First of all, is this use of “SCOW” for the Supreme Court of Washington going to catch on? I mean, people use SCOTUS all the time, and SCOW is just as good, right? Let’s make it happen!
Anyway, yesterday SCOW issued a decision in Business Services of America II, Inc. v. WaferTech LLC (Wash. April 19, 2012), which deals with dismissals for lack of prosecution under CR 41(b)(1). The opinion was authored by Judge Chambers and there was a dissent authored by Chief Judge Madsen (joined by Judge Johnson). Sadly, despite a party named “WaferTech,” the case has nothing to do with delicious ‘Nilla Wafers. Apparently, WaferTech makes semiconductor wafers, like this:
The facts of the case are relatively simple: Business Services of America II (“BSA”) and WaferTech (“WT”) had a contract dispute way back in 1998. BSA sued WT under a variety of causes of action, all of which were dismissed at trial by the trial judge. The Court of Appeals affirmed most of the dismissals, but reversed with respect to one lien claim. The case was therefore remanded for trial on the lien claim in 2004.
And then basically nothing happened for five years. WT filed a satisfaction of judgment for the attorneys’ fees in 2005. In July 2006, the trial court issued an order stating that either the parties needed to pick up their trial exhibits or he was going to throw them out. Nobody responded. He threw them out. And in May 2008, BSA’s counsel filed a notice of intent to withdraw, which stated that the case had been dismissed.
That was all the action on the case until June 2009 when BSA noted the case for trial on the lien claim. WT subsequently moved to dismiss the case for failure to prosecute. The trial court granted the motion, apparently on the basis that CR 41(b)(1) didn’t apply (we’ll get to that in a moment) and that he had discretion to dismiss the case. The Court of Appeals disagreed, which brings us to the Supreme Court.
CR 41(b) states in relevant part:
For failure of the plaintiff to prosecute or to comply with these rules or any order of the court, a defendant may move for dismissal of an action or of any claim against him or her.
So that’s the “may” part — if the plaintiff fails to prosecute, the defendant may move to dismiss. Here comes the “shall” parts. CR 41(b)(1) goes on to state:
Any civil action shall be dismissed, without prejudice, for want of prosecution whenever the plaintiff . . . neglects to note the action for trial or hearing within 1 year after any issue of law or fact has been joined, unless the failure to bring the same on for trial or hearing was caused by the party who makes the motion to dismiss. Such motion to dismiss shall come on for hearing only after 10 days’ notice to the adverse party. If the case is noted for trial before the hearing on the motion, the action shall not be dismissed.
The Court, based on precedent, read CR 41 as occupying the entire space of inaction-related dismissals. While noting that, generally, “dismissal of an action for want of prosecution is in the discretion of the court in the absence of a guiding stature or rule of court,” the Court made clear that CR 41 is a rule that restrains the trial court’s discretion. It interpreted CR 41 as a “prohibition of dismissal” in cases where the plaintiff notes the case for trial before the hearing on a motion to dismiss. The only exception to this “prohibition” is if the dismissal is based on a delay “caused by unacceptable litigation practices other than mere inaction.” But if the issue is a plaintiff’s inaction, then according to the SCOW CR 41 controls. The trial court shall dismiss if the plaintiff does not note for trial, but shall not dismiss if the plaintiff notes for trial.
I think the ship has sailed on this point, but I would read the rule differently. I think the more sensible reading of the “shall” toward the end of CR 41 is as a mandatory exception to the mandatory dismissal set forth in the first part of the rule. In other words, if the plaintiff does not note the case for trial within the one-year deadline, then the court shall dismiss the case under CR 41, unless the defendant subsequently notes the case for trial, in which case “the action shall not be dismissed” under the mandatory dismissal provision of CR 41(b)(1). But in that later case, I would read CR 41 to still give the trial court discretion to dismiss the case for “mere inaction.”
Now, of course this reading is open to the objection that I’m adding language to the rule; the rule says “the action shall not be dismissed”; it does not say “the action shall not be dismissed pursuant to the mandatory dismissal provision set forth above.” But some implied language needs to be added at the end of the sentence to limit the scope of those words because they cannot mean what they literally mean. That is, once the plaintiff notes the case for trial, it cannot be true that the case “shall not be dismissed” for any reason whatsoever. The filing of a trial notice does not shield the action from all dismissals! Rather, the rule’s language means that the case shall not be dismissed for some limited reason, and it seems to me that the reasonable reason is the mandatory dismissal earlier in the paragraph.
But that’s not what the Supreme Court has held and, as much as I hate to admit it, this blog does not have the authority to overrule SCOW precedent. Accordingly, once BSA noted the case for trial, the trial judge lost the ability to dismiss the case for “mere inaction.” WT advanced two arguments for why BSA’s claims were appropriately dismissed despite the trial note: (1) that BSA engaged in “unacceptable litigation practices” of the sort that took the case out of CR 41(b), so the trial court’s discretion was still in play, and (2) that CR 41(b) didn’t apply because the case back in the trial court on remand.
According to the SCOW, the trial court relied primarily on the second argument in dismissing the case — the argument being that the action had already been noted for trial once, the issues had already been joined, and so on, so it made no sense to apply the rule. Well, the SCOW wasn’t buying it, and frankly, neither do I. Remand is like a second round, but all the same rules should apply.
