ESTATE OF B. FA`AFETAI PUA`AULI,
FA`AFETAI PUA`AULI, and PENIELI PUA`AULI, Plaintiffs,
v.
1-10, and DOE PARTNERSHIPS, CORPORATIONS,
and ENTITIES 1-10, Defendants.
High Court of
Trial Division
CA No. 129-87
March 27, 2000
[1] Both under the authority of T.C.R.C.P. 41(b) and
through its inherent powers, a court may dismiss a case for lack of
prosecution.
[2] Factors considered in deciding whether to dismiss
a case for lack of prosecution are the court’s need to manage its docket, the
public interest in the expedient resolution of litigation, the risk of
prejudice to the defendants, the policy favoring resolution of disputes on
their merits, and the availability of less drastic sanctions.
[3] Unreasonable delay is a prerequisite for dismissal
for failure to [4ASR3d104] prosecute.
[4] Unreasonable delay creates a presumption of injury
to a defendant’s defenses, and actual prejudice to a defendant’s case is a factor
in judging whether a delay is unreasonable.
[5] Where many witnesses are no longer available and
much or all of the evidence has been lost, actual prejudice is shown and weighs
heavily in favor of dismissal.
[6] Unreasonable delay is not a fixed time period, but exists when the plaintiff is totally inactive for a significant period, such as where he has
been completely inactive for
12 years and is completely unresponsive in explaining the delay.
[7] The burden is on the
plaintiff to show that the delay was justified or excusable.
Before
Counsel: For Plaintiff, Arthur Ripley,
Jr.
For Defendant, Gwen Tauiliili-Langkilde
ORDER GRANTING MOTION TO
DISMISS
History
Plaintiffs Estate of B.
Fa`afetai Pua`auli, Fa`afetai Pua`auli and Penieli Pua`auli (collectively “the
Pua`aulis”) filed a complaint on September 3, 1987, alleging that defendants
LBJ Tropical Medical Center, Department of Health, American Samoa Government,
and numerous Does (collectively “ASG”) committed medical malpractice with
regards to the care of their daughter, B. Fa`afetai Pua`auli. Born on September 3, 1985, the daughter died
three days later, allegedly due to malpractice. ASG answered on September 30,
1987.
The Pua`aulis took no
further action on the claim until the Court issued its order on October 4,
1999, directing the Pua`aulis to show cause why the action should not be
dismissed. In response, the Pua`aulis
asked the Court to set the matter for trial.
The Court denied this request at the hearing on October 29, 1999,
instead scheduling a status hearing for December 3, 1999, at which time ASG
submitted a motion to dismiss. The Court conducted a hearing on the motion to
dismiss on January 7, 2000 and granted counsels’ motion to submit briefs on the
issue. ASG filed an addendum to its
memorandum in support of the motion to dismiss on February 23, 2000, and the
Pua`aulis filed their opposing
[4ASR3d105] memorandum on March 16,
2000.
Analysis
[1-2] T.C.R.C.P. 41(b) expressly
authorizes the court to dismiss a case for lack of prosecution. The court possesses inherent powers that
allow it to dismiss a case on the same grounds.
Link v. Wabash R.R., 370
[3-5] Unreasonable delay is a
prerequisite for dismissal for failure to prosecute. Nealey v. Transportacion Maritima
Mexicana, S.A., 662 F.2d 1275, 1280 (9th Cir. 1980). “Unreasonable delay creates a presumption of
injury to [defendant’s] defenses.”
[6] Turning to the court docket
and expedient resolution of litigation factors, we must examine the length of
and reasons for the delay. Unreasonable delay is not a fixed time period, and
connotes different periods in different cases.
However, a delay is unreasonable if there is a significant period of
total inactivity on the part of the plaintiff.
Ramsey v. Bailey, 531 F.2d 706, 708 (5th Cir. 1976). Courts have dismissed actions after only four
weeks of inactivity when counsel proved unresponsive in explaining the
delay. See, e.g., Ash v. Cvetkov,
739 F.2d 493, (9th Cir. 1984). Even where the plaintiff has resumed
prosecution prior to the motion to dismiss, a four-year delay was held
unreasonable in light of the plaintiff’s inactivity for that period of
time. See In re Eisen, 31
F.3d 1447, 1452 (9th Cir. 1994). The
Pua`aulis having been completely inactive for 12 years, as well as completely
unresponsive in explaining the delay, the Court finds that the delay was
unreasonable.
[7] Having determined that
unreasonable delay exists, the Pua`aulis have the burden of showing that the
delay was justified or excusable. Cubit
v.
The medical malpractice
cases we have located support granting dismissal. For example, dismissal for failure to
diligently prosecute was granted in a case where the plaintiffs waited 2 years
and 7 months between serving the initial complaint and the amended complaint
plus certificate of merit. Dismissal was
granted in this case even though the plaintiffs changed attorneys during the
time between the filing of the two complaints.
See generally Adams v. Roses, 228 Cal. Rptr. 339 (Cal. Ct.
App. 1986). The Pua`aulis in this case
have not changed counsel, and thus have even less excuse for delay than did the
plaintiff in
Another case reversed the
trial court’s dismissal when the plaintiff’s counsel showed that the delay of 4
years was justified because he had been actively conducting discovery and
submitting and responding to various motions during the time period in
question. See Cubit, 240
While the Pua`aulis’
argument regarding the Court’s preference for resolving cases on the merits is
not without force, it does not justify hearing a case after such a long period
of inactivity. The Pua`aulis have simply
slept on their claims for far too long, with no justification or excuse, to
burden ASG with defending the case.
Order
ASG’s motion to dismiss with
prejudice is granted.
It is so ordered.