Thomas v. Ramsburg

CATHELL, Judge. Appellant, John Frederick Thomas, appeals the dismissal of his complaint by the Circuit Court for Montgomery County and that court’s denial of his motion for reconsideration. On April 10, 1987, appellant sued appellee, William M. Ramsburg, for injuries sustained in an automobile accident. Appellee answered the complaint and filed several subsequent requests for discovery; some were complied with and some were not.

The circuit court issued several orders compelling discovery. It initially denied appellee’s motion to dismiss for failure to comply with discovery. On November 7, 1989, appellant filed supplemental answers to appellee’s interrogatories. This was the last paper filed by appellant before the case was dismissed.

Appellee subsequently deposed appellant and noted several other depositions, none of which apparently took place. On February 23, 1993, appellee filed a motion to dismiss for lack of prosecution pursuant to Maryland Rule 2-507(c), alleging that appellant had made no attempt to prosecute his case, that there had been no docket entries for more than one year, and that the inaction was without justification or excuse. In fact, appellant had filed no papers for over three years and appellee had filed no papers for almost two years. ³⁹⁸ Appellee certified in his motion to dismiss that it was mailed to appellant’s attorney, Michael J. Miller (Miller), on February 19, 1993, at his address of record in this case. The service was returned by the post office as undeliverable.

Appellee’s attorney, Robert G. Fiore (Fiore), as a courtesy to Miller, attempted to ascertain his correct address and remailed the motion on March 9, 1993. Miller admits receiving service on March 11, 1993. The service Miller received on March 11 indicated that it had originally been mailed on February 19, 1993. Miller states that he then contacted Fiore and asked that Fiore, request that the court allow Miller fifteen days from March 11 to respond.

The circuit court dismissed this case on March 17, 1993. Appellant filed a motion to reconsider on March 25 and requested a hearing on the motion; the motion was denied on April 13 without a hearing. This appeal followed. Appellant presents two questions, which we rephrase: 1.

Was appellant properly served with notice of appellee’s Motion to Dismiss pursuant to Maryland Rule 2-507 and given the proper time to respond? 2. Did the trial court abuse its discretion in denying appellant’s Motion to Reconsider without a hearing? We shall vacate the judgment of dismissal and remand as the court made an error of law in granting the motion. Because of our disposition, we shall not address question two.

We explain, but initially note that there is no dispute as to the basis for dismissal under Rule 2-507, only to the procedure in initiating the process. Rule 2-507 reads, 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 limited divorce or for permanent alimony is subject to dismissal under this section only after two years from the last such docket entry. ³⁹⁹ (d) Notification of Contemplated Dismissal.—When an action is subject to dismissal pursuant to this Rule, the clerk, upon written request of a party or upon the clerk’s own initiative, 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 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.

If a motion is filed and denied, the clerk shall make the entry promptly after the denial. The plain language of Rule 2-507 does not directly anticipate parties to an action filing motions to dismiss for lack of prosecution; only that the clerk of the court should initiate such dismissal proceedings. If a party desires to have the provisions of the rule activated, the only procedure created by the Rule is for that party to make a written request of the clerk to initiate the dismissal provisions. To the extent that we have interpreted our decision in Byrne v. Amalgamated Transit Workers’ Union, 73 Md.App. 551, 560 , 535 A.2d 503 , cert. denied, 312 Md. 601 , 541 A.2d 964 (1988), to permit the initial filing of a 2-507 motion for dismissal directly with the court as opposed to a request directed to the clerk, we hereby overrule and reject that interpretation.

We said in Byrne in respect to a party’s motion to dismiss an action pursuant to the Rule: “Subsection (c) is certainly broad enough to encompass, and by its terms does not preclude the possibility of, motions filed by a party. Such motions are not inconsistent with the purpose of the rale and do not prejudice the rights of a plaintiff.” Id., 73 Md.App. at 560 , 535 A.2d 503 . We added that, unlike notices initiated by the clerk, a motion filed by a party does not automatically cause a dismissal by the clerk if ⁴⁰⁰ no motion to defer dismissal is filed; rather, the court must rule on the motion to dismiss. Id. at 561 , 535 A.2d 503 .

