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06/27/2023 08:06 AM CDT
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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
SCHULTZ V. STATE
Cite as 32 Neb. App. 59
Gregg Schultz, appellant,
v. State of Nebraska and
Karina Adame, appellees.
___ N.W.2d ___
Filed June 20, 2023. No. A-22-387.
1. Courts: Dismissal and Nonsuit: Appeal and Error. The exercise of
the power to dismiss a matter for lack of prosecution rests in the sound
discretion of the trial court, whose ruling will not be disturbed on appeal
in the absence of a showing of an abuse of discretion.
2. Judgments: Appeal and Error. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason,
and evidence.
3. Courts: Dismissal and Nonsuit. A district court has the inherent power
to dismiss a case without prejudice for failure to prosecute.
4. Courts: Pretrial Procedure: Time. District courts must be given wide
discretion to ensure the timely disposition of cases is reached in a manner consistent with fairness to all parties.
5. Actions: Dismissal and Nonsuit: Rules of the Supreme Court. In the
absence of a showing of good cause, a litigant’s failure to prosecute
a civil action, resulting in noncompliance with the Nebraska Supreme
Court’s progression standards for civil actions in the district courts, is a
basis to dismiss an action for failure to prosecute.
6. Actions: Parties. The plaintiff bears the responsibility to prosecute a
case with reasonable diligence.
7. Courts: Dismissal and Nonsuit: Good Cause. There are four factors to
assist in determining whether good cause exists to avoid dismissal of a
case for lack of prosecution. They include whether a new suit would be
barred by the statute of limitations, the length of delay, excuses for that
delay, and if there were previous dismissals for lack of prosecution that
have been entered and rescinded.
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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
SCHULTZ V. STATE
Cite as 32 Neb. App. 59
Appeal from the District Court for Hall County: Patrick M.
Lee, Judge. Reversed and remanded for further proceedings.
Gregory R. Coffey, of Friedman Law Offices, L.L.C., for
appellant.
Douglas J. Peterson, Attorney General, and Phoebe L.
Gydesen for appellees.
Riedmann, Bishop, and Arterburn, Judges.
Riedmann, Judge.
INTRODUCTION
Gregg Schultz sued the State of Nebraska and its employee,
Karina Adame, for damages he allegedly sustained in a motor
vehicle accident with Adame while she was acting in the scope
of her employment. Eighteen months after the action was
filed, the Hall County District Court dismissed Schultz’ case
for failure to prosecute. Because the district court abused its
discretion in failing to consider the requisite factors in determining whether good cause existed not to dismiss the case,
we reverse the order of dismissal and remand the cause for
further proceedings.
BACKGROUND
On August 9, 2018, Schultz and Adame were involved in a
motor vehicle accident. Pursuant to the State Tort Claims Act,
Schultz timely filed a claim with the State and later withdrew
it on August 7, 2020, after the State failed to act upon it. The
same day, Schultz filed suit against Adame and the State (hereinafter collectively the State), claiming Adame was negligent
and her negligence was the proximate cause of damages sustained by him. After the State filed its answer on September
14, no further action was taken, and on March 15, 2022, the
district court issued an order to show cause why the case
should not be dismissed for lack of prosecution. The hearing
was scheduled for April 21.
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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
SCHULTZ V. STATE
Cite as 32 Neb. App. 59
At the show cause hearing, Schultz’ counsel advised the district court that the parties had agreed to a progression deadline
and were ready to proceed with the case. Upon questioning
from the court, Schultz stated that discovery requests were
drafted and typically would be sent out after the complaint.
The State responded, however, that it had not received any
requests, nor had it sent any requests to Schultz. It stated that
it anticipated sending discovery requests within the next week
or two. When Schultz’ attorney was asked by the court if he
had taken any action to prosecute the case, he responded “Not
much, Your Honor.” He offered to consent to a more expedited
schedule if the court preferred.
