motion to dismiss kentucky

endstream endobj startxref Respondent. Generally, it appears that additional factors considered by the trial court were appropriate and relevant. The time frames differ by type of case and by state. When Can You File a Motion to Dismiss? | LegalMatch %%EOF (3) All motions going to the merits of the case, including motions to dismiss, motions for summary judgment, motions to strike, and motions under CR 12.02, shall be filed at least 10 days prior to motion hour and accompanied by a brief memorandum of the grounds for the motion with citation of authorities relied upon, but not greater than 25 pages 0000030196 00000 n View Document - Kentucky Court Rules - Westlaw 41]. Defendants' motion was styled as a "motion to dismiss/motion for summary judgment." DN 72. The court should not grant the motion unless it appears the pleading party would not be entitled to relief under any set of facts which could be proved in support of his claim. Ward, 809 S.W.2d at 719 (the appellee/defendant Housman did not move for a dismissal; he moved for the exclusion of testimony or alternatively for a continuance. A few days later, Plaintiffs Brian and Amy filed a motion to set the case for trial. This is well-established by both the Kentucky Rules of Civil Procedure and every court that has addressed the issue. Rule 12.01 - When presented. The plaintiffs' response provided, in part, that: Plaintiffs' counsel then began working on discovering the rental car documents and verification of which entity held this coverage. When a motion to dismiss is made, trial courts cannot grant the motion unless it appears the pleading party would not be entitled to relief under any set of facts which could be proved in support of his claim. Motion to Dismiss Law and Legal Definition | USLegal, Inc. individuals to assist them in their official capacities or their pursuit of 0000072805 00000 n motion is a request made to the Court for the purpose of obtaining a ruling or order directingan act to be performed. 0000002281 00000 n Temporary Restraining Order (TRO). SCOKY: Covid The Kentucky Supreme Court said the Boone and Scott County courts could proceed, but none of their orders would be in effect until the state supreme court has a final say. Nonetheless, the fact that a party is not in violation of a court order does not necessarily show that active efforts to prosecute the case were made. 18. 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. In addressing the first factor listed in Ward, extent of the party's personal responsibility for delay, the trial court found the plaintiffs responsible for delay, based upon their failure to seek a trial date until the motion to dismiss had been filed and their delay in providing information about prior injuries. Although the trial court's finding of spoliation of evidence is not made with much specificity, one possible specific evidentiary issue discussed at oral argument was changes to the highway since the accident. Garnishment. @D9!d[k{a~AE`9xXKPW* 8A/e6:%Y6nulM?(E(>AMam*- Statute. 5. Making false statements under oath. %PDF-1.4 % Default. Noting that the defendant had not even filed a motion to dismiss, the Court of Appeals attempted to provide guidance on how a trial court should rule on a motion to dismiss for failure to prosecute. 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. Nonetheless, it is clear that the trial court found this delay in providing information to show willful, bad faith apparently by one or more of the plaintiffs' attorneys; and this finding of bad faith is not clearly erroneous nor does it reflect an abuse of discretion. Certain documents (such as complaints, answers, motions, memoranda) filed under court rules with the court by the parties in a civil or criminal case. To agree with or rule in favor of the partys request. As for the sixth factor, lack of availability of alternative sanctions, the trial court noted that there were multiple instances of delay here, not just one act of delay as in Ward, so it did not view other sanctions as adequate. Motion to Dismiss Definition | Law Insider A request to change a prior order is a motion to modify. It requires some reason for the change, such as when a spouse paying child support asks to modify the amount paid because of a change in circumstances (such as income) since the original order was made. Marshals Service to complete service. We further note that at the time of the accident, Brian and Amy had not yet married, so her name was then Amy Page. The trial court found the fifth factor, prejudice, weighed in favor of dismissal. Cross-Examination. endstream endobj 18 0 obj <>stream Motion to Dismiss Definition | Nolo After filing the motion to set the case for trial, the plaintiffs also filed a response to Karen's motion to dismiss. VENTERS, J., concurs by separate opinion. Apparently, Brian did not respond to the interrogatories and request for production of documents for approximately six months.2 Other than Brian's appearing for his deposition, Plaintiffs Brian and Amy again did nothing of record during the 2004 calendar year and through the first few months of 2005. KRS 500.060 limits the scope of Kentucky's territorial jurisdiction over offenses with an interstate character. 