Accordingly, the parties' motion [DE 14] is GRANTED and the claims against Defendant Trans Union are DISMISSED WITH PREJUDICE. Court Description: MEMORANDUM OPINION AND ORDER signed by Judge Claria Horn Boom on 3/29/21; granting in part and denying in part 26 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 26 Motion for More Definite Statement; denying 36 Motion to Dismiss; denying as moot 47 Motion to Amend/Correct cc: Counsel (DJT) However, no party has pointed to any specific place in the record to show whether any party actually engaged an accident reconstructionist immediately after the accident or had the opportunity to do so. The plaintiffs then appealed the dismissal to the Court of Appeals. This is done when the defendant believes a claim in the lawsuit is legally invalid, or there are legitimate grounds for throwing the case out of court. All sitting. Rather, to rule properly on a motion to dismiss for lack of prosecution, the trial court must assess all factors relevant to that particular case, which might include some or all factors listed in Ward and may include other factors.11. Pari-Mutuel Clerks Union of Kentucky, Local 541, SEIU, AFL-CIO v. Kentucky Jockey Club, 551 S.W.2d 801, 803 (Ky. 1977). Asking a higher court to review and change the decision or sentence of a trial court because the lower court made an error. A party to a lawsuit can get court costs and fees waived by filing a paper that shows they have no money to pay. The motion to dismiss must be filed with the court and served on the other party. So the relevant inquiry in determining whether a case should be dismissed with prejudice under CR 41.02 is whether the party has been diligently pursuing resolution of the case-not necessarily whether the party has recently been filing documents in the trial court record. When only one parent gets legal custody, its called sole custody. PROCEDURAL HISTORY On October 25, 2018, Edward Hirst filed a verified complaint in the United States District Court for the Western District of Garnishment. Improper venue. District Court. An order that tells one person to stop doing something requested by the party. Although the trial court's finding of spoliation of evidence is not made with much specificity, one possible specific evidentiary issue discussed at oral argument was changes to the highway since the accident. While such cases as Ward may have been helpful in identifying some of the relevant factors in determining whether dismissal for lack of prosecution is appropriate in a particular case under the totality of the circumstances, perhaps it is also helpful to consider the policies and purposes behind such dismissals in holistically deciding such cases, rather than simply reciting formulaic lists. This holding is consistent with a recent Court of Appeals case, in which the Court of Appeals affirmed a trial court order dismissing a case for lack of prosecution under CR 41.02. In the response, the plaintiffs reminded the trial court of the 2002 bankruptcy stay and of the fact that "discovery resumed" after the stay was allegedly lifted. Sometimes, the plaintiff or a prosecutor makes a motion to dismiss a case because it has been settled out of court. Often, in a case where the plaintiff has purportedly failed to prosecute, the trial court simply would not have a sufficient record to determine whether the claim had merit in the sense of the plaintiff's likelihood of success on the merits. x Affidavit. -2- Over two months later, Peyton . endstream endobj 24 0 obj <>stream Defendant. Given the multiple instances of delay and lack of evidence of the plaintiffs actively seeking to resolve their case, we cannot conclude that the trial court abused its discretion in granting the motion to dismiss for lack of prosecution. 0000030196 00000 n 0000059183 00000 n A court that hears civil cases involving family issues, such as divorce, custody, parental rights, child support and adoption. endstream endobj 21 0 obj <>stream So, in a typical case, the meritorious nature of a plaintiff's claim may be difficult to assess and of minimal value because even a meritorious case may be dismissed under CR 41.02 if the totality of the circumstances shows that the plaintiff is not actively prosecuting the case. Please try again. difficulty filling out these forms, then you may wish to consult with an 1. A motion to dismiss can be filed at any time. Done for, or at the request of, only one side in a case without prior notice to the other side. prohibited and may result in civil or criminal liability. Case. Posted by Michael Stevens | Jan 29, 2011 | Standards of Review | 0 |. In a lawsuit, the harm caused to the one who is injured. For the foregoing reasons, this Court affirms the decision of the Court of Appeals affirming the trial court's order dismissing for lack of prosecution. attorney. Rule 12.01 - When presented. (t)he defendant's assertion of his speedy trial right, then, is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right. After discussing some of the considerations listed in Ward, the Court of Appeals ultimately determined that the trial court did not abuse its discretion in dismissing the case under CR 41.02(1) for lack of prosecution. Notarize. Brian and Amy allegedly suffered serious injuries in the accident. 