Powell v. Gutierrez

³⁰⁴ COLE, Judge. We are asked today to decide 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). The relevant facts can be quickly recounted. On May 11, 1983, Edward Powell 1 filed a negligence action in the Circuit Court for Queen Anne’s County against Herbert Gutierrez and Gutierrez’s employer.

On July 8, 1983, Gutierrez filed a counterclaim against Powell, and on March 8, 1984, Gutierrez served Powell with interrogatories. The docket record for the case then remained silent from March 8, 1984 to March 27, 1985. On the latter date, the parties were notified by the circuit court that the case would be dismissed unless a motion showing good cause to defer an entry of dismissal was filed. Powell promptly filed a motion to defer dismissal and informed the court that he was in the process of answering Gutierrez’s interrogatories and was ready to pursue his claim diligently.

The circuit court denied Powell’s motion, finding that he had “failed to show any cause for deferral of dismissal.” Powell then filed an amended motion to defer dismissal. Powell’s second motion informed the court that his inactivity had been caused by his involvement in an appeal of a Workmen’s Compensation Commission decision relating to the injury suffered in the accident upon which the instant suit was being brought. In addition, the amended motion explained that Powell’s first attorney had left the law firm; the attorney who had taken over his files had then disassociated himself from the firm; and the latest attorney in the firm to represent Powell had only recently assumed responsibility for the case. The amended complaint also reiterated that Powell was preparing answers to Gutierrez’s interrogatories and was anxious to proceed with the case.

The circuit court “read and considered” Powell’s ³⁰⁵ second motion and held that the motion failed to “set forth ‘good cause’ within the meaning of Rule 2-507(e) to warrant opening or amending the judgment of dismissal.” Powell appealed, and the Court of Special Appeals, in an unreported per curiam opinion, affirmed the circuit court ruling. Powell v. Gutierrez, No. 757, Sept. Term, 1985, filed Feb. 19,1986. We granted Powell’s petition for certiorari. Before us, Powell argues that the good cause standard found in Maryland Rule 2-507(e) is too vague to provide guidance to practitioners or to afford effective appellate review.

He urges us to adopt the standard enunciated by the Fourth Circuit 2 in its interpretation of Rule 41(b) of the Federal Rules of Civil Procedure. Gutierrez, on the other hand, implores us to apply the test we set forth in Stanford v. District Title Insurance Co., 260 Md. 550 , 273 A.2d 190 (1971). We shall do neither. Present Rule 2-507 (the progeny of old Rule 530) provides in pertinent part as follows: (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____ (d) Notification of Contemplated Dismissal.—When an action is subject to dismissal pursuant to this Rule, the ³⁰⁶ clerk shall serve a notice on all parties ... 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 any time . 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. Federal Rule 41(b) states in pertinent part: (b) Involuntary Dismissal. Effect thereof.

For failure of the plaintiff to prosecute ..., a defendant may move for dismissal of an action or of any claim against him____ Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision ... operates as an adjudication upon the merits. As we see it, while the Federal Rule and the Maryland Rule are targeted at solving the same problem—removing dead cases from the overcrowded dockets of busy trial courts—there are three important differences between the rules. First, the Maryland Rule specifically provides the standard to be used by a judge in deciding whether to defer the dismissal of a case. The rule provides that a court may defer dismissal “for good cause shown.” The Federal Rule, on the other hand, is silent as to what standard a judge should use when determining whether to grant a motion to dismiss.

Second, the Maryland Rule specifically sets forth the time period that activates a notice of contemplated dismissal for lack of prosecution. That period is “one year from the last docket entry.” Again, the Federal Rule is silent, and a case may be dismissed after any period of time. Third, under the Maryland Rule, a case is dismissed without prejudice. A dismissal under the Federal Rule, ³⁰⁷ however, is with prejudice and thus acts as an adjudication on the merits.

Consequently, the plaintiff is forever barred from bringing his suit again. These three differences prompt us to reject the federal courts’ interpretations of the Federal Rule as a solution to the Maryland problem. Gutierrez would have us literally apply the lack of diligence standard enunciated in Stanford and approved in cases that have followed. See, e.g., Langrall, Muir & Noppinger v. Gladding, 282 Md. 397 , 384 A.2d 737 (1978); Cooney v. Board of County Comm’rs, 21 Md.App. 57 , 318 A.2d 231 (1974).

In Stanford , we were called upon to determine if an action should be dismissed under old Maryland Rule 530. We stated that when a trial judge determines whether to defer dismissal, “the primary focus of his inquiry should be on [the plaintiff’s] diligence and whether there has been a sufficient amount of it during ... [the] period of inaction for the court to affirmatively conclude that the case should not be automatically dismissed.” Id. [260 Md.] at 555, 273 A.2d at 192-93 (emphasis added). The effect of applying Rule 2-507 under this diligence standard is to dismiss a case because of inordinate delays irrespective of the case’s vitality. As we see it, this defeats the Rule’s basic purpose of removing dead cases from the docket.

Therefore, despite any indications in Stanford and its progeny to the contrary, docket inactivity in a case for twelve months is not an absolute