was the result of
Cunningham’s negligence, which can be imputed to Kaiser under the doctrine of respondeat
superior, so he sued both Defendants seeking compensation for his injuries. Id., generally.
Defendants Cunningham and Kaiser argue in their motion that this lawsuit should be
dismissed because “[u]nder Indiana law, the plaintiff has wholly failed to properly serve the
defendants. As a result, the Court has no personal jurisdiction over the defendants and the Court
should dismiss the case pursuant to Ind. Trial Rule 12(B)(2), (4) and (5). In addition, the plaintiff
has taken no action to prosecute his case for at least ten months after filing it. As a result, the
Court should dismiss the case pursuant to Ind. Trial Rule 41(E) and Fed.R.Civ.P. 41(b).”
Defendants’ Memorandum, p. 3. In short, Cunningham and Kaiser argue that Smith has been
dilatory in pursuing this litigation–having done almost nothing, they contend, since filing the
case last year–and as a result should be prohibited from doing so. Smith’s attorneys respond by
stating that they used due diligence in trying to effectuate service on both Defendants and that
any delay was the result of logistical issues or a possible misunderstanding between counsel. In
any event, that is the issue: whether Smith was dilatory in pursuing this lawsuit due to his failure
to serve summons on Defendants in a timely fashion and, if so, whether that dilatory conduct
warrants dismissal of his lawsuit.
According to the Defendants, Smith failed to serve them with summons when he filed
this suit in state court. Memorandum in Support, p. 1. They note that the state court docket “does
not reflect that the plaintiff ever attempted to serve either defendant with the original summons
and complaint.” Id. (referencing ECF 5-1, Exh. A, Chronological Case Summary). When Smith
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finally got around to attempting to serve Defendant Cunningham, which the Defendants claim he
didn’t do until August 3, 2017, the alias summons he filed indicated that it should be served at an
address in Indianapolis. But while that summons was indeed left at the address by the Sheriff, the
Defendants contend that “Mr. Cunningham has never resided at the [Indianapolis] address. . . .
On the date of the accident and continuously up until the present day he has resided at the address
listed on the police report, namely [in] Saint Paul, Nebraska. . . . As a result, Cunningham has
never been served with the summons and complaint in this case.” Id., p. 2 (referencing ECF 5-4,
Exh. D, Affidavit of Kenneth Cunningham, and ECF 5-5, Exh. E, Police Report).1 The
Defendants argue that since “the complaint and summons were never properly served upon
Cunningham . . . the Court never acquired personal jurisdiction over him such that the Court
should dismiss the case against Cunningham pursuant to Ind. Trial Rule 12(B)(2), (4) and (5).”
Id., p. 5.2 The Defendants also argue that this Court should dismiss Smith’s claims against Kaiser
Transport–again for lack of personal jurisdiction–since “the docket does not reflect any attempt
whatsoever to serve the summons and complaint upon Kaiser. In addition, Kaiser has no
documentation that it was ever properly served. As a result, the Court never acquired personal
1
The Defendants argue in their memorandum that the Sheriff’s method of service was
defective for other reasons, too, but it doesn’t matter since it is undisputed that Cunningham had
no connection to the Indianapolis address.
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The Defendants state that the Indiana Trial Rules apply since this case originated in state
court and was pending there when service was attempted, so they seek to have it dismissed under
Indiana Trial Rule 12(B) for lack of service and personal jurisdiction, and Indiana Trial Rule
41(E) for failure to prosecute. Memorandum in Support, pp. 2-3. The Defendants also cite
Fed.R.Civ.P. 41(b), the federal version of the state rule, in support of their motion. This Court’s
decision on the motion to dismiss is the same regardless of which rules apply (and the Court will
discuss both, given that Defendants rely on both), especially since Indiana Trial Rules 12(B) and
41(E) are mirror images of Federal Rules 12(b) and 41(b), both in terms of their purpose and
their application.
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jurisdiction over Kaiser such that the Court should dismiss the case against Kaiser[.]” Id., pp. 56.
Finally, the Defendants argue that the case should be dismissed due to Smith’s overall
lack of diligence in pursuing it, of which his allegedly faulty and untimely attempts at service are
just examples. The Defendants contend that “[t]he plaintiff not only failed to comply with the
Indiana Rules of Trial Procedure by failing to properly serve the defendants, the plaintiff also
took no action whatsoever to prosecute the case for at least 10 months thereafter. Under these
circumstances, the Court should dismiss the case pursuant to Ind. Trial Rule 41(E) and
Fed.R.Civ.P. 41(b).” Id., p. 6.