16. We took discretionary review to clarify when a motion to dismiss for lack of prosecution under CR 41.02 can properly be granted. Following further briefing, the trial court denied the motion to vacate, finding dismissal appropriate because of the general nature of the dilatory practice of this case and the lack of affirmative action by plaintiffs reflected by both the trial court record and plaintiffs' counsel's affidavit. The trial court apparently did not find the delay in supplying information on Brian's prior injuries to be adequately explained by local counsel's affidavit. Deadline for demand for jury trial is end-of-day Monday. Rule 15.03 - Relation back of amendments. The KAJC is collaborating with attorneys and Kentucky's civil legal aid programs to assist low-income individuals with non-criminal legal issues. On July 6, 2017, roughly three months after conducting oral argument on the 24 Am.Jur.2d Dismissal, Discontinuance and Nonsuit 63 (2009) (footnotes omitted). A pretrial Motion to Dismiss Criminal challenges the legality of the criminal complaint or indictment or the fairness of the trial. A statement claimed as true by a party that must be proved by or supported with evidence in the case. A sworn statement of income, expenses, property (called assets) and debts (called liabilities). 295, 132, 501, ABRAMSON, CUNNINGHAM, NOBLE, SCHRODER, and SCOTT, JJ., concur. 0000003585 00000 n 3. endstream endobj 1 0 obj <> endobj 3 0 obj <> endobj 4 0 obj <> endobj 5 0 obj <> endobj 6 0 obj <> endobj 7 0 obj <> endobj 8 0 obj <> endobj 9 0 obj <> endobj 10 0 obj <> endobj 11 0 obj <> endobj 12 0 obj <> endobj 13 0 obj <> endobj 14 0 obj <> endobj 15 0 obj <> endobj 16 0 obj <> endobj 17 0 obj <>stream We accepted discretionary review of this case to clarify the analysis a trial court must undertake when deciding motions to dismiss for lack of prosecution under Kentucky Rules of Civil Procedure (CR) 41.02(1). From: Akins v. The News Enterprise, COA Published Decision, 1/28/2011. (Emphasis added. Russell G. Vineyard, Note, Dismissal with Prejudice for Failure to Prosecute: Visiting the Sins of the Attorney Upon the Client, 22 Ga. L.Rev. Subpoena. 22. 2022 Kentucky Court of Justice. Although many attorneys casually refer to most documents filed in a lawsuit hUkK0+246OGV4h`&67:m}NNn p JW@ !MAt|@s0HBh(@)K7U43@$x4d!9_6MX"YMY8tmtm5i/re]UuX=;r"+{' |?0jExA& d0L} Under the Federal Rules of Civil Procedure, Rule 41 (a) [USCS Fed Rules Civ Proc R 41] a plaintiff may voluntarily dismiss the case. As for the sixth factor, lack of availability of alternative sanctions, the trial court noted that there were multiple instances of delay here, not just one act of delay as in Ward, so it did not view other sanctions as adequate. A Motion to Dismiss is often filed with the court at the earliest stages of the lawsuit, typically before either party has conducted their discovery. Rule 12.06 - Motion to strike. Civil. Usually seen when a homeowner falls behind on mortgage payments. 0000006787 00000 n In addressing the first factor listed in Ward, extent of the party's personal responsibility for delay, the trial court found the plaintiffs responsible for delay, based upon their failure to seek a trial date until the motion to dismiss had been filed and their delay in providing information about prior injuries. Involuntary Treatment (Alcohol and Drug Abuse) - Caseys Law, Mediation / Alternative Dispute Resolution, Protective Orders - Domestic Violence / Interpersonal Violence, Now available: Revised legal forms due to 2022 legislation. Here, the relatively few discovery requests made and the plaintiffs' pattern of delay in responding to these requests support the trial court's findings of dilatoriness on the part of plaintiffs. In their response, they alleged they had been cooperating with the Defendants and had not failed to answer discovery or respond to requests for the same. They stated their counsel had been diligently trying to secure requested information and argued no motion to compel had been filed for lack of cooperation; rather, the Motion to Compel filed concerned whether the defense medical exam would occur in Cincinnati or New York. 3. 0000006220 00000 n Often a condition of probation. We would also note that it is appropriate for the trial court to address whether a party, in addition to counsel, has acted willfully and in bad faith, particularly in cases of self-representation. x~x*PLett40009p3Jx iQ EqI&y,W0d7/AoQz4 |L@zBL@@ ` ,p Because the Court will consider matters outside the pleadings in ruling on the motion, the Court will treat the motion as a motion for summary judgment. Certain documents (such as complaints, answers, motions, memoranda) filed under court rules with the court by the parties in a civil or criminal case. 10/12/2012. stipulation of dismissal as a motion to dismiss under Rule 21. 