Brown v. Tate

GILBERT, Chief Judge. When a case lies dormant for more than two years, does a motion to dismiss for lack of prosecution, and ruling thereon, preclude dismissal for violation of Md. Rule 2-507 (c)? ⁴⁵⁶ In other words, if the clerk of court fails timely to do what should have been done, and defense counsel moves to dismiss for lack of prosecution, is that motion and ruling thereon a docket entry within the contemplation of Md. Rule 2-507 (c)? Before discussing the issue, we shall briefly recount the facts from which the matter arose. Michael A. Brown, individually and to the use of the United States of America, sued William Glen Tate, II, in the Circuit Court for Anne Arundel County.

Brown alleged that he was injured in September, 1979, through the negligence of Tate. At that time Brown was a midshipman at the United States Naval Academy. The medical services he received were furnished by the government of the United States. After some preliminary sparring, the case lay undisturbed from January 18, 1983, until counsel for Tate, on March 11, 1985, moved to dismiss for lack of prosecution.

Tate’s attorney grounded his motion on Md. Rule 2-507 (c), which provides: “An action is subject to dismissal for lack of prosecution at the expiration of one year from the last docket entry, other than an entry made under this Rule, Rule 2-131, [1] or Rule 2-132, [2] except that an action for divorce a mensa et thoro or for permanent alimony is subject to dismissal under this section only after two years from the last such docket entry.” Brown’s lawyer responded that the rule contemplates dismissal by the clerk and not by the court on motion by defendant’s counsel. To bolster his position, Brown’s counsel relied upon § (d) of Rule 2-507. It provides: ⁴⁵⁷ “When an action is subject to dismissal pursuant to this Rule, the clerk shall serve a notice on all parties pursuant to Rule 1-321 [3] that an order of dismissal for lack of jurisdiction or prosecution will be entered after the expiration of 30 days unless a motion is filed under section (e) of this Rule.” The circuit court (Williams, J.) agreed and on March 27, 1985, denied the motion to dismiss. On August 19, 1985, the clerk of the court mailed a notice of contemplated dismissal.

The notice stated, in pertinent part: “Pursuant to Maryland Rule 2-507 this proceeding will be ‘DISMISSED FOR LACK OF JURISDICTION OR PROSECUTION WITHOUT PREJUDICE,’ 30 days after service of this notice, unless prior to that time a written motion showing good cause to defer the entry of an order of dismissal is filed.” Brown, through his attorney, filed a “MOTION FOR DEFERRAL OF DISMISSAL.” He asserted that