The Defendants’ arguments appear pretty solid standing alone, especially since Smith
concedes that there were problems with service of process. But Smith counters those arguments
by stating that he attempted to effectuate service of process on both Defendants by way of
certified mail sent just four days after the case was originally filed. Plaintiff’s Brief in
Opposition, pp. 1-2 (referencing ECF 9-2, Exh. B, Copies of Summons, and Exh. C, Certified
Mail to Kenneth Cunningham). Furthermore, those original summons both contained proper
addresses for both Defendants, including Cunningham’s address in St. Paul, Nebraska. Id. So
what went wrong? According to Smith, the problem began with the U.S. Postal Service:
Plaintiff’s counsel checked the status of service on March 15, 2017, April 17,
2017, and June 20, 2017, by monitoring the USPS tracking online page for both
defendants, however, they continued to say, “in transit.” (See Ex. C. and D.) On
June 20, 2017, Plaintiff’s attorney performed a background check on defendant
Kenneth Cunningham which revealed another possible address . . . [in]
Indianapolis, Indiana, in addition to the . . . St. Paul, Nebraska address. (Attached
as Ex. E.) Upon belief that defendant Cunningham may have moved, Plaintiff
issued an alias summons for service by Sheriff. (Attached as Ex. F.)
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Id., p. 2. The exhibits to which Smith refers, which support his factual assertions, include a USPS
Tracking form dated February 2, 2017, indicating that certified mail sent to Kenneth
Cunningham was “in transit” (ECF 9-3, Exh. C); a USPS Tracking form dated March 8, 2017,
indicating that certified mail sent to Kaiser Transport was “in transit” (ECF 9-4, Exh. D); and a
copy of the results of an online “background check” on Kenneth Cunningham that lists a
“possible address” for him in Indianapolis (ECF 9-5, Exh. E). If Smith’s counsel did anything
more to investigate the curious, months-long delay in the delivery of two certified mail items
other than check on them online three times over the span of six months (from the time they were
posted on January 27 until counsel took further action on June 20) he doesn’t share that. Anyway,
Smith’s counsel represents that on June 20 he discovered the possible alternative address for
Cunningham in Indianapolis after “perform[ing] a background check on defendant Kenneth
Cunningham[.]” Id., p. 2. Plaintiff explains that “[u]pon belief that defendant Cunningham may
have moved, Plaintiff issued an alias summons for service by Sheriff[]” at the Indianapolis
address. Id. (referencing ECF 9-6, Exh. F, Alias Summons). About six weeks after this discovery,
a delay that also goes unexplained, counsel “attempted to serve Mr. Cunningham by Sheriff on
August 3, 2017.” Id., p. 3. That attempt, of course, was for naught.
About three more weeks went by until, according to the Plaintiff, the following email
communications were exchanged:
On August 18, 2017, Plaintiff’s counsel received electronic communication from
Michael Terwilliger indicating he would be representing defendants and
requesting a copy of the Complaint along with Plaintiff’s medical bills and
records. Plaintiff’s counsel’s paralegal responded on August 21, 2017, that service
was still being attempted by Sheriff on [Cunningham] and a file-stamped copy of
the Complaint, along with Plaintiff’s medical bills and records were provided to
Mr. Terwilliger. On August 30, Mr. Terwilliger responded by requesting proof of
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service from the Sheriff so that he could appear for [Cunningham]. . . . On
November 13, 2017, Plaintiff’s counsel received notice of defendants’ application
to remove this matter from the Steuben Circuit Court to this Court.
Id. Plaintiff attaches a copy of these email communications, which confirm his factual recitation.
Id. (ECF 9-7, Exh. G, Email Communications). Indeed, as Plaintiff represents, the August 18
email Mr. Terwilliger sent to Plaintiff’s counsel states that “we were retained to represent Kaiser
Transport and its driver, Kenneth Cunningham[.]” Id., ECF 9-7, p. 3. The email then requests
proof of service on Cunningham and states that “service has [not] yet been returned on Kaiser
Transport.” Id. At this point in time, then, the Defendants were aware of the lawsuit, had retained
counsel, and were waiting for “proof of service . . . so that we may appear and file the appropriate
responsive pleading.” Id. There is no indication that Plaintiff’s counsel did anything between the
issuance of the faulty Indianapolis summons on August 3 and the filing of the Defendants’ notice
of removal on November 13, 2017, with the exception of conducting an online “background
check” on Cunningham. As explained in the Plaintiff’s brief, “[o]n October 20, 2017, Plaintiff’s
counsel checked the status of service on [Cunningham] and noted it had been left at his dwelling
place. Being uncertain as to whether the . . . Indianapolis [address] was [Cunningham’s] correct
address, Plaintiff’s counsel requested a subsequent background check. Thereafter, this case was
removed to this Court and defense [sic] filed a Motion to Dismiss.” Id., p. 4. Plaintiff’s counsel
also maintains that he “was mistakenly under the impression from th[e] email [communications]
that Mr. Terwilliger had either acquiesced that defendant Kaiser Transport had been served
and/or he would be accepting service on Kaiser’s behalf.” Id., p. 3. Counsel contends that he
“mistakenly believed that defense counsel had accepted service for Kaiser Transport and was
merely waiting on service [on Cunningham].” Id., p. 4.
