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The case of the disappearing plaintiff

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Why would a plaintiff (the party who files a suit) fail to show up for trial? How long should a court keep the suit alive, if the plaintiff doesn’t seem to care?

In a recent opinion, Springfield’s Southern District of the Missouri Court of Appeals affirmed the trial judge’s determination that it a plaintiff who failed to show up for trial could not have another chance to assert its rights three years later. The losers here, named Kissee, filed a suit against E-Z Pawn for the recovery of jewelry left there for cleaning.

When the Kissees failed to show up for the trial, the trial judge merely noted in the court records that they failed to show. Nearly a year later, the pawnshop’s attorney sent a cash settlement offer to the Kissees, but apparently that letter did not lead to a settlement.

Six months later, the court sent a notice to all parties that the case would be dismissed as of a certain date unless the parties took some kind of action. The Kissees asked the court to keep the case alive, and the court removed it from its list of cases to be dismissed, scheduling a review of the case with the attorneys on November 10, 2005. When the Kissees’ attorney didn’t appear on that date, the court dismissed the case “without prejudice,” which means that it could be refiled.

More than two years later, the Kissees filed motions with the court, asking that the case be reinstated. The court denied those motions, resulting in an appeal, with the Kissees claiming that the trial judge had abused the discretion that the court rules provide.

The court of appeals supported the judge, noting the several opportunities that the court’s procedures allowed the Kissees. After all the Kissees filed the suit in the first place; they should not have invoked the jurisdiction of the court and dragged in the defendants unless they intended to follow through.

The court system is full of cases that are not being moved along by plaintiffs. Sometimes, there is a good reason for a plaintiff letting a case languish: the parties are trying to work out a settlement, facts emerge that require investigation, the value of the subject of the litigation drops, the plaintiff gets behind on payments to the plaintiff’s attorney, etc. Judges, most of whom have practiced law, are tolerant of these factors.

Many of southern Missouri’s circuit courts are crowded, at great cost to all citizens. The credit card companies are filing thousands of suits against defaulting borrowers. Hospitals and doctors file collection suits against uninsured patients or for co-pays that are sometimes staggering. Broken families end up in court, time after time, for dissolution of marriages, fights over custody and visitation, or for changes in child support. The state chases tax evaders. Prosecutors pursue the unending stream of lawbreakers.

The trial judge is in the best position to determine when a plaintiff or defendant has had a fair chance to make its case. It’s good to see an appellate court back up the trial judge in such a case.

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About Harry Styron

I'm a lawyer who lives in Branson, Missouri, whose professional interests involve real estate, construction and local government.

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