The district court noted its concern that the case was filed
18 months prior to the hearing, yet there had been no attempt
to prosecute the case. It then found that Schultz had failed to
show good cause why the matter should not be dismissed but
stated that Schultz could refile. Schultz interjected that the
statute of limitations precluded him from refiling and that since
the parties stipulated to a progression schedule, he requested
the court to reconsider. The State affirmed that Schultz’ representations as to his conversations with the State and its
agreement to move forward were accurate. The district court
responded that the issue was not whether there was an agreeable progression schedule, but that Schultz had not yet taken
any action in prosecuting his case. It conceded that it had not
looked at the statute of limitations issue, but because Schultz
had not shown good cause, it dismissed the matter.
On April 28, 2022, Schultz filed a motion to reconsider
or reinstate the case. At the hearing on the motion, Schultz’
counsel offered his affidavit setting forth the efforts he made
with the State’s counsel following receipt of the order to show
cause. Attached to it were two emails that predated the show
cause hearing. One email was from the State’s counsel to the
court’s bailiff, advising that the parties agreed that the case
should not be dismissed for lack of prosecution and inquiring whether a hearing would still be necessary. The other
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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
SCHULTZ V. STATE
Cite as 32 Neb. App. 59
email was between the parties and laid out their agreed-upon
proposed progression schedule. Schultz’ counsel also offered
an accelerated proposed scheduling order in which the case
could be set for trial in April 2023.
Schultz argued that the district court should reconsider its
order, because the district court’s inquiry is not limited to the
amount of work completed but should include the parties’
plan moving forward. He explained that the parties had agreed
on a progression schedule and had plans to get the case back
on track. Schultz also argued that, alternatively, the district
court should reinstate the case because case law requires
the district court to analyze various factors that ultimately
weighed in his favor.
The State confirmed that it was not taking a position on
the motion to reconsider or reinstate, but it would agree to the
proposed progression schedule. It expressed its opinion that
the case was “relatively simple” “in terms of the amount of
discovery” that needed to be done. The district court took the
matter under advisement.
Prior to the district court’s ruling on the motion to reconsider or reinstate, Schultz filed two pleadings: a stipulation to
reopen the record and an affidavit from Schultz’ counsel. The
district court denied Schultz’ request to reopen the record and
did not consider any items offered beyond those offered at the
hearing. It concluded that at the show cause hearing, Schultz
did not show any cause, much less good cause, for why the
case should not be dismissed for lack of prosecution. It then
declined to reconsider its previous determination to dismiss the
case and denied Schultz’ motion to reconsider and reinstate.
Schultz appeals.
ASSIGNMENTS OF ERROR
Schultz assigns the district court abused its discretion by
(1) dismissing Schultz’ action for failure to prosecute and (2)
denying Schultz’ motion to reconsider or reinstate.
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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
SCHULTZ V. STATE
Cite as 32 Neb. App. 59
STANDARD OF REVIEW
[1] The exercise of the power to dismiss a matter for lack
of prosecution rests in the sound discretion of the trial court,
whose ruling will not be disturbed on appeal in the absence of
a showing of an abuse of discretion. Marcuzzo v. Bank of the
West, 290 Neb. 809,
862 N.W.2d 281 (2015).
[2] An abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or unreasonable
or if its action is clearly against justice or conscience, reason,
and evidence. Buttercase v. Davis,
313 Neb. 1,
982 N.W.2d
240 (2022), modified on denial of rehearing
313 Neb. 587,
985
N.W.2d 588.
ANALYSIS
Dismissal Following Show
Cause Hearing.
Schultz contends the district court abused its discretion by
dismissing his action for failure to prosecute. He argues the
district court failed to analyze all the factors in determining
whether good cause was shown why the case should not be
dismissed. Because we agree that the district court failed to
consider the requisite factors, we find the district court abused
its discretion when it dismissed Schultz’ case.