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Lastly, on December 19, 2017, Plaintiff filed new summons forms in this Court. (ECF
13), Summons to Kenneth Cunningham; (ECF 14), Summons to Kaiser Transport, Inc. Smith’s
counsel filed an affidavit on January 4, 2018 (ECF 16), in which he indicates that he properly
served Kaiser Transport, Inc., on December 26, 2017. Affidavit of Service (ECF 16); Signed
Return Receipt (ECF 16-1). But even if the problem of lack of formal service of process has been
cured and the Court has jurisdiction over both Cunningham and Kaiser, the Defendants’ argue
that the Plaintiff has been so dilatory, and they as a result have been so harmed, that it would be
unjust to allow the case to proceed.
Smith counters that this case should not be dismissed for lack of prosecution under
Indiana Trial Rule 41(E) (or its federal counterpart) because “Plaintiff has routinely monitored
and continues to take action on this case since it was filed. Mindful of Ind. Trial Rule 41(E),
counsel for Plaintiff have routinely monitored this case in an effort to comply.” Id.
Indiana Trial Rule 41(E) states as follows:
Whenever there has been a failure to comply with these rules or when no action
has been taken in a civil case for a period of sixty [60] days, the court, on motion
of a party or on its own motion shall order a hearing for the purpose of dismissing
such case. The court shall enter an order of dismissal at plaintiff’s costs if the
plaintiff shall not show sufficient cause at or before such hearing. Dismissal may
be withheld or reinstatement of dismissal may be made subject to the condition
that the plaintiff comply with these rules and diligently prosecute the action and
upon such terms that the court in its discretion determines to be necessary to
assure such diligent prosecution.
Ind. Trial Rule 41(E). Indiana courts have explained the purpose and applicability of the rule as
follows:
The purpose of Trial Rule 41(E) is “‘to ensure that plaintiffs will diligently pursue
their claims’” and to provide “‘an enforcement mechanism whereby a defendant,
or the court, can force a recalcitrant plaintiff to push his case to resolution.’”
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Belcaster v. Miller, 785 N.E.2d 1164, 1167 (Ind.Ct.App. 2003) (quoting Benton v.
Moore, 622 N.E.2d 1002, 1006 (Ind.Ct.App. 1993)), trans. denied. “‘The burden
of moving the litigation is upon the plaintiff, not the court. It is not the duty of the
trial court to contact counsel and urge or require him to go to trial, even though it
would be within the court’s power to do so.’” Id. (quoting Benton, 622 N.E.2d at
1006). “‘Courts cannot be asked to carry cases on their dockets indefinitely and
the rights of the adverse party should also be considered. [The adverse party]
should not be left with a lawsuit hanging over his [or her] head indefinitely.’” Id.
(quoting Hill v. Duckworth, 679 N.E.2d 938, 939-40 (Ind.Ct.App. 1997)).
“Although Indiana does not require trial courts to impose lesser sanctions before
applying the ultimate sanctions of default judgment or dismissal, we view
dismissals with disfavor, and dismissals are considered extreme remedies that
should be granted only under limited circumstances.” Am. Family Ins., 929 N.E.2d
at 857.
Caruthers v. State, 58 N.E.3d 207, 210-11 (Ind.Ct.App. 2016). The federal version of this rule
states:
If the plaintiff fails to prosecute or to comply with these rules or a court order, a
defendant may move to dismiss the action or any claim against it. Unless the
dismissal order states otherwise, a dismissal under this subdivision . . . operates as
an adjudication on the merits.
Fed.R.Civ.P. 41(b). This Court has explained the purpose and applicability of this rule as
follows:
The Seventh Circuit has listed several factors district courts should consider
before dismissing a case under Rule 41(b):
1) whether the wrongdoer (or her counsel) received “due warning” that such a
sanction was a possibility; 2) the frequency and magnitude of the wrongdoer’s
failure to comply with deadlines and other court orders; 3) the efficacy of less
severe sanctions; 4) whether the misconduct prejudiced the other party or other
litigants on the court’s docket; and 5) the likely merits of the wrongdoer’s case.
