Byrne v. Amalgamated Transit Workers' Union

ROBERT M. BELL, Judge. This is an appeal by Richard Byrne, appellant, from the judgment of the Circuit Court for Baltimore City granting a Motion to Dismiss for lack of prosecution, filed by Amalgamated Transit Union, Division 1300, AFL-CIO, appellee. Appellant asks us to address five questions, namely: 1. Did the lower court err in granting defendant Amalgamated Transit Union, Division 1300, AFL-CIO’s motion to dismiss for lack of prosecution when no notice was served upon plaintiff by the clerk of the court? 2.

Did the lower court abuse its discretion by failing to consider appellant’s motion for deferral of dismissal? 3. Did the lower court err in requiring plaintiff to amend his pleading absent a time requirement imposed by the Court of Special Appeals’ mandate? 4. Did the lower court err in dismissing the action without any showing by appellee that it had been prejudiced in any way? ⁵⁵⁴ 5. Did the lower court err in dismissing plaintiffs cause of action for failures attributable to his attorneys?

We believe, however, that stripped to the bare essential, the five questions constitute but one: whether the trial judge abused his discretion in dismissing appellant’s action. The seeds of this appeal were first sown in 1983, when appellee’s demurrer to appellant’s action against appellee for breach of duty of fair representation was sustained, without leave to amend. Appellant had also sued the Maryland Transit Administration, his employer, as to which the court granted a Motion for Summary Judgment and Raising Preliminary Objection. The latter judgment was affirmed by this Court.

See Byrne v. MTA, et al., 58 Md.App. 501 , 473 A.2d 956 , cert. denied, 300 Md. 794 , 481 A.2d 239 (1984). Appellee’s demurrer was sustained because the court found that the federal statute, upon which appellant’s suit was based, would not support a State cause of action where the federal court lacked jurisdiction. Although we affirmed, on appeal, the sustaining of the demurrer, Byrne v. MTA, et al., 58 Md.App. at 510 , 473 A.2d 956 , we reversed that portion of the judgment which denied appellant the opportunity to amend. 58 Md.App. at 509 , 473 A.2d 956 . Our mandate issued on May 14, 1984.

Cross-petitions for Writ of Certiorari, filed by both appellant and appellee, were denied by the Court of Appeals on September 14, 1984. Appellant’s Petition for Writ of Certiorari to the Supreme Court of the United States was likewise denied on April 15, 1985. There having been no docket entries in the case since September 17, 1984, when the denial of certiorari by the Court of Appeals was noted, and no apparent activity in the case since the Supreme Court denied certiorari, appellee, on December 15, 1986, filed a Motion to Dismiss for lack of prosecution. In the memorandum in support of the motion, appellee traced the procedural history of the case, concluding with a request that “pursuant to Rule 2-507(c), Maryland Rules of Civil Procedure, ... this cause of action be dismissed, with prejudice, since more than two years have ⁵⁵⁵ passed since the last docket entry in the above-captioned matter.” Appellant responded by filing an Answer to Motion Of Defendant Amalgamated Transit Union, Division 1300, AFL-CIO, To Dismiss For Lack Of Prosecution and Motion for Deferral Of Dismissal.

Although he admitted the procedural history recounted by appellee, appellant complained that he had not received a trial date “pursuant to the Automatic Assignment System of the Circuit Court for Baltimore City” and averred that he “was under the impression that the Civil Assignment Office was sending out notices of a settlement conference and at the settlement conference, an agreed upon trial date was set.” Appellant also alleged: 11. Plaintiff has a substantial and meritorious cause of action. a. This is an unfair labor representation case and the plaintiff alleges that because of the union’s lack of adequate representation at an arbitration hearing that his position with Mass Transit Administration was terminated. 12. It would be in the interest of justice to allow this case to proceed to trial.

After a hearing, the trial judge granted appellee’s motion and dismissed appellant’s action, reasoning, in part: The cert, petition was denied in 1985. This is now 1987. The plaintiff has slept on his rights. If he now is granted leave to amend, it would take a long time for everyone to digest the amendment, to go through the discovery period and deposition proceedings, and then have a trial date.

I find that Mr. Byrne has waited for too long and the motion to dismiss is granted. Yes, I have discretion. No, I am not inclined to use it any differently than how I read Driver 1 . ⁵⁵⁶ The court also rejected appellant’s contentions that he justifiably waited for the clerk to set a trial date and that it was appropriate for the clerk to set a trial date before appellant amended his cause of action. As to the latter point, the court stated: You are supposed to make the amendment before there is a trial date, so that they know what to defend against.

