(Mineral County 09-C-86)
Kenneth Bing, by counsel John H. Treadway Jr., Jeffrey S.
Bowers, Mark D. Obenshain, and Justin M. Wolcott, appeals the
Circuit Court of Mineral County's July 11, 2018, and July
30, 2018, orders granting respondent's motion to dismiss
for failure to prosecute. Respondent Lumber and Things, Inc.,
by counsel David Collins, filed a response.
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the circuit court's order is appropriate under
Rule 21 of the Rules of Appellate Procedure.
October 30, 2008, petitioner, then employed by respondent,
sustained a workplace injury that required the partial
amputation of his hand. Petitioner retained David E. Furrer,
a Maryland-based attorney licensed to practice in this state,
to prosecute a deliberate intent cause of action against
respondent, claiming that respondent intentionally removed
the protective guards from the miter saw on which petitioner
sustained his injury. Mr. Furrer filed a complaint on
petitioner's behalf on July 27, 2009.
moved to dismiss the complaint for insufficient service of
process and return of service of process. Mr. Furrer
responded to this motion, claiming that service was proper,
but the circuit court, on November 4, 2009, determined
otherwise and afforded petitioner thirty days to perfect
proper service of process. Ultimately, Mr. Furrer effectuated
proper service of process.
served interrogatories and requests for production of
documents on February 10, 2010. Responses to the requests
were not timely filed, nor were they filed after respondent
twice requested responses. Accordingly, respondent moved to
compel responses on April 16, 2010. Mr. Furrer (and
petitioner) failed to appear at the hearing on the motion to
compel. The circuit court granted respondent's motion and
directed that responses be filed.
April 28, 2010, respondent served requests for admission upon
petitioner. When responses to these requests were similarly
unforthcoming, respondent moved for summary judgment arguing
that, as the requests were now deemed admitted, petitioner
would be unable to prevail at trial. Mr. Furrer filed an
"answer" to the motion for summary judgment
claiming that he never received the requests for admission.
Mr. Furrer provided the court with affidavits from two
paralegals in his law office, who each asserted that they had
no knowledge of any requests for admission having been
received by their office in the underlying case. The court
denied respondent's motion for summary judgment on
September 3, 2010.
entry of that order, nearly eight years passed without
activity in the case below. The next activity occurred on
June 4, 2018, when petitioner filed a notice of substitution
of counsel. Four days later, he served his first discovery
requests through his newly-retained counsel. Respondent filed
a motion to dismiss for failure to prosecute on June 28,
2018. In his response to this motion, petitioner asserted
that Mr. Furrer never informed him of the motion to dismiss
for defective service, the discovery defaults, or the motion
for summary judgment. Petitioner claimed that Mr. Furrer
never provided letters, e-mails, or phone messages with
updates in his case, but that phone records document that he
called Mr. Furrer's office no less than twenty-three
times in the period following the denial of respondent's
motion for summary judgment. When petitioner called Mr.
Furrer's office, he was reportedly told that "these
cases take time," "we are working on your
case," or to "be patient."
further detailed that he first learned that Mr. Furrer was no
longer employed by his Maryland law firm and that the firm,
having no other attorneys licensed in West Virginia, could
not represent him in a September of 2017 telephone call to
Mr. Furrer. Petitioner stated that his initial attempts to
secure alternate representation were unsuccessful, but he
eventually retained current counsel on May 21, 2018, just
prior to reinitiating activity in this case. Finally,
petitioner asserted that his current counsel learned that Mr.
Furrer's law license had been indefinitely suspended in
Maryland in January of 2018, and petitioner characterized the
conduct leading to Mr. Furrer's license suspension as
"strikingly similar" to that exhibited by Mr.
Furrer in his representation of petitioner.
a hearing on the motion to dismiss, the circuit court granted
respondent's motion on July 11, 2018. The court found
that in the approximate ten-year period that had elapsed
since petitioner's injury, respondent's workforce had
almost entirely turned over, its plant had been retooled, and
the equipment on which petitioner was injured was no longer
available for viewing, inspection, or examination. The court
concluded that these facts rendered further prosecution
highly prejudicial to respondent's ability to defend the
suit, and that petitioner "appears to have other
remedies available to him." The court amended its
dismissal order on July 30, 2018, to include the additional
findings that the delay in prosecution was not attributable
to petitioner, that Mr. Furrer falsely told petitioner that
his case was progressing, that petitioner acted diligently in
communicating with counsel to ascertain the status of his
case, and that the prejudice to respondent caused by the
delay in prosecution was equally prejudicial to petitioner.
This appeal followed.
reviewing a circuit court order dismissing a case for
inactivity under Rule 41(b) of the West Virginia Rules of
Civil Procedure, we apply an abuse of discretion
standard. See Caruso v. Pearce, 223 W.Va.
544, 547, 678 S.E.2d 50, 53 (2009). The scope of review is
limited as "[o]nly where we are left with a firm
conviction that an error has been committed may we
legitimately overturn a lower court's discretionary
ruling." Id. (citations omitted).
appeal, petitioner argues that the circuit court abused its
discretion in dismissing the action because Mr. Furrer's
"extraordinary pattern of neglect and deception"
demonstrated good cause for not dismissing it. Petitioner
asserts that he attempted to contact Mr. Furrer numerous
times and relied on Mr. Furrer's assurances that his case
was progressing. Additionally, petitioner retained new
counsel as soon as he was able. Relying on Covington v.
Smith, 213 W.Va. 309, 582 S.E.2d 756 (2003), in which we
reversed the circuit court's denial of a motion to
reinstate an action dismissed for failure to prosecute,
petitioner urges reversal here and states that any prejudice
to respondent caused by the delay is outweighed by Mr.
Furrer's pattern of neglect and deception.
outlined, in Syllabus Point 3 of Dimon v. Mansy, 198
W.Va. 40, 479 S.E.2d 339 (1996), certain guidelines a circuit
court must follow in considering a motion to dismiss under
Rule 41(b). Procedurally,
the plaintiff bears the burden of going forward with evidence
as to good cause for not dismissing the action; if the
plaintiff does come forward with good cause, the burden then
shifts to the defendant to show substantial prejudice to it
in allowing the case to proceed; if the defendant does show
substantial prejudice, then the burden of production shifts
to the ...