[3,4] A district court has the inherent power to dismiss a
case without prejudice for failure to prosecute. See Talkington
v. Womens Servs., 256 Neb. 2,
588 N.W.2d 790 (1999). The
power to invoke this sanction is necessary in order to prevent undue delays in the disposition of pending cases and
to avoid congestion in the trial courts. Schaeffer v. Hunter,
200 Neb. 221,
263 N.W.2d 102 (1978). The district court
also has the discretionary power to dismiss a case without prejudice for want of prosecution under
Neb. Rev. Stat.
§ 25-1149 (Cum. Supp. 2022). District courts must be given
wide discretion to ensure the timely disposition of cases is
reached in a manner consistent with fairness to all parties. See
Talkington v. Womens Servs., supra. However, this discretion
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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
SCHULTZ V. STATE
Cite as 32 Neb. App. 59
must be exercised reasonably and not arbitrarily. See Beliveau
v. Goodrich,
185 Neb. 98,
173 N.W.2d 877 (1970).
[5] The Nebraska Supreme Court’s case progression standards for a civil case’s disposition recommend 18 months. See
Neb. Ct. R. § 6-101(A) (rev. 2013). Our research uncovers no
examples in case law of applying this standard as a per se rule,
which means that a case can exceed 18 months under certain
circumstances. However, in the absence of a showing of good
cause, a litigant’s failure to prosecute a civil action, resulting in noncompliance with the Supreme Court’s progression
standards for civil actions in the district courts, is a basis to
dismiss an action for failure to prosecute. Marcuzzo v. Bank
of the
West, supra. Therefore, a case can be dismissed for
surpassing the 18-month progression standard if good cause is
not shown.
[6,7] The plaintiff bears the responsibility to prosecute a
case with reasonable diligence.
Id. Each case must be looked
at with regard to its own peculiar procedural history and the
situation at the time of dismissal. Talkington v. Womens Servs.,
supra. The meaning of good cause must be determined in light
of all the surrounding circumstances. DeVries v. Rix,
203 Neb.
392,
279 N.W.2d 89 (1979). The Supreme Court has provided
four factors to assist in determining whether good cause exists
to avoid dismissal for lack of prosecution. Whether a new suit
would be barred by the statute of limitations is an important
consideration, but it cannot on its own establish an abuse of
discretion in dismissing a case. See Schaeffer v.
Hunter, supra.
Other relevant considerations are the length of delay, excuses
for that delay, and if there were previous dismissals for lack
of prosecution that have been entered and rescinded.
Id. Our
research also indicates that the public’s interest in expeditious
resolution of the litigation, the court’s need to manage its
docket, the public policy favoring disposition of cases on their
merits, and the availability of less drastic sanctions are relevant
considerations. See 24 Am. Jur. 2d Dismissal, Discontinuance,
and Nonsuit § 59 (2018).
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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
SCHULTZ V. STATE
Cite as 32 Neb. App. 59
Here, the district court’s analysis was limited to what
Schultz had done to prosecute the case before the show cause
order was issued. In other words, its focus was solely on the
reason for the delay, and it determined that Schultz failed
to take any action to prosecute the case. It did not consider
the remaining factors that we consider in our determination of whether dismissal of the action constituted an abuse
of discretion.
At the hearing on the order to show cause, Schultz advised
the court that he would be precluded from refiling the case
based upon the statute of limitations. The district court
acknowledged that the statute of limitations was a potential issue but admitted that it had not looked into the issue.
Regardless, it concluded that Schultz “has not shown good
cause as to why this matter should not be dismissed.” The
impact of the statute of limitations is an “important consideration” as to whether good cause was shown, yet the district
court did not consider it. See Schaeffer v. Hunter,
200 Neb.
221, 224,
263 N.W.2d 102, 104 (1978). Our review of the
record indicates that the accident occurred on August 9, 2018,
and Schultz withdrew his political subdivision tort claim on
August 7, 2020. Pursuant to
Neb. Rev. Stat. § 81-8,227(1)
(Reissue 2016), Schultz had 6 months from August 7 (until
February 7, 2021) to file suit. Therefore, when the court dismissed the case on April 21, 2022, the statute of limitations
had run.