They cannot defend against a cause of action that has been ruled on by the Court of Special Appeals to be insufficient. All the Court of Special Appeals gave you, in terms of life in the case, was an opportunity to amend. You cannot have a trial first and then the amendment second, not under these circumstances. Maybe in some other circumstance, where there is a proper cause of action and you go to trial and there is some reason to amend after the trial starts, but here, you want to put the cart before the horse.

You want to have your trial on some non-existent cause of action and then amend it to an existent cause of action after the trial is over. You can not do that. The comments of the court in colloquy with counsel suggest that its ruling was based on Md. Rule 2-507, as interpreted and applied by case law 2 . The court found Driver to be particularly instructive on the question whether a failure on the part of the court clerk to fulfill an obligation placed upon it relieved appellant of his obligation to proceed with the prosecution of his case.

See 29 Md.App. at 359-60, 348 A.2d 38 . ⁵⁵⁷ Maryland Rule 2-507, Dismissal For Lack of Jurisdiction Or Prosecution, provides, in pertinent part: (c) For lack of prosecution.—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, or Rule 2-132, 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. (d) Notification of contemplated dismissal.—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 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. (e) Deferral of dismissal.—On motion filed at anytime before 30 days after service of the notice, the court for good cause shown may defer entry of the order of dismissal for the period and on the terms it deems proper. (f) Entry of dismissal.—If a motion has not been filed under section (e) of this Rule, the clerk shall enter on the docket “Dismissed for lack of jurisdiction or prosecution without prejudice” 30 days after service of the notice.

If a motion is filed and denied, the clerk shall make the entry promptly after the denial. The most recent statement of the application of this rule was made by the Court of Appeals in Powell v. Gutierrez, 310 Md. 302 , 529 A.2d 352 (1987). Because we believe the application of the rule to be germane to the resolution of the issue before us, we will review the teachings of that case. In Powell , after plaintiff had filed a negligence action against defendant and the defendant had counter-claimed and served interrogatories on the plaintiff, the docket record for the case lay dormant for more than a year.

In response to the clerk’s notice of impending dismissal for lack of prosecution, the plaintiff moved, pursuant to Rule ⁵⁵⁸ 2-507(e), to defer dismissal, representing that he was in the process of answering interrogatories and that he was ready diligently to pursue his claim. The court denied the motion, finding that the plaintiff had not shown “any cause for deferral of dismissal”. The Court of Appeals was thus squarely presented with the question of “what standard a trial judge should use when ruling on a motion to defer dismissal for lack of prosecution under Maryland Rule 2-507(e).” 310 Md. at 304 , 529 A.2d 352 . In reversing the judgment of the trial court, the Court clearly stated the purpose of the Rule and its predecessor, Rule 530: Neither Rule 530 nor Rule 2-507 was promulgated to penalize plaintiffs for having lax attorneys.

Their primary focus was on pruning the docket of dead cases. A dead case is one in which neither party demonstrates an interest in having the issue resolved. This circumstance occurs for varying reasons, ie. the parties may leave the jurisdiction, they may settle their dispute, or other circumstances may make the issue no longer viable. In any event, parties often neglect to dismiss their suits when their reasons for further prosecution have dissipated.

These are the kind of cases that Rule 2-507 was devised to eliminate under a simple procedure. 310 Md. at 308 , 529 A.2d 352 . Therefore, the Court said, while the passage of twelve months provides a signal to the clerk that a case may be dead and ready for dismissal, “docket inactivity in a case for twelve months is not an absolute indicium of a loss of litigious vitality”. 310 Md. at 307, 308 , 529 A.2d 352 . Thus, it is not a basis for automatic dismissal. Where a party files a motion to defer dismissal, only when the court has determined that “good cause” has not been shown may the case be dismissed for lack of prosecution.

On the other hand, failure to file a motion to defer dismissal, because it confirms the lack of “litigious vitality”, results in the automatic dismissal of the claim. 310 Md. at 308 , 529 A.2d 352 . Regarding “good cause,” the Court instructed: ⁵⁵⁹ To show “good cause”, the party filing a motion to defer dismissal must demonstrate to the court that he is ready, willing, and able to proceed with the prosecution of his claim and that the delay in prosecution is not wholly without justification, and that ... if the defendant has suffered serious prejudice because of the delay, so as to impede substantially his ability to defend the suit, the trial court must balance the plaintiffs right to maintain his suit against the prejudice to the defendant. This matter we leave to the sound discretion of the trial court. 310 Md. at 308-309 , 529 A.2d 352 . The Court also observed: Lest it be forgotten the defendant as well as the plaintiff