2002) (internal quotation marks and footnotes omitted). Stay up-to-date with how the law affects your life. 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. 0000033498 00000 n Later in 2003, Flege filed a notice to schedule a defense medical examination of Brian with a doctor in the Cincinnati area. While we recognize that prosecution may take many forms, we also recognize a trial court's broad discretion to determine whether dismissal for lack of prosecution is appropriate under the unique factual circumstances of each case. Filing. endstream endobj 168 0 obj <>stream Is it necessary to file papers periodically in the trial court's record to withstand a CR 41.02 motion to dismiss for lack of prosecution, as the Court of Appeals opinion suggests? Ward, 809 S.W.2d at 719 (In ruling on a motion for involuntary dismissal, the trial court must take care in analyzing the circumstances and must justify the extreme action of depriving the parties of their trial.). Victim Information and Notification Everyday (VINE), Revised legal forms due to 2022 legislation. In doing so, it stated that those plaintiffs who fail to make a record of their activities risk having their cases dismissed for lack of prosecution. Complaint. LibGuides: Kentucky Legal Practice Materials: Civil Procedure prohibited and may result in civil or criminal liability. First, one sidefiles a motion explaining what it wants the Court to do and why the Court should do it. 3:14-cv-00774-jgh electronically filed edward musselman plaintiff v. robert king, et al. Objection. The plaintiffs further noted that after the medical examination and Brian's deposition were completed, they learned in Karen's deposition that she had purchased additional liability insurance coverage from Alamo. Improper use of a form, or alteration of a form (beyond mere completion) The Fayette County Legal Help Center offers free legal information for people who are handling certain legal matters on their own. The fact that the party is concerned about liability insurance coverage does not excuse delay in responding to the other party's requests for discovery, for example, because cooperating with the other side's discovery requests would help to bring the case to a timely resolution. A person or legal entity that is named as a plaintiff or defendant on legal papers. x 0000049919 00000 n Some legal forms can be completed online through guided interviews. Legal custody to both parents is called joint or shared. 29. Admittedly, we have some doubts concerning the trial court's analysis of this particular factor; and we cannot wholeheartedly accept authority encouraging the trial court to consider the merits when ruling on a motion to dismiss for lack of prosecution. While Ward has been useful by particularly encouraging the trial court to make specific findings on the record, and while this precedent undoubtedly gives trial courts some guidance about what to consider, we hesitate to embrace a formulaic approach where certain listed factors must always be discussed, and other relevant factors may not be discussed. Prosecution Entails Active Attempts to Resolve the Case, Recognizing that Resolution Could Take Different Forms. 0000066281 00000 n 842 63 Our holdings today apply only to resolution of motions to dismiss for lack of prosecution under CR 41.02(1), not to determining the propriety of CR 77.02(2) dismissals, which differ from CR 41.02(1) dismissals in many respects, such as CR 77.02(2) dismissals being made without prejudice; by contrast, those under CR 41.02(1) are made with prejudice.8. Judge denies Brett Favre's 'unpersuasive' motion to dismiss charge in Counterclaim. We do not have before us a CR 77.02(2)7 dismissal, which is often termed an administrative dismissal, but which is sometimes also termed a dismissal for lack of prosecution. View Document - Kentucky Court Rules - Westlaw This holding is consistent with a recent Court of Appeals case, in which the Court of Appeals affirmed a trial court order dismissing a case for lack of prosecution under CR 41.02. The plaintiffs also told the trial court that the parties had been discussing mediation in 2003 but that Flege had refused to participate in mediation. Lack of Availability of Alternative Sanctions. As such, it is virtually impossible for this court to determine whether the dismissal was based solely on a single dilatory act or whether the trial court made its determination after considering the relevant factors set forth in Ward.). Often, in a case where the plaintiff has purportedly failed to prosecute, the trial court simply would not have a sufficient record to determine whether the claim had merit in the sense of the plaintiff's likelihood of success on the merits. 7. Appeal. Sustain. When a motion to dismiss is made, trial courts cannot grant the motion unless it appears the pleading party would not be entitled to relief under any set of facts which could be proved in support of his claim. 