Regarding the length of the delay, the court commented that
the case had been pending for 18 months. We are cognizant
that the progression standards for district courts reflect that
98 percent of civil cases should be completed in 18 months.
See § 6-101(A). But we also recognize that the progression
standards recommend that the trial judge implement certain
processes to ensure compliance with this standard, including
using early progression orders. However, it does not appear as
though any progression order was entered in this case prior to
its dismissal.
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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
SCHULTZ V. STATE
Cite as 32 Neb. App. 59
Furthermore, although we do not condone the lack of case
activity, our research reveals that 18 months is not an inordinate amount of time for a case to remain on a court’s docket.
See, e.g., Schaeffer v.
Hunter, supra (case reinstated twice over
4-year period). See, also, Jarrett v. Eichler,
244 Neb. 310,
506
N.W.2d 682 (1993) (case allowed to proceed after three previous dismissals and reinstatements despite its 2-year pendency);
Billups v. Jade, Inc.,
240 Neb. 494,
482 N.W.2d 269 (1992)
(case on dismissal docket twice over 3-year period); A. Hirsh,
Inc. v. National Hair Co.,
210 Neb. 397,
315 N.W.2d 236
(1982) (case on dismissal docket twice over 8-year period),
disapproved on other grounds, Fidler v. Life Care Centers
of America,
301 Neb. 724,
919 N.W.2d 903 (2018). And our
research reveals only one instance where the Supreme Court
affirmed a district court’s dismissal without the case being
reinstated or removed from the dismissal docket at least once
before. See Roemer v. Maly,
248 Neb. 741,
539 N.W.2d 40
(1995) (affirming dismissal from appeal brought after court
term had already expired).
As to the third factor, and the basis upon which the court
dismissed the case, Schultz admitted that “[n]ot much” had
been done by him to move the case forward. But after receipt
of the order to show cause, Schultz worked with the State’s
counsel to devise a progression order and offered to accelerate
that plan at the show cause hearing, which the State provided
was an accurate representation of their conversations. Although
“[n]ot much” had been done, evincing the absence of an
excuse for the delay, both counsels were prepared to move the
case forward.
The fourth factor the court should have considered was
whether there had been previous dismissals and reinstatements.
As stated above, no prior progression order was entered. The
Rules of Dist. Ct. of Ninth Jud. Dist. 9-11(C) (rev. 2010)
authorize, but do not require, the court to notify parties regarding the length of time a case has been pending. It states:
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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
SCHULTZ V. STATE
Cite as 32 Neb. App. 59
When directed by the court, the clerk shall prepare a list
of pending civil cases in which no action has been taken
for 6 months prior thereto. An order shall then be entered
requiring that cause be shown, within 30 days from entry
of order, as to why said case should not be dismissed for
lack of prosecution. Notice of said order shall be sent to
all attorneys of record and pro se parties. If good cause is
not shown, such cases shall be dismissed.
It does not appear from our record that any notice was sent
prior to the March 15, 2022, show cause order. Therefore, there
were no prior dismissals or reinstatements of Schultz’ case.
Because the court did not analyze the required factors, it is
difficult to weigh the court’s need to manage its docket and the
expeditious resolution of cases with the public policy favoring disposing cases on their merits. See Carrel v. Serco Inc.,
291 Neb. 61,
864 N.W.2d 236 (2015) (recognizing that upon
motion to vacate default judgment, law favors full opportunity to litigate issues). Implying a preference for addressing a
case on the merits, the Supreme Court has stated that a much
stronger showing is required to substantiate an abuse of discretion when an order dismissing a case is vacated than when it is
not. See Talkington v. Womens Servs.,
256 Neb. 2,
588 N.W.2d
790 (1999).