In retrospect, we do not believe that the language of the Rule contemplates motions filed by parties directly with the court. Rule 2-507 requires that a party send an initial request to the clerk. Should the clerk fail to act upon such a request, a motion to the court requesting it to order the clerk to send the notice would appear to be appropriate. Even in Byrne , as it has been interpreted permitting direct motion practice, we noted a different burden of proof when parties directly move under Rule 2-507.

Quoting Powell, infra, we said: [W]here ... the court chooses to consider the motion to dismiss [of a defendant], the burden of providing evidence to support dismissal is on the moving party. In that situation, while the standard applicable to a ruling on the motion could be no more lenient, it most probably would be more stringent, ordinarily requiring an allegation and proof of prejudice. See Powell, 310 Md. at 308, 529 A.2d 352 . Byrne, 73 Md.App. at 560 , 535 A.2d 503 .

In other words, the movant was required to plead and prove prejudice. Merely alleging no docket entries for more than one year was insufficient. Appellee failed to allege or prove prejudice resulting from appellant’s delay in prosecuting the case. Thus, even if we were construing Byrne as applicable, we would nevertheless hold that the court erred in granting appellee’s motion.

This case highlights two problems with parties filing 2-507 motions: (1) the proper time for response to such motions and (2) whether, when such a motion is filed by a party, the clerk is still required to send a notice of contemplated dismissal. Time for Response Maryland Rule 2—311(b) sets forth the time for response to motions in general, and states in pertinent part: (b) Response.—Exeept as otherwise provided in this section, a party against whom a motion is directed shall file a response within 15 days after being served with the motion, ⁴⁰¹ or within the time allowed for a party’s original pleading pursuant to Rule 2-321 (a), whichever is later.... If a party fails to file a response required by this section, the court may proceed to rule on the motion. This rule was apparently relied on in the instant case.

Appellee’s Rule 2-507 motion was mailed to appellant on February 19, 1993. Allowing three days for mailing, Maryland Rule 1-203(d), and fifteen days to respond, a response was due by March 9, 1993. No response was filed and, pursuant to the Rule, the court proceeded to rule on the motion. In contrast, Rule 2-507, which does not explicitly provide for the filing of an initial direct motion by parties, but contemplates instead a request to the clerk, clearly requires the clerk to allow thirty days for a response.

Subsection (d) mandates that the clerk serve a notice of contemplated dismissal on all parties and wait thirty days after service before dismissing the action. Rule 2-507(e) allows the court to defer dismissal “[o]n motion filed at any time before 30 days after service of the notice [required by Rule 2-507(d) ] ... for good cause shown ... for the period and on the terms it deems proper.” Further, when the clerk initiates dismissal and sends notice, if a motion to defer dismissal has not been filed within thirty days, the clerk can enter the dismissal on the docket. Rule 2-507(f) reads: 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 Rule makes no provision for the court’s ruling on a 2-507 motion filed directly by a party and therefore offers no real guidance as to which is the proper time period for response. Rule 2-507 specifically states, and emphasizes, that the clerk must wait thirty days for a response before acting to dismiss the case, rather than 15 days under the rules governing normal motion practice. Rule 2-507 motions filed by parties should be considered requests to the clerk to ⁴⁰² initiate the process, which would then require the clerk to allow thirty days for responses as contemplated by Rule 2-507. It is both logical and a well known canon of statutory construction that one looks to the specific rather than the general.

