Indiana dismissal: sixty days of nothing and the court sets a hearing to end the case

Sixty days is a short time in litigation. In Indiana it is the point at which a case becomes a candidate for dismissal, and the rule directs the court to act rather than merely permitting it.

Sixty days, then a hearing

Trial Rule 41(E):

Whenever there has been a failure to comply with these rules or when no action has been taken in a civil case for a period of sixty [60] days, the court, on motion of a party or on its own motion shall order a hearing for the purpose of dismissing such case. The court shall enter an order of dismissal at plaintiff's costs if the plaintiff shall not show sufficient cause at or before such hearing.

Read the verbs. The court "shall order a hearing" — not may. And it "shall enter an order of dismissal" unless sufficient cause is shown at or before that hearing.

Two triggers, either of which is enough: a failure to comply with the rules, or sixty days of no action in the case. The second does not require anyone to have done anything wrong; inactivity alone suffices.

At the plaintiff's costs. The dismissal carries the costs with it.

The practical instruction for a plaintiff is simple: keep something on the docket. A status report, a discovery filing, a motion — any action of record restarts the count.

Dismissal can be withheld on conditions

The same subdivision offers a middle path:

Dismissal may be withheld or reinstatement of dismissal may be made subject to the condition that the plaintiff comply with these rules and diligently prosecute the action

So the answer to a Rule 41(E) hearing is not necessarily dismissal or no dismissal. A plaintiff who can explain the gap should come with a concrete plan — a proposed schedule, outstanding discovery, a trial date request — and ask the court to withhold dismissal on the condition that it is followed.

The same conditional structure applies to reinstatement, so a case already dismissed can come back on terms.

A dismissal that does not count against you

Trial Rule 41(A)(1) protects a plaintiff whose earlier attempt failed for reasons outside its control:

The provisions of this subdivision shall not apply if the plaintiff in such action could not effectuate service of process, or otherwise procure adjudication on the merits.

Note where this sits: it is an exception to the two-dismissal rule in Rule 41(A)(1), not to the sixty-day provision. A plaintiff whose earlier case ended because a defendant could not be served, or because an adjudication on the merits could not be obtained, does not have that dismissal counted against it.

Involuntary dismissal at trial

Trial Rule 41(B) covers the motion made after the plaintiff's case:

After the plaintiff or party with the burden of proof upon an issue, in an action tried by the court without a jury, has completed the presentation of his evidence thereon, the opposing party, 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 weight of the evidence and the law there has been shown no right to relief.

Note "upon the weight of the evidence" — in a bench trial the judge is weighing, not merely asking whether a case has been made out. And the moving party does not forfeit its own evidence by trying.

If the motion succeeds, findings may follow: "If the court renders judgment on the merits against the plaintiff or party with the burden of proof, the court, when requested at the time of the motion" shall make findings as the rule provides. Ask at the time of the motion — the request is time-bound.

What a dismissal means

Unless the order says otherwise, a dismissal under Rule 41(B) or Rule 41(E), and any dismissal not provided for in the rule, operates as an adjudication on the merits — so the consequence of a sixty-day dismissal is not automatically a fresh start. Check the order.

Refiling can be stopped until you pay for the last one

Trial Rule 41(D) attaches a condition to the second attempt:

If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the court may make such order for the payment of costs of the action previously dismissed as it may deem proper and may stay the proceedings in the action until the plaintiff has complied with the order.

A discretionary order for costs, and — more usefully for a defendant — the power to stay the new proceedings until it is complied with. The refiled case does not move while the earlier bill is outstanding.

Note "in any court": the earlier dismissal need not have been in Indiana.

Getting a dismissal set aside

Trial Rule 41(F) supplies the way back, and it distinguishes between the two kinds of dismissal:

For good cause shown and within a reasonable time the court may set aside a dismissal without prejudice. A dismissal with prejudice may be set aside by the court for the grounds and in accordance with the provisions of Rule 60(B).

Without prejudice: good cause, within a reasonable time. No fixed deadline, and no enumerated grounds — which is a lower bar than it might appear, but "a reasonable time" is doing real work and a plaintiff who waits will be met with it.

With prejudice: Rule 60(B), with its listed grounds and its own time limits. That is a harder road, and it is the road that follows a dismissal under Rule 41(E) if the plaintiff did not show sufficient cause at the hearing.

Read with the sixty-day provision above, the sequence is worth keeping in view: inactivity leads to a hearing, the hearing leads to dismissal at the plaintiff's costs absent sufficient cause, and undoing that dismissal is governed by which kind it was.

Findings only if somebody asks

Indiana's provision on involuntary dismissal at trial differs from its neighbors in two ways:

After the plaintiff or party with the burden of proof upon an issue, in an action tried by the court without a jury, has completed the presentation of his evidence thereon, the opposing party, 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 weight of the evidence and the law there has been shown no right to relief.

"The party with the burden of proof upon an issue." The motion is not reserved to defendants responding to plaintiffs. Whoever carries the burden on an issue is exposed once their evidence on it is in.

And "upon the weight of the evidence." The judge is weighing, not testing sufficiency — the same function as at the end of trial.

On findings, Indiana puts the initiative on the parties: "the court, when requested at the time of the motion by either party shall make findings if, and as required by Rule 52(A)." The request has to come at the time of the motion. Most states make findings automatic on a merits judgment; here, nobody asks and nobody gets them.

A short checklist

If you are the plaintiff:

1. Keep something on the docket. Sixty days of inactivity is the trigger.
2. Come to the hearing with a plan, not just an explanation.
3. Ask the court to withhold dismissal on conditions rather than to refuse it outright.
4. Check the two-dismissal exception if an earlier case ended because service or an adjudication could not be obtained.
5. Read the dismissal order. It may operate on the merits.
6. Ask for findings at the time of a Rule 41(B) motion, not afterwards.

If you are the defendant:

1. Move once sixty days have passed; the court must then set a hearing.
2. Ask for costs — the rule provides for dismissal at the plaintiff's costs.
3. Test the excuse. Failure to serve is an exclusion; ordinary delay is not.
4. Consider a Rule 41(B) motion at the close of the plaintiff's case in a bench trial, on the weight of the evidence.

Where these rules live

• Ind. T.R. 41 — Dismissal of actions
• Ind. T.R. 52 — Findings by the court
• Responding to an Indiana complaint
• Indiana motion to dismiss
• Indiana TROs and injunctions

This page explains what the rules say. It isn't legal advice, and what amounts to sufficient cause for sixty days of inactivity is developed in case law this site doesn't cover.