2022 Kentucky Court of Justice. A motion to dismiss is a party's request to a court to dismiss a case because of settlement, voluntary withdrawal, procedural defect or claim is one for which the law provides a remedy. 29. Sample 1 Sample 2 Sample 3. Injunctions. H.Although Mandated Discussion of All Ward Factors Law of the Case for this Case, Future Cases to be Analyzed under Totality of the Circumstances. 842 0 obj <> endobj Earlier this week, Montana Rep. Zooey Zephyr was censured by the state legislature after being blocked from speaking since the prior week. But under the facts of this case, we do not think it was reversible error for the trial court to consider questionable liability of one defendant as one factor to consider or to infer possible lack of merit from inadequately explained delay. 1987). In family law, the right to make decisions about the child. All rights reserved. The next day, Dumphord filed two motions seeking, respectively, a 45-day extension of time to serve Geile and the appointment of the U.S. You can find contact information for all 120 Offices of Circuit Court Clerk by scrolling down to Find a Court/Circuit Court Clerk by County. They noted they provided authorizations to obtain health records and also stated, Defendants could seek to obtain this information through subpoena or inform counsel of their problem and discuss solutions. They also pointed to their efforts to obtain mediation and their attempts to resolve insurance issues in arguing that their lack of recently filed pleadings or discovery requests did not prove lack of prosecution as merely because another party notices the deposition does not mean there is a lack of prosecuting one's case if it is moving forward.. In contrast to this misunderstanding, we hold that the propriety of the trial court's ruling does not necessarily hinge on its discussing the six particular factors listed in Ward. Giving the circuit court clerk legal papers that become part of the case file. Contact us. 4. 5 dismiss. 0000021543 00000 n As for the second factor listed in Ward, whether plaintiffs were dilatory,25 the trial court noted their failure to initiate activity of record in the case and noted that all of their court filings after 2001 were merely responsive to the defendants' discovery requests, rather than affirmative, proactive filings. I. To cancel or rescind a court order. The notion that a defendant, aggrieved by the burden of a lawsuit, bears some measure of responsibility for mitigating his own misery is well known to the law. xref 0000024355 00000 n Sample 1 Sample 2 Sample 3. P. 12(d). 0000058939 00000 n Check your court papers to see if you have completed the signatures, have the proper notarization, and have the correct county name and case number. 1. The email address cannot be subscribed. Appellants cite Little v. Yeutter, 984 F.2d 160, 162 (6th Cir.1993) for the proposition that [a]bsent a showing of a clear record of delay or contumacious conduct, the order of dismissal is an abuse of discretion, such that the district court is limited to lesser sanctions designed to achieve compliance. We note that federal case law construing federal rules (even those similar to our state court rules) does not control how we construe our state court rules. However, the trial court did take note of telephone conferences, suggestion of mediation, discovery propounded by plaintiffs, and taking actions to deal with various issues. As the legislature considered a ban on . Legal custody to both parents is called joint or shared. When a trial court is presented with a Kentucky Rules of Civil Procedure (CR) 12.02 motion to dismiss, the court must take every well-pleaded allegation of the complaint as true and construe it in the light most favorable to the opposing party. Foreclosure. The person who filed the motion is called the movant or moving party. FindLaw.com Free, trusted legal information for consumers and legal professionals, SuperLawyers.com Directory of U.S. attorneys with the exclusive Super Lawyers rating, Abogado.com The #1 Spanish-language legal website for consumers, LawInfo.com Nationwide attorney directory and legal consumer resources. In Forma Pauperis. D.We Construe Precedent on CR 41.02 Dismissals for Lack of Prosecution as Requiring Consideration of All Relevant Factors, but Not as Requiring Discussion of Every Factor Listed in Caselaw, such as Ward. 7k#|ujzk` HRI As there does seem to be at least some evidence of specific prejudice, the finding of prejudice is not clearly erroneous and does not reflect an abuse of discretion. 0000030642 00000 n But the trial court did specifically note the absence of medical records requested through discovery and not obtained due to the length of time or inability to access them [,] which seems to be substantial evidence of specified prejudice. A change to an existing order or judgment. 