A court order directing a person not to do something, such as contact another person. Evidence. The criminal law counterpart of a civil defendant's CR 41.02 motion is a criminal defendant's motion to dismiss for lack of a speedy trial. We do recognize here though that under the facts of this case, clearly, someone would be presumably liable to the plaintiffs, who were Karen's passengers at the time of the interstate collision. Notice shall be given to each attorney of record of every case in which no pretrial step has been taken within the last year, that the case will be dismissed in thirty days for want of prosecution except for good cause shown. Rule 12.08 - Waiver or preservation of certain defenses. x+ | 0000066320 00000 n Generally, it appears that additional factors considered by the trial court were appropriate and relevant. MOTION TO DISMISS Comes the Plaintiff/Respondent, Commonwealth of Kentucky ex rel. Plaintiff respectfully requests that the Court deny the Motion to Dismiss and set this case for trial and/or mediation. Rule 12.02 - How presented. In criminal matters, most defendants have a right to an attorney and a public advocate or public defender is appointed for those who cannot afford an attorney. 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). In October of 2004[,] Counsel for the Plaintiff sent a letter in response to Charles Flege's inquiry of mediation, providing possible dates for mediation. Legally forcing a tenant out of rented property. After filing the motion to set the case for trial, the plaintiffs also filed a response to Karen's motion to dismiss. In determining whether the trial court abused its discretion in dismissing a case under CR 41.02, appellate courts must be able to assess whether a trial court considered all relevant facts and circumstances. R. Civ. Weather. Give general information about where to find court procedures, deadlines, rules and practices. A request to change a prior order is a motion to modify. It requires some reason for the change, such as when a spouse paying child support asks to modify the amount paid because of a change in circumstances (such as income) since the original order was made. 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. Judgment. 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. (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. A person who testifies to what he or she saw, heard or did.. DN 105, at PageID # 999; see Fed. Plaintiffs' Lack of Violation of Court Orders and Insurance Coverage Issues are Relevant Considerations But Did Not Mandate Denial of Motion to Dismiss for Lack of Prosecution. 2. In July 2003, Flege filed a notice to take the deposition of Michael Smith, a witness to the accident. The court must be able to exercise authority over the people involved and over the type of case. The email address cannot be subscribed. endstream endobj 168 0 obj <>stream The statement of the Court of Appeals that one fails to make a record upon peril of having a case dismissed for lack of prosecution is certainly applicable in terms of administrative dismissals under CR 77.02. 26. They are usually filed by defendants early on in the lawsuit, before they have filed an answer. Black's Law Dictionary (8th ed.2004) defines dilatory as [t]ending to cause delay .. VENTERS, J., concurs by separate opinion. stipulation of dismissal as a motion to dismiss under Rule 21. 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. Interrogatory. PDF Commonwealth of Kentucky Court of Appeals - Justia Law Learn more about FindLaws newsletters, including our terms of use and privacy policy. Std of Review: Motion to Dismiss for failure to state a claim CR 12.02 A court order to collect money or property. 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.