Baker Machinery, Inc., filed a complaint against Superior Canopy Corporation alleging Superior owed part of the purchase price for a piece of equipment Baker had sold to Superior. Superior later filed a separate lawsuit against Mega Manufacturing Corp. (Mega), the distributor of the machinery at issue, and Allsteel Corporation a/k/a Produits Ferro Cie Ltee a/k/a Ferro Products Co., LTD (Ferro), the equipment’s manufacturer. Both complaints were dismissed with prejudice pursuant to Indiana Trial Rule 41(E). Baker appeals the dismissals, presenting the following restated issues for review:
1. Did the trial court err in dismissing Baker’s complaint after Baker had asked the trial court to issue a scheduling order?
2. Did the trial court properly consider and apply the factors relevant to dismissal under T.R. 41(E)?
Conclusion (slip op. at 14): We conclude that the evidence supports the trial court’s findings and that the findings are legally sufficient to support the trial court’s T.R. 41(E) dismissal of Baker’s lawsuit. Judgment affirmed.
Key Analysis (slip op. at 8-10): The defendant must file his motion after the sixty-day period [of inactivity] has expired and before the plaintiff resumes prosecution . . . the T.R. 41(E) prompt that must precede the resumption of prosecution in order to authorize dismissal may take the form either of a motion to dismiss submitted by a defendant, or by an order issued by the trial court raising the possibility of dismissal for failure to prosecute . . . the T.R. 41(E) prompt was filed before Baker resumed prosecution. There is no procedural impediment to dismissal under T.R. 41(E).