22 - Kentucky Practice Series [Print & Westlaw] Sample motions and citations to support or oppose the following actions: motion to quash, motion to dismiss, motion to strike, motion for judgment on pleadings, summary judgment, and dismissal motions. 2004). In response, appellee moved to dismiss on grounds of double jeopardy. 0000003145 00000 n The court location appropriate for the case. motion to dismiss, and a motion to dismiss is not a responsive pleading. Motions to dismiss, for judgment on the pleadings, and for summary judgment shall not be noticed for motion hour but shall be filed with a memorandum of authority not exceeding twenty-five (25) pages in length, in type no smaller than 12-point. Ward was a medical negligence case in which the plaintiff had failed to comply with the trial court's time deadline for identifying its trial expert. %PDF-1.6 % A court decision. A person or legal entity that is named as a plaintiff or defendant on legal papers. And the trial court was free to reject the plaintiffs' explanation that they had already been planning to seek a trial date because the record shows that a motion to dismiss was actually filed first, and the trial court was not required to accept plaintiffs' assertions concerning their intent.23. 0WQ\P(A8t!PZioo-!] AYF&"@]UZ8$\c$6=|KLu6.NoECU`x.iV|I?ncO&&NL:GG# LQ We will refer to the individual members of the Jaroszewski family involved in this case by their first names in this opinion in order to prevent confusion. Rule 12.02 - How presented. Respond to inquiries about court procedures. An essential consideration that for a trial judge ruling on a defendant's motion under CR 41.02 is whether the defendant himself had undertaken any effort to move the case toward resolution before seeking dismissal with prejudice. Id. In lieu of an answer, Thompson Hine filed a motion to dismiss pursuant to Kentucky Rules of Civil Procedure (CR) 12.02, arguing the complaint was not timely filed and otherwise failed to set forth a cognizable claim for relief. Rule 12.07 - Consolidation of defenses in motion. An agreement reached between the parties to resolve the dispute. 0000046916 00000 n x+ | According to the plaintiffs' response, the discovery of Karen's possible additional liability insurance coverage from Alamo prompted their counsel to conduct more factual investigation and legal research into this matter-in addition to trying to comply with requests for Brian's medical information-while also continuing to pursue the possibility of mediation. x+ | In criminal cases, the person who is arrested and charged with a crime. Vacate. 0000059321 00000 n While we do not encourage trial courts to assess the merits of a claim in ruling on a motion to dismiss for want of prosecution on poorly developed records, we do not think the trial court here abused its discretion in considering, among other relevant factors, the fact of questionable liability of one defendant. The proper use and handling of these legal forms is important. Counsel used much of the period to develop this investigation on the coverage that might be available, as the carrier involved for Karen Jaroszewski has minimal policy limits. DISMISS WITHOUT PREJUDICE To dismiss a case with the ability for the case to be refiled or brought; WANT OF PROSECUTION A motion made by a party for a judge to dismiss a lawsuit alleging that; DIRECTED VERDICT When a court directs that a verdict must occur based upon essential facts presented or; INSUFFICIENT EVIDENCE When there is not enough . Exhibit. endstream endobj 27 0 obj <>stream As such, [t]he court should not grant the motion unless it appears the pleading party would not be entitled to relief under any set of facts which could be proved in support of his claim. PariMutuel Clerks Union of Kentucky, Local 541, SEIU, AFLCIO v. Kentucky Jockey Club, 551 S.W.2d 801, 803 (Ky. 1977). On remand, the defendants each filed renewed motions to dismiss for lack of prosecution; and the plaintiffs filed a response, all addressing each of the factors listed in Ward. Marshals Service to complete service. A defendants written response to the plaintiffs initial court filing (the complaint or petition) that is filed with the court. Give you an opinion about what will happen if you bring your case to court. Defendants' motion was styled as a "motion to dismiss/motion for summary judgment." DN 72. However, we again emphasize that the propriety of an order dismissing a case under CR 41.02(1) for lack of prosecution depends upon whether the trial court abused its discretion under all relevant facts and circumstances, not on whether the trial court recited the six factors listed in Ward. Send to me at mike@kycourtreport.com. In any event, even though there perhaps was not contumacious conduct here, there is evidence to support a finding of a clear record of delay; and, thus, we cannot say the trial court erred in granting dismissal rather than employing alternative sanctions. Designed by Elegant Themes | Powered by WordPress, Std