`

Man must reinstate original complaints for lawsuits to proceed

March 14, 2013

The Indiana Court of Appeals held Thursday that a man with a propensity to sue over purchases made online may not file a new lawsuit in Marion County after a similar one was dismissed without prejudice.

Gersh Zavodnik filed 27 lawsuits against people living in five states and 10 countries from 2008 through 2010 in an attempt to “make his living by filing lawsuits … against individuals he alleges caused him damages by failing to complete Internet sales purchases,” according to the court opinion. Two of those defendants were Giselle Guzman and Brian Richards.

The 27 lawsuits were consolidated by Judge Timothy Oakes in Marion Superior Court; 24 of the lawsuits were dismissed without prejudice, including those against Guzman and Richards. About a year later, he filed new lawsuits against Guzman and Richards and added Steve Panayiotou as a co-defendant. The allegations in the new complaints were the same as those originally dismissed. Judge David Dreyer dismissed the lawsuits and denied motions to correct error.

In Gersh Zavodnik v. Brian Richards and Njgolfman.com a/k/a Savva's Golf Enterprises a/k/a ProGolfJerseyCity@yahoo.com and, Steve Panayiotov a/k/a Steve Panayiotou a/k/a Savva Panayiotou, 49A02-1209-CC-750, the Court of Appeals affirmed, citing Thacker v. Barlett, 785 N.E.2d 621 (Ind. Ct. App. 2003). That case was similar and dealt with a dismissal under Trial Rule 12(B)(6) for failing to state a cause of action.

“Much like Trial Rule 12(B), we conclude that when a trial court has involuntarily dismissed a case without prejudice pursuant to Trial Rule 41(E), subsection (F) of that rule ascribes to the dismissing trial court the discretion to consider whether a complaint should be reinstated,” Judge Michael Barnes wrote. “We also presume that the Indiana Supreme Court, in drafting Trial Rule 41, did not intend to place a nullity in the rule by adding subsection (F)’s explicit procedure for how to go about reinstatement of a complaint dismissed without prejudice. Zavodnik’s position, that such complaints can be re-filed in a different court without following the reinstatement procedure, would render that provision meaningless.

“By re-filing complaints before Judge Dreyer that were substantially similar, if not identical, to complaints that Judge Oakes had already dismissed, Zavodnik was improperly attempting to circumvent Judge Oakes’s authority and discretion to decide whether Zavodnik had good cause to reinstate his original complaint(s). Judge Dreyer apparently recognized this and acted properly in dismissing the re-filed complaints, which dismissal served the interests of fairness to litigants, judicial comity, and judicial efficiency.”

Zavodnik must obtain reinstatement of his original complaints before Oakes if he wants to pursue his legal action against the parties.

ADVERTISEMENT

Recent Articles by Jennifer Nelson