Dwyer Instruments, Inc. (“Dwyer”) appeals a trial court order granting James Keller’s (“Keller”) motion to set aside an order of dismissal. On May 4, 2007, Keller filed a personal injury action against Dwyer seeking damages for injuries allegedly sustained while Keller was acting as a temporary employee at Dwyer’s place of business. Dwyer filed a motion to dismiss for failure to comply with discovery pursuant to Trial Rule 37(B) and for failure to prosecute pursuant to Trial Rule 41(E). The trial court summarily granted the motion on the same date and dismissed the case with prejudice. In response, Keller filed a motion to set aside the order of dismissal. The trial court held a hearing on the issue and granted Keller’s motion concluding that its Order to Dismiss with Prejudice was erroneously entered.
Conclusion (slip op. at 4): We cannot say that the trial court abused its discretion in setting aside its order to dismiss. Affirmed.
Key Analysis (slip op. at 4): Trial Rule 41(E) provides that the trial court “shall order a hearing for the purposes of dismissing” a case where there has been a failure to prosecute the case for a period of sixty days . . . Here, the trial court did not hold a hearing before it granted Dwyer’s motion to dismiss and granted the motion on the very day it was filed.
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