Both parties appeared at the hearing prepared to continue
to trial, evincing an agreement that the case should be heard
on its merits. Furthermore, there were no alternate sanctions
discussed by the district court, but Schultz suggested a shorter
discovery period and a willingness to undergo mediation. See
Gutchewsky v. Ready Mixed Concrete Co.,
219 Neb. 803,
366
N.W.2d 751 (1985) (affirming reinstatement of case dismissed
for lack of prosecution but imposing costs of appeal and attorney fees upon plaintiff), disapproved on other grounds, Fidler
v. Life Care Centers of America,
301 Neb. 724,
919 N.W.2d
903 (2018). Lesser sanctions were available to the district
court that could have allowed the case to be disposed of on its
merits, despite the delay.
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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
SCHULTZ V. STATE
Cite as 32 Neb. App. 59
As stated above, we review the court’s order for an abuse of
discretion. An abuse of discretion occurs when a trial court’s
decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience,
reason, and evidence. Talkington v. Womens Servs., supra.
Each case must be looked at with regard to its own peculiar
procedural history, and the situation at the time of the dismissal. Id.
Admittedly, Schultz’ case had been pending for 18 months
without movement. It is troubling that in his affidavit, counsel
for Schultz seems to admit that he had conducted no formal
discovery and could not point to any significant efforts he had
made to prepare the case for trial or otherwise seek resolution. However, the court had not issued any prior progression
orders and upon receipt of the order to show cause, the parties
drafted an agreed-upon progression schedule. The case had not
been previously dismissed and reinstated, and dismissal would
result in a bar to refiling. The State had no objection to the case
going forward.
We find these facts distinguishable from cases in which
the Supreme Court has upheld a dismissal for lack of prosecution. See, e.g., Billups v. Jade, Inc.,
240 Neb. 494,
482
N.W.2d 269 (1992) (dismissal affirmed for case pending
nearly 3 years with two prior dismissals and reinstatements);
Wilson v. Bryan Memorial Hosp.,
215 Neb. 446,
338 N.W.2d
796 (1983) (dismissal affirmed for cases pending over 3 years
with prior placement on the dismissal docket); Schaeffer v.
Hunter,
200 Neb. 221,
263 N.W.2d 102 (1978) (dismissal
affirmed for case pending 4 years with two prior dismissals
and reinstatements).
Although Schultz did not have a good excuse for the delay,
the remaining factors indicate good cause existed to not dismiss the case. The district court relied only on the work completed prior to the hearing, and the district court’s failure to
consider the remaining factors was untenable and an abuse of
discretion. Accordingly, we conclude the district court abused
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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
SCHULTZ V. STATE
Cite as 32 Neb. App. 59
its discretion in dismissing Schultz’ case for want of prosecution and an absence of good cause.
Motion to Reconsider or Reinstate.
For purposes of completeness, we note that evidence was
admitted at the hearing on the motion to reconsider or reinstate to further support the statements counsel made at the
show cause hearing. Email correspondence between Schultz
and the State evince the agreed-upon progression schedule
prior to the show cause hearing. Email from the State’s attorney to the district court’s bailiff expresses the State’s belief
that the case should continue and that a hearing on the matter
was unnecessary. And an affidavit submitted by Schultz’ counsel shows that both parties were willing to expedite the discovery process to complete discovery in 8 months. Despite the
evidence that both parties agreed the case should continue and
had a plan to further it, the district court still determined that
Schultz had not shown any cause to continue. As explained
above, the district court did not analyze the numerous factors
required for a show cause hearing, and its decision to overrule
Schultz’ motion to reconsider or reinstate, despite the evidence
admitted, further highlights an abuse of discretion.
CONCLUSION
We reverse the order of the district court dismissing Schultz’
complaint. Accordingly, we remand the cause for further
proceedings.
Reversed and remanded for
further proceedings.