of Review: Motion to Dismiss for failure to state a claim CR 12.02(f), Civil Procedure Protections for incarcerated defendants served in civil action addressed. Direct Examination. A formal request to the court in a case. [Record Nos. 12(b)(6)), rather than CR 41.02 (failure to prosecute). Ward, 809 S.W.2d at 719, citing Scarborough, 747 F.2d at 875-78. The record reflects that during the 2004 calendar year, Flege filed notice of and took the depositions of Karen and Brian and propounded a second set of interrogatories and a request for production of documents to Brian. The rule m Kentucky IS stated m the Civil Code, Section 371, as follows: "An action, or any cause of action, may be dismissed . The KAJC is collaborating with attorneys and Kentuckys civil legal aid programs to assist low-income individuals with non-criminal legal issues. They claimed that any delay in obtaining medical records was unintentional and, apparently, due to health care providers' lack of cooperation. The court of limited jurisdiction that handles juvenile matters, city and county ordinances, misdemeanors, violations, traffic offenses, probate of wills, arraignments, felony probable cause hearings, civil cases involving $5,000 or less, voluntary and involuntary mental commitments and cases relating to domestic violence and abuse. Let you talk to the judge outside of court. Motion to Dismiss : Thursday, September 5, 2019: Ramos et al v. Nielsen et al: Northern District of California : Civil Rights : Motion for Preliminary Injunctive Relief, Motion to Dismiss : Tuesday, September 25, 2018: State of California v. Ross et al: Northern District of California . An oral motion may be made during a hearing or trial, but motions are usually in writing and filed with the Office of Circuit Court Clerk. Looking for some images inside the Fayette Courthouse built in 1898. DN 105, at PageID # 999; see Fed. Provide official court forms and instructions. 0000058531 00000 n Admittedly, we have some doubts concerning the trial court's analysis of this particular factor; and we cannot wholeheartedly accept authority encouraging the trial court to consider the merits when ruling on a motion to dismiss for lack of prosecution. Paternity. 0000005641 00000 n In support of this Motion, the Defendant states as follows: There is no statutory authority for the Commonwealth's exercise of criminal jurisdiction over the Defendant. Order. In other cases, the Court of Appeals has similarly reversed dismissals where the trial court's order does not reflect that it considered all relevant factors, such as those factors listed in Ward or Scarborough, but simply focused on a single dilatory act or a period of delay.18 This was consistent with our established precedent, which states that [e]ach case must be considered in the light of the particular circumstances involved and length of time is not alone the test of diligence.19 However, to the extent that other cases have held or suggested that all factors listed in Ward must always be fully discussed in all orders dismissing cases for lack of prosecution under CR 41.02, those cases are overruled.20. In fact, we believe prosecution-pursuing the case diligently until completion-involves, not only preparing one's own case, but also reasonably cooperating with the opponent's active attempts to prepare its case, such as responding timely to discovery requests. Can also mean disrupting court (being loud or disrespectful). Despite no written notation in the record that the stay had been lifted, Karen filed a notice to take Flege's deposition several months later in November 2002. KY. Trial is (tentatively) set November 19, 2018. 0000072117 00000 n Nonetheless, it is clear that the trial court found this delay in providing information to show willful, bad faith apparently by one or more of the plaintiffs' attorneys; and this finding of bad faith is not clearly erroneous nor does it reflect an abuse of discretion. Counsel has worked on the file throughout this period; however, it has been work that would not be transparent to the other parties. Circuit court clerks are happy to help you if they can, but they are strictly prohibited from providing legal advice. 27. 32. 2022LPC-00042 - Motion to table complaint pending a reinstatement of respondent's license. Thank you. A legal paper that is used to start a civil case, get jurisdiction over a party and inform the defendant of the lawsuit. The rules of evidence are relaxed and people often do not have an attorney. It found prejudice in lack of availability of witnesses and lack of recollection of the accident by any witnesses not yet called by deposition, although, apparently, at least some fact witnesses have already been deposed; and the trial court does not specifically identify any witnesses as having become unavailable. VENTERS, J., concurs by separate opinion. A statement opposing specific testimony or admission of evidence for a legal reason. Answer. Stated another way,the court must ask if the facts alleged