Hospital’s 41(E) motion not timely filed, rules COA

The Indiana Court of Appeals decided in a case of first impression that a hospital, which filed its Ind. Trial Rule 41(E) motion to dismiss on the same day the plaintiff resumed prosecution of the case, did not timely file its motion. 
Dr. William Babchuk was still under contract with Indiana University Health Tipton Hospital when the hospital terminated its contract with him to provide radiology services and suspended his privilege to practice there. The decision came after learning Bachuck allegedly had two staff members delete or destroy hospital records. 
Babchuk sued in state court in November 2012 alleging breach of contract. In August 2013, he filed a federal complaint against the hospital and sought to add the breach of contract claim to his federal case. On May 29, 2013, Babchuk filed with the state court a motion to stay or to set a scheduling conference. Also that day, the hospital filed its motion to dismiss the state court action for failure to prosecute. After learning the federal court denied Babchuk’s request to add the breach of contract claim, the trial court held a hearing on the motion to dismiss and dismissed the matter based on T.R. 41(E). 
80A04-1409-PL-447, Judge Edward Najam wrote that it is the defendant’s burden to timely file a T.R. 41(E) motion to dismiss and the motion must be filed before the plaintiff resumes prosecution. As such, the judges held the hospital’s motion to dismiss, which was not filed before Babchuk resumed prosecution, was not timely. 
“Our research reveals no Indiana precedent squarely addressing what constitutes diligent prosecution under Trial Rule 41(E). But a request for a scheduling conference indicates a party’s intent to move forward with litigation. And we hold that where, as here, a plaintiff requests a scheduling conference, even in the alternative to a stay, that is sufficient to constitute resumption of prosecution for purposes of Trial Rule 41(E),” Najam wrote. 
The case is remanded for further proceedings. 

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