Rule 41 in the Tank....

The Supreme Court of West Virginia reversed a dismissal for lack of prosecution under Rule 41 of the West Virgina Rules of Civil Procedure yesterday, holding in Caruso v. Pierce that cases cannot be dismissed unless the trial court has entered a scheduling order under Rule 16.

As a quick review, Rule 41, in part, allows dismissal of cases where there has been no activity for over a year. In WV, most circuits routinely entered orders in those cases, alerting plaintiff's counsel to show good cause for the lack of activity or risk dismissal. Once dismissed, the plaintiff has three terms of court - generally around 18 months - to seek reinstatement, which has been liberally granted.

This decision ends this practice and requires more management by circuit judges and effectively places the burden on defense counsel to ensure the entry of a case management order. Justices Davis and McHugh dissent, focusing on the language of the rule, and the ability of parties to proceed with discovery, indeed "prosecution" without a scheduling order.

Take a look at the opinion, Caruso v. Pierce, at the Court's excellent website:
http://www.state.wv.us/wvsca/docs/Spring09/34144.htm.