In a 2011 unpublished opinion, the Kentucky Court of Appeals reversed the Jefferson Circuit Court’s dismissal of a case for lack of prosecution by the plaintiff because of the failure of the defendants and the trial court to strictly comply with the Local Rules of the Jefferson Circuit Court. In Gaines v. Nichols, 2011 WL 6260365 (Ky. App.), the Court noted that, once they are approved by the Chief Justice of the Kentucky Supreme Court, the local rules of Kentucky circuit courts have the same binding effect as the Kentucky Rules of Civil Procedure.
In Gaines, the plaintiffs and their counsel failed to attend a pretrial conference set by the trial court after having failed to answer discovery requests from the defendants. The defendants then moved for dismissal for failure to prosecute. Rather than responding to the motion on the merits, the plaintiffs filed a motion to set for trial and also a motion to strike the motion to dismiss because it had been noticed for hearing at motion docket. The local rules provide that motions to dismiss should not be set for regular motion hour, that a party opposing a motion to dismiss has 20 days for response time and an opportunity to request oral argument, and that the motion/response/argument process is concluded by the filing of a notice of submission for final adjudication (AOC Form 280). The trial court nevertheless granted the motion to dismiss without waiting 20 days.
The Court of Appeals concluded that the plaintiffs should have been afforded the full 20 days to respond and then an opportunity to request oral argument in compliance with the local rules. The Court rejected the defendants’ argument that the plaintiffs’ filing of other motions (to set for trial and to strike the motion to dismiss) justified the trial court’s failure to wait 20 days before granting the motion. The Court also relied on the fact that a notice of submission had not been filed as the local rules required. Based on these circumstances, the Court, while noting that the issue was not whether the defendants were entitled to dismissal substantively, found that the case should not have been dismissed from a purely procedural standpoint.
This decision is in keeping with the general approach of Kentucky appellate courts in carefully scrutinizing dismissals for lack of prosecution, whether done on motion under CR 41.02 or pursuant to the “housekeeping” rule of CR 77.02. Also, Kentucky trial courts generally are required to afford parties the full response time before imposing “the death penalty” on a civil action by dismissing it. For instance, Kentucky law has long held that the 10 days’ notice for a motion for summary judgment provided for under the Civil Rules is “jurisdictional” and mandatory.
The Gaines decision was not designated for publication in the South Western Reporter. Unpublished decisions may qualify for citation under CR 76.28(4)(c).
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