A divided Indiana Court of Appeals has permitted a man to prosecute his complaint against an Indianapolis Metropolitan Police Department employee who crashed into his vehicle. The appellate majority concluded the extreme remedy of dismissal for failure to prosecute was not warranted in the case.
While driving onto Interstate 65 in 2016, Indianapolis Metropolitan Police Department employee Brandon Cooper collided with the vehicle in front of him. The driver of that vehicle, Mahamud Sharif, was injured and required medical attention.
Sharif filed a tort claim notice nearly two years later and subsequently filed a complaint against Cooper, the IMPD and the City of Indianapolis. One year later, Sharif perfected service on the defendants, who then filed an answer and a motion to dismiss the complaint. Following a hearing, the Marion Superior Court granted the defendants’ motion to dismiss pursuant to Indiana Trial Rule 41(E) for failure to prosecute.
Sharif appealed, arguing that the trial court abused its discretion by granting the Rule 41(E) motion to dismiss and a majority of the Indiana Court of Appeals agreed with Sharif, reversing and remanding the trial court’s decision as an abuse of discretion in Mahamud Sharif v. Brandon Cooper, City of Indianapolis, and Indianapolis Metropolitan Police Department, 19A-CT-1701.
The appellate majority found five of nine factors determining whether to dismiss a case for failure to prosecute worked in Sharif’s favor against the defendants.
“Although the City claims that there is ‘some prejudice weighing in favor of dismissal,’ the City fails to cite to any evidence that prejudice exists, such as the unavailability of a specific witness. There is no evidence that Sharif has deliberately proceeded in a dilatory fashion; rather, testimony reveals that once Sharif’s counsel discovered his omission in perfecting the service, he proceeded without delay. Only after service was perfected, did the City file a motion to dismiss,” the majority wrote. “Finally, even though no lesser sanctions are identified, we note that there is a clear preference for deciding this case on the merits; and rather than being forced to act by a threat of dismissal, Sharif’s counsel served the City once he discovered the lack of service.
“… Given the unique posture of this case where the Complaint was filed but service was not perfected until a year later, there was no prejudice to the City, and the factual background which involved personal injuries that required medical attention, we find that the extreme remedy of dismissal is not warranted,” the majority concluded.
Dissenting in a separate opinion, Judge Elaine Brown argued that the personal family reason provided by Sharif’s counsel for the delay was not justifiable and that by the time the defendants had received the complaint, three years had passed from the date of loss.
“Accordingly, I would find the prejudice factor enunciated in (Belcaster v. Miller, 785 N.E.2d 1164, 1167 (Ind. Ct. App. 2003), trans. Denied) and all of the Belcaster factors taken together favor dismissal. As there is evidence to support the court’s decision and there was no clear abuse of discretion, I would affirm the trial court,” Brown wrote.
This article was first published by The Indiana Lawyer.