On the “unacceptable litigation practices” argument, the SCOW looked to previous cases with examples of sufficiently egregious conduct to trigger the exception. Such conduct included failing to show up for trial, failure to show up for a pre-trial conference, and… wait for it… the late filing of briefs. The horror! That’s a pretty low bar if you ask me.
But the Court determined that BSA’s actions in this case failed to rise to that level. The failure to respond to the order regarding collecting exhibits and the language of BSA’s attorney’s notice of withdrawal were not sufficiently “unacceptable” to remove this case from the mandatory provisions of CR 41. Accordingly, there was no discretion to dismiss the case.
The dissent disagreed on two related points. First, it thought that BSA’s conduct was sufficiently unacceptable to take it beyond “mere inaction.” In looking at previous cases, the dissent noted that the filing of late briefs had been unacceptable enough, and late briefs ain’t really worse than what BSA did here. Second, in assessing the unacceptability of BSA’s conduct, the dissent thought it inappropriate to evaluate BSA’s conduct in light of WT’s conduct. WT was the defendant, it therefore had no duty to move the case forward. Accordingly, the dissent thought that the majority mistakenly excused BSA’s conduct by comparing it to WT’s own lack of activity.
Okay, so what to make of this case. A few things: I agree with the dissent that in evaluating BSA’s conduct, it does not make sense to compare BSA’s delay to WT’s “delay.” Who cares if WT delayed? As long as WT’s actions didn’t cause BSA’s delay, then BSA should be held responsible for moving the case forward. BSA is the plaintiff! The majority’s ink regarding WT’s actions is, in my view, unhelpful dicta. BSA did nothing to move the case forward for more than four years before noting the trial. That’s pretty bad.
The majority denied that it was placing fault with WT. In a footnote, it explained that its blame of WT was just explaining what a defendant should do if it wants to get a case dismissed for lack of prosecution:
We do suggest that if a defendant wants a case dismissed for want of prosecution, moving for dismissal before the opponent notes its case for trial is the best way for the defendant to accomplish its goal.
This case had a bad fact for WT: it did not move to dismiss until two months after BSA noted the case for trial. It would have been much better optics if WT had moved to dismiss first. But that doesn’t matter under CR 41! The rule would apply just the same if, after almost five years of silence from BSA, WT moved for a dismissal and then (within ten days) BSA noted the trial before the hearing on the motion. I wonder if the SCOW’s decision would have come out differently if WT had moved first? Under the majority’s language, the outcome should be the same, since CR 41 would apply and the trial court would have no discretion. But really? If WT had moved for dismissal first, and BSA responded by merely noting a trial date, then the trial judge would have had no discretion to dismiss the case for lack of prosecution? That seems wrong.
The standard of review seems a bit off to me as well. The SCOW notes that the interpretation of a court rule is reviewed de novo. That’s fine. But here, the rule (as interpreted by previous SCOW cases) provides that its mandatory instructions do not apply if there are “unacceptable” practices by the plaintiff. Well who decides what is sufficiently unacceptable? That determination would usually be made by the trial court and then reviewed by the appellate courts, but under what standard? The SCOW doesn’t explain, but both the majority and the dissent implicitly treat it as a matter to be decided by the appellate court as a matter of law. It seems to me like the appropriate review for the existence of sufficient unacceptability would be abuse of discretion, with some strong guidance from the higher courts on how to exercise that discretion — sort of like the review of discretionary sanctions for discovery violations. Under that line of cases, I believe the appellate courts review sanctions for abuse of discretion, but there are fixed category rules for what is sufficient to warrant dismissal. Maybe I’m splitting hairs, but that sort of discretionary review didn’t seem to be what the SCOW did here; it seemed to really just start from scratch to determine whether BSA’s conduct was “unacceptable.” And again, both the majority and dissent seemed to agree on the level of review, despite coming to different conclusions. However, whether a party’s trial-related conduct can be considered “unacceptable” sounds like precisely the sort of decision that we generally give trial judges the discretion to determine.
One reason the SCOW started from scratch on the “unacceptability” issue might have been that the trial court’s dismissal was based on its view that CR 41 did not apply on remand. If that was the case (and the SCOW said it was) then maybe the trial court didn’t fully consider the totality of BSA’s conduct or make a clear full record of the relevant conduct that might have supported a finding of sufficient unacceptability. If the initial decision was based on an error of law (the failure to apply the rule after remand) then shouldn’t the Court have remanded the case to the trial court to make an initial determination and to create a record on the issue of unacceptability? I don’t quite understand why the SCOW would have just made that determination, as a matter of law, in the first instance based on what might have been an incomplete appellate record.
When it comes to dismissing cases for lack of prosecution, it just makes more sense to me for the trial court to have a good amount of discretion. The trial judge has seen the parties’ conduct, she knows how the case has been litigated, she knows how a trial would be affected by a delay, and she knows the opportunities the plaintiff had to get things moving. It just seems silly to me that the plaintiff has the power to rob the trial judge of all that discretion by doing nothing more than filing a little notice of trial in response to a motion to dismiss after doing absolutely nothing for almost five years. Oh well.