Tag Archives: Failure to Prosecute

In Re: Lillian R. Malm v. Marion Brigitte Villegas, 2015CO4 (January 20, 2015)

“[D]elay in service… cannot be found reasonable simply because the plaintiff made diligent efforts to locate the defendant.” Opinion. Malm filed her personal injury complaint in 2005, one month before the 3-year time limitation ended. In 2013, Malm found Villegas in Germany, and the District Court reopened the case noting the lack of a rule stating a reasonable time for service in a foreign country. Villegas opposed, arguing that the failure to serve her sooner was an unreasonable delay amounting to a failure to prosecute. The Court held that a delay between filing and service of a complaint beyond the statute of limitations is reasonable only if it is the product of either wrongful conduct by the defendant or some formal impediment to service. Without any facts that Villegas deliberately avoided service, the District Court should have dismissed the case for failure to prosecute.

DISCLAIMER: The Author was an attorney on the brief for Petitioner Malm. Andy Helm assisted in the writing of this post.

https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2014/14SA13.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9640&courtid=2

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Filed under Interlocutory Review, Personal Injury, Proceedure, Torts

Tammy Hudak v. Medical Lien Management, Inc., 2013COA83 (May 23, 2013)

Move it or lose it. That is the general principle when it comes to litigation. But in this case, the trial court overlooked a fully-briefed pending motion and prematurely closed the case without proper notice to claimant. 13 months later, claimant filed a renewed motion. A new trial judge held the delay was too long, lacked mitigating circumstances, and was unexcused because it could have contacted or reminded the court about the pending motion. The judge dismissed the case. The court of appeals reversed, and though affirming the principles upon which the trial court relied — that a claimant has an affirmative duty to pursue pending motions and a duty to inquire about inaction — held the trial court abused its discretion because the claimant was not obligated to renew or remind the court about the pending motion, and had it done so, risked irritating the court. The case was reinstated.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2013/12CA1694-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8949&courtid=1

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Filed under Proceedure