Day on Torts
Rule 60.02(1) of the Tennessee Rules of Civil Procedure allows the court to relieve a party from a final judgment or order on grounds of “mistake, inadvertence, surprise or excusable neglect.” This is the rule that the plaintiffs attempted to rely on to set aside an order dismissing their case in Brown v. Juarez, No. E2013-00979-COA-R3-CV (Tenn. Ct. App. Apr. 10, 2014).
In Brown, after about three years of inactivity in the case, the defendants filed a motion to dismiss the case for failure to prosecute. The motion included a notice of hearing and a statement that the motion would be granted if there was no response. Plaintiffs’ counsel received the motion but failed to file a response and did not appear at the hearing. Plaintiffs’ counsel argued that the notice was crafted to conceal the hearing date. The court was not persuaded by that argument. Nor was the court persuaded by the argument that the plaintiffs’ failure to appear and to respond was due to “mistake, inadvertence, surprise or excusable neglect.”
The court noted that an absence of willfulness does not equate to neglect that is excusable. So, while the court found that plaintiffs’ counsel did not willfully fail to appear or respond to the motion, the court found that the neglect was not excusable because had plaintiffs’ counsel read the entire motion, he would have noticed the hearing date. Thus, the court concluded that the plaintiffs failed to prove entitlement to relief under Rule 60.02 and upheld the dismissal.
Read this decision and then explain to me how a case can sit around for three years with no activity. To be sure, from time to time a plaintiff will require additional medical treatment and that will result in reduced activity in the case. And active settlement negotiations may not be reflected in a court file.
But three years? Ridiculous. The court was right to dismiss this case, and the Court of Appeals was right to affirm the dismissal. Plaintiffs and defendants have a right to have cases resolved, and if the plaintiff – or the plaintiff’s lawyer – let’s a case sit for three years it should be wiped off the books.