0000010533 00000 n A document prepared by an attorney or party and filed with the court. Conversely, this precedent is also misunderstood to suggest that the trial court's dismissal order is unassailable on appeal if it recites and attempts to analyze each of the six listed factors. The parent who has the legal right to determine the primary residence of the child. Is it sufficient to show that counsel for a plaintiff or a self-represented litigant has continued to work on a case in some manner, albeit reactively rather than proactively, to establish prosecution? In making this decision, the circuit court is not required to make any factual determination; rather, the question is purely a matter of law. A neutral third party (the mediator) meets with the parties to help them find and agree upon a solution. CR 77.02(2) states: At least once each year trial courts shall review all pending actions on their dockets. Small Claims. A motion to dismiss can be filed at any time. 0 Kentucky Motion - Pro Se Motion Form Kentucky | US Legal Forms The Court finds that no reasonable explanation has been shown by Plaintiffs for this almost complete failure to prosecute their case. 0000037200 00000 n We do recognize here though that under the facts of this case, clearly, someone would be presumably liable to the plaintiffs, who were Karen's passengers at the time of the interstate collision. Rather, the Court of Appeals concluded that the trial court had abused its discretion because the dismissal stemmed from a one-time dilatory act of counsel and occurred without consideration of alternative sanctions.17 So, essentially, the Court of Appeals reversed the dismissal in Ward-not because the trial court failed to consider each of the six particular factors suggested by Scarborough-but because the trial court apparently focused on one isolated instance of delay without considering alternative sanctions or other relevant factors before taking the extreme measure of dismissing the case. Testimony of a witness taken, given under oath and outside the courtroom, in response to questions by one of the parties or his/her attorney. Rule 15.02 - Amendments to conform to the evidence. 0000030642 00000 n Often a condition of probation. The rules of evidence are relaxed and people often do not have an attorney. 24 Am.Jur.2d Dismissal, Discontinuance and Nonsuit 63 (2009) (footnotes omitted). Overrule. For example, the parties might reach a resolution by agreement through alternative dispute resolution, rather than by a jury trial. x Lien. It is also the money a party claims or receives as compensation for loss or injury. In civil cases, the person against whom a lawsuit is filed. The statement of the Court of Appeals that one fails to make a record upon peril of having a case dismissed for lack of prosecution is certainly applicable in terms of administrative dismissals under CR 77.02. Motions to dismiss, for judgment on the pleadings, and for summary judgment shall not be noticed for motion hour but shall be filed with a memorandum of authority not exceeding twenty-five (25) pages in length, in type no smaller than 12-point. In response, appellee moved to dismiss on grounds of double jeopardy. endstream endobj 27 0 obj <>stream Venue. Docket Number. Pleadings. 0000005641 00000 n Given the multiple instances of delay and lack of evidence of the plaintiffs actively seeking to resolve their case, we cannot conclude that the trial court abused its discretion in granting the motion to dismiss for lack of prosecution. Affirmation. 166 0 obj <>stream 0000003145 00000 n 1987). The circuit court agreed to dismiss the case without prejudice, but in its order stated, "Defendant may renew his request to dismiss with prejudice if the Commonwealth does not pursue re-indictment within a reasonable time." 1 Kentucky Revised Statutes (KRS) 218A.1412, charged here as a Class C felony. Summons. They must be answered in writing under oath within a specified time (usually 30 days). For the foregoing reasons, this Court affirms the decision of the Court of Appeals affirming the trial court's order dismissing for lack of prosecution. A statement opposing specific testimony or admission of evidence for a legal reason. Financial Affidavit. Here, the relatively few discovery requests made and the plaintiffs' pattern of delay in responding to these requests support the trial court's findings of dilatoriness on the part of plaintiffs. The trial court granted the renewed motions to dismiss, discussing each of the six factors listed in Ward. We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial. Judgment. A lawsuit, action or right to sue (as in Do I have a case?) or a written decision in another case that is used as rule or law for similar legal issues. Ex Parte. Certainly, not all of counsel's work in pursuit of resolution of the case makes its way into the official record of a case. 1987); Pike v. George, 434 S.W.2d 626, 627 (Ky. 1968) (For the purpose of testing the sufficiency of the complaint the pleading must not be construed against the pleader and the allegations must be accepted as true.). To fail to respond or answer to the plaintiffs claims by filing the required court document, such as an Answer. Williamson v. Commonwealth, 767 S.W.2d 323, 326 (Ky.1989) (party must challenge adverse court ruling in some manner, such as moving for discretionary review on that issue, or be bound by the court's decision).