Motion to Dismiss For Failure to Prosecute in Wisconsin

Background

“It is well established that a court has both inherent and statutory power to dismiss an action in the interest of the orderly administration of justice.” (See Golden v. Black, No. 99-1719, at *1 (Wis. Ct. App. May 25, 2000).)

Specifically, “a circuit court has the inherent power to dismiss actions pending before it if they are not being prosecuted in a reasonably timely manner.” (See Schmidt v. Dragisic, Appeal No. 2016AP272, at *9 (Wis. Ct. App. July 25, 2017).)

“For failure of any claimant to prosecute or for failure of any party to comply with the statutes governing procedure in civil actions or to obey any order of the court, the court in which the action is pending may make such orders in regard to the failure as are just.” (See Monson v. Madison Family Institute (1991) 162 Wis. 2d 212, 215 n.1.)

"[T]he court in which the action is pending may make such orders in regard to the failure as are just, and among others the following: . . . 3. An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party; . . .” (See id.)

General Information for Complaints and Motions

“For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him.” (See Neylan v. Vorwald (1985) 124 Wis. 2d 85, 92 n.7.)

“After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief.” (See id.)

“The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence.” (See id.)

“If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a).” (See id.)

“Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits." (See id.)

Standard of Review and Burdens of Proof

“A circuit court's decision to dismiss an action is discretionary and will not be disturbed unless the aggrieved party establishes that the circuit court abused its discretion.” (See Johnson v. Allis Chalmers Corp., 162 Wis.2d 261, 273, 470 N.W.2d 859; Monson v. Madison Family Institute (1991) 162 Wis. 2d 212, 224.)

As such, “dismissal for failure to prosecute is a matter left to the circuit court's discretion.” (See Mains v. St. Mary's Hosp. of Superior (2001) 639 N.W.2d 223.)

“Dismissal for failure to prosecute is an abuse of discretion in two situations: (1) if there is no reasonable basis to support the circuit court's determination that the aggrieved party's conduct was egregious or (2) if the aggrieved party can establish a clear and justifiable excuse for the delay in prosecuting the action.” (See id.)

The Court’s Decisions

It is well settled that “whether the order of the trial judge is based on statute or on the inherent power of the court, the motion to dismiss for want of prosecution is addressed to the sound discretion of the trial court and will be affirmed unless it is clearly shown that there was an abuse of discretion.” (See Zeis v. Fruehauf Corp. (1972) 56 Wis. 2d 486, 489.)

It is also well settled that “Wisconsin Stat. subsection 805.03 authorizes a circuit court to dismiss an action if a claimant fails to prosecute his or her case or fails to obey a court order. A circuit court is also vested, independent of statute, with the inherent power to dismiss a case for failure to prosecute or to comply with court orders.” (See Potts v. Lirc (2002) 655 N.W.2d 546.)