Yaodi Hu v. Amtrak U.S.A., 2015 WL 5772383, at *2-3 (N.D. Ind. Sept. 30, 2015) (citing Ali v.
Calumet Medical Center, Inc., 2015 WL 1543589 (E.D. Wisc. April 7, 2015)) (additional
citations omitted).
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The purpose of both rules is to ensure that cases are prosecuted with diligence and both
bestow broad discretion on the presiding court to fashion remedies to achieve that goal. See, e.g.,
Am. Family Ins. Co. ex rel. Shafer v. Beazer Homes Indiana, LLP, 929 N.E.2d 853, 857
(Ind.Ct.App. 2010) (trial court’s decision whether to dismiss under Rule 41(E) will be reversed
only for abuse of discretion); Whitt v. AW Holdings LLC, 2014 WL 1365431, at *1 (N.D. Ind.
Apr. 7, 2014) (quoting Gabriel v. Hamlin, 514 F.3d 734, 736-37 (7th Cir. 2008)) (“court has
discretion to dismiss an action for failure to prosecute ‘when there is a clear record of delay or
contumacious conduct, or when other less drastic sanctions have proven unavailing.’”).
The Court concludes that Plaintiff’s counsel has, so far, handled matters far too
“routinely,” and that lack of diligence is exactly the hook on which the Defendants hang their hat
in their reply brief. As they argue it: “With respect to the plaintiff’s failure to prosecute, the
plaintiff does not contest the fact that the Indianapolis address . . . was incorrect. As a result, the
state court docket reflects that, since filing his complaint on January 23, 2017, the plaintiff has
taken no action to properly serve the defendants to issue discovery, ask for a trial date or take any
other action to prosecute his case.” Defendants’ Reply (ECF 10), p. 2 (italics added). Finally, the
Defendants contend that they “have been prejudiced by the plaintiff’s actions. The nearly yearlong delay prevented the defendants from engaging in both written and oral discovery of the
plaintiff and his medical providers. Because the defendants were prevented from timely
conducting discovery, memories have faded and critical evidence may have been lost that was
supportive of defendants’ affirmative defenses such as the failure to mitigate damages. Under
these circumstances, the plaintiff’s failure to preserve his rights is simply inexcusable.” Id., p. 3.
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Plaintiff’s explanation for the delays in getting this case off the launch pad are lame, but
Defendants’ assertion that they have been unduly (maybe even fatally) prejudiced by the 10month delay is overly dramatic. The Court agrees that Plaintiff failed to demonstrate diligence in
formally serving his lawsuit on Defendants. And given the long, unexplained gaps in time during
which Plaintiff’s counsel did little or nothing to cure the problems with service and move this
case along, that lack of diligence can be fairly characterized as sloppy at best and neglectful at
worst. At the same time, the Defendants’ outrage exceeds the gravity of the Plaintiff’s
inattentiveness; and the remedy they seek–outright dismissal of this lawsuit–far exceeds any
hypothetical prejudice they might suffer from “faded memories” and “lost evidence.” More
importantly, any impediments to discovery or concerns about the efficient litigation of this case
will be eliminated immediately. This case is already scheduled for a telephonic status conference
on March 8, 2018, before Magistrate Judge Susan Collins.3 Furthermore, this Court’s required
pretrial procedures and filing deadlines, all of which will be set out at the Rule 16 preliminary
pretrial conference and later in the Court’s Order Controlling the Case, will ensure that this case
is litigated promptly and efficiently. The Court will not tolerate lack of diligence by any litigant
and is confident that this will not be an issue moving forward. For these reasons, the Court
3
The docket indicates that this conference on March 8, 2018, was scheduled as a
“telephonic status conference” but that it would “be converted to a Rule 16 Preliminary Pretrial
Conference, if necessary, after ruling on [the Defendants’] Motion to Dismiss.” Minute Entry
(ECF 12). Given the Court’s denial of the motion to dismiss, the case will proceed next to the
status conference before Magistrate Judge Collins, who in her discretion may convert it to a Rule
16 conference. (Ironically, the March 8 hearing date is a continuation of a telephonic status
conference scheduled on January 25, 2018, but which Judge Collins was unable to conduct on
that date “[d]ue to the Court’s inability to reach Attorney Michael Terwilliger[.]”)
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concludes that dismissal of this lawsuit is too harsh a remedy for the Plaintiff’s lack of diligence
and that this admonition will be sufficient to get this train back on the track and moving forward.
CONCLUSION
For the reasons set forth above, the Defendants’ Motion to Dismiss (ECF 4) is DENIED.
Date: February 15, 2018.
/s/ William C. Lee
William C. Lee, Judge
U.S. District Court
Northern District of Indiana
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