Parties responding to motions filed under Rule 2-507 would naturally look to that Rule, rather than Rule 2-311, for guidance on how and when to respond. It is, in fact, necessary that one look to Rule 2-507 to ascertain the proper form for a response and the standard by which a response is judged. Notice by Clerk Appellant argued below, and raises on appeal, the fact that the clerk’s office in the Circuit Court for Montgomery County did not send out the notice required by Maryland Rule 2—507(d) before entering an order dismissing the case for lack of prosecution. Rule 2-507(d) states that 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....” Neither the docket entries nor the court’s file indicate that the notice required by Rule 2—507(d) was sent by the clerk to appellant’s attorney’s address of record in this case.

Appellee does not allege that the clerk sent the notice. In fact, he stated in his response to appellant’s motion for reconsideration that “Rule 2-507 does not require the Clerk to send a notice of contemplated dismissal, nor require the defendant to request one, when the rule is being evoked [sic] by a party through a motion’s [sic] practice.” Appellee offers no authority for this proposition. In Brantley v. Fallston Gen. Hosp., Inc., 333 Md. 507 , 636 A.2d 444 (1994), the Court of Appeals briefly addressed, but did not decide, the issue.

In Brantley , an action was dormant for over one year. The defendant filed an initial direct motion to dismiss with the court for lack of prosecution under Rule 2-507. Id. at 509 , 636 A.2d at 445 . The motion was granted by the court without a hearing.

Plaintiffs appealed to the Court of Special Appeals, and we issued a per curium opinion. The ⁴⁰³ Court of Appeals granted certiorari and ultimately ordered our judgment vacated and the appeal dismissed on unrelated grounds. In its decision, after noting our opinion, it stated: “The [Court of Special Appeals] determined that Rule 2-507 permits a motion to dismiss to be filed by a party, and in that instance does not require the clerk of the court to issue the notice of contemplated dismissal.” Id., at 510 , 636 A.2d 445 . This sentence was followed by a footnote, which stated: In so holding, the Court of Special Appeal adhered to- the view it had taken earlier in Byrne v. Amalgamated Transit Union, 73 Md.App. 551 , 535 A.2d 503 , cert. denied, 312 Md. 601 [ 312 Md. 601 ] (1988).

Because this appeal must be dismissed, we express no opinion as to the validity of that holding. Id. at n. 3. The Court of Appeals’s footnote cryptically indicates that it may not agree with the interpretation of Byrne in our unreported Brantley decision. In Byrne, 73 Md.App. 551 , 535 A.2d 503 , Byrne’s initial complaint was dismissed without leave to amend.

On appeal to this Court, the demurrer was sustained, but the denial of leave to amend was reversed. Id. at 554 , 535 A.2d 503 . Certiorari was then denied by both the Court of Appeals and the United States Supreme Court. There was no docket activity for several years after the Supreme Court denied certiorari.

Id. Amalgamated eventually filed a motion to dismiss for lack of prosecution pursuant to Rule 2-507(c). Byrne responded, alleging that he was waiting for the clerk to send a notice of trial date before amending his complaint. Id. at 554-55 , 535 A.2d 503 .

The trial judge at the 2-507 hearing primarily based his decision on his finding that the failure of the clerk of the court to assign a trial date was not an excuse for the two year delay. Id. at 556 , 535 A.2d 503 . The matter of an initial direct motion to the court was not the primary issue. The issue of whether the clerk has an obligation to send a notice of contemplated dismissal even if a party files the 2-507 motion was not squarely addressed in Byrne .

This Court’s ⁴⁰⁴ statement: “Rather than the clerk sending a notice of impending dismissal to the parties, appellee moved pursuant to Rule 2-507(c) to dismiss appellant’s action for lack of prosecution,” id. at 559 , 535 A.2d 503 , is the only real indication in Byrne that the clerk may not have sent notice to the parties. Byrne did not address the inherent conflict between the provisions of Rule 2-507 requiring the clerk to send notice, and its holding that it was not inconsistent with Rule 2—507(d) for parties to file 2-507 motions. Maryland Rule l-201(a) states: When a rule, by the word “shall” or otherwise, mandates or prohibits