Owen v. DWS

Owen v. DWS

IN THE UTAH COURT OF APPEALS
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Danny Robert Owen,

Plaintiff and Appellant,

v.

State of Utah, Department of Workforce Services; and Does 1 through 10,

Defendants and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20040098-CA

F I L E D
(July 29, 2004)

2004 UT App 262

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Third District, Salt Lake Department

The Honorable William B. Bohling

Attorneys: Nathan N. Jardine, Salt Lake City, for Appellant

Mark L. Shurtleff and Barry G. Lawrence, Salt Lake City, for Appellees

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Before Judges Bench, Davis, and Greenwood.

PER CURIAM:

Danny Owen appeals the dismissal of his complaint with prejudice under rule 41(b) of the Utah Rules of Civil Procedure. This case is before the court on the State of Utah's motion for summary disposition. Owen did not file a response.

Rule 41(b) allows dismissal of a case, upon a defendant's motion "for failure of the plaintiff to prosecute or to comply with these rules or any order of the court." The rule further provides that "[u]nless the court in its order for dismissal otherwise specifies, a dismissal . . . , other than a dismissal for lack of jurisdiction, or for improper venue or for lack of an indispensable party, operates as an adjudication on the merits." Utah R. Civ. P. 41(b).

The district court granted the State's motion to dismiss this case with prejudice for failure to prosecute by failing to comply with rule 26 of the Utah Rules of Civil Procedure, despite two written requests from the State to schedule a discovery conference.(1) Owen failed to respond to the motion to dismiss. The sole issue raised on appeal is: "Did the trial court act correctly when it dismissed the matter with prejudice?"

The language of rule 41(b) establishes a "presumption that the dismissal operates as an adjudication on the merits," with specific exceptions not applicable to the fact of this case. Donohue v. Smith, 2001 UT 46,¶8, 27 P.3d 552. "Therefore, under rule 41(b), a dismissal with prejudice was presumed, and the district court was not in error to so rule." Id. Although the district court retained the discretion under rule 41(b) to order the dismissal to be without prejudice, see id. at ¶8 n.3, Owen failed to respond to the motion to dismiss and did not raise that issue before the district court. Therefore, we do not consider any issue regarding abuse of that discretion on appeal. See

Williams v. Jeffs, 2002 UT App 232,¶9 n.3, 57 P.3d 32.

Accordingly, we affirm the district court's dismissal with prejudice.

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Russell W. Bench,

Associate Presiding Judge

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James Z. Davis, Judge

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Pamela T. Greenwood, Judge

1. The State also sought dismissal for failure to file the undertaking required by Utah Code section 63-30-19 (1997).