in the complaint can be proved, would the plaintiff be entitled to relief? Before addressing when a trial court may properly grant a motion to dismiss for lack of prosecution, we must necessarily consider what prosecution of a civil action means. It usually contains facts and the laws (cases, statutes, regulations, etc.) 23. Stating that the trial court must take care in analyzing the circumstances and must justify the extreme action of depriving the parties of their trial, the Court of Appeals cited with approval the federal (Third Circuit) case of Scarborough v. Eubanks15 and suggested it would be well for our trial courts to consider the Scarborough case and the factors listed in Scarborough: 1)the extent of the party's personal responsibility; 3)whether the attorney's conduct was willful and in bad faith; While suggesting that it would be well for trial courts to analyze these factors in determining whether to grant CR 41.02 motions to dismiss for lack of prosecution, the Court of Appeals in Ward never stated that trial courts must analyze each individual factor listed in Scarborough. A court order to collect money or property. Pari-Mutuel Clerks' Union of Kentucky, Local 541, SEIU, AFL-CIO v. Kentucky Jockey Club, 551 S.W.2d 801, 803 (Ky. 1977). 7. individuals to assist them in their official capacities or their pursuit of 0000009460 00000 n Search Within. Northern Kentucky. Some legal forms can be completed online through guided interviews. While such a fact must certainly be considered in determining whether to dismiss a case for lack of prosecution, it is not the only fact to be examined.); Stapleton v. Shower, 251 S.W.3d 341, 343-44 (Ky.App.2008) (vacating dismissal for lack of prosecution as [i]n the case now before this Court, there is absolutely no reference to any of the Ward factors. We further note that at the time of the accident, Brian and Amy had not yet married, so her name was then Amy Page. 0000001587 00000 n Thus, pursuing mediation (at least where all parties are agreeable to trying mediation) could be one form of prosecuting one's case, even though the steps involved in actively pursuing mediation would not necessarily be reflected in the official court record. hb```b``e`c`/ad@ A;&V=Q``. The trial court also properly considered delay in responding to requests for information concerning prior injuries as a relevant factor to consider and indicative of personal responsibility. @D9!f[k{a~AE`9xXKKfPW*%X$_lt]yPzOyLEQ|Mam*- @D9!f7[k{a~AE`f It is also the money a party claims or receives as compensation for loss or injury. 0000005753 00000 n Each piece of evidence is an exhibit. Failure to comply may be punished as contempt of court. Designed by Elegant Themes | Powered by WordPress, Oct. 5, 2012 Court of Appeals Minutes Re cases on insurance policy interpretation, medical negligence failure to diagnose & third party beneficiary analysis in insurance policy. The time frames differ by type of case and by state. Ward, 809 S.W.2d at 719 (In ruling on a motion for involuntary dismissal, the trial court must take care in analyzing the circumstances and must justify the extreme action of depriving the parties of their trial.). The official written record of everything that was said at a court proceeding, hearing or deposition. Sometimes, the defendant files a motion to dismiss claiming that the plaintiff or prosecutor has committed some . When a motion to dismiss is made, trial courts cannot grant the motion unless it appears the pleading party would not be entitled to relief under any set of facts which could be proved in support of his claim. Restitution. %%EOF Generally, it is entirely proper for a trial court to consider that a plaintiff has only been acting reactively and has shown no inclination to take affirmative steps to advance resolution of the case for an unreasonable period of time as a relevant factor indicating that the plaintiff has not been actively prosecuting the case. Custodial Parent. Legal Aid. At the time of the collision, Brian Jaroszewski and Amy Page-Jaroszewski were traveling with Karen1 in a rented van from New York through northern Kentucky. A motion from the state urging the judge to reject the defense motion to dismiss includes a memo from the Ohio Bureau . The judge will then review each side's motion, and give the court's decision at a predetermined hearing date. As such, it is virtually impossible for this court to determine whether the dismissal was based solely on a single dilatory act or whether the trial court made its determination after considering the relevant factors set forth in Ward.). Our holdings today apply only to resolution of motions to dismiss for lack of prosecution under CR 41.02(1), not to determining the propriety of CR 77.02(2) dismissals, which differ from CR 41.02(1) dismissals in many respects, such as CR 77.02(2) dismissals being made without prejudice; by contrast, those under CR 41.02(1) are made with prejudice.8.
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