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SCHULTZ V. STAT

Cite as 32 Neb. App. 59

Gregg Schultz, appellant, 

v. State of Nebraska and 

Karina Adame, appellees.

___ N.W.2d ___

Filed June 20, 2023. No. A-22-387.

1. Courts: Dismissal and Nonsuit: Appeal and Error. The exercise of 

the power to dismiss a matter for lack of prosecution rests in the sound 

discretion of the trial court, whose ruling will not be disturbed on appeal 

in the absence of a showing of an abuse of discretion.

2. Judgments: Appeal and Error. An abuse of discretion occurs when a 

trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, 

and evidence.

3. Courts: Dismissal and Nonsuit. A district court has the inherent power 

to dismiss a case without prejudice for failure to prosecute.

4. Courts: Pretrial Procedure: Time. District courts must be given wide 

discretion to ensure the timely disposition of cases is reached in a manner consistent with fairness to all parties.

5. Actions: Dismissal and Nonsuit: Rules of the Supreme Court. In the 

absence of a showing of good cause, a litigant’s failure to prosecute 

a civil action, resulting in noncompliance with the Nebraska Supreme 

Court’s progression standards for civil actions in the district courts, is a 

basis to dismiss an action for failure to prosecute.

6. Actions: Parties. The plaintiff bears the responsibility to prosecute a 

case with reasonable diligence.

7. Courts: Dismissal and Nonsuit: Good Cause. There are four factors to 

assist in determining whether good cause exists to avoid dismissal of a 

case for lack of prosecution. They include whether a new suit would be 

barred by the statute of limitations, the length of delay, excuses for that 

delay, and if there were previous dismissals for lack of prosecution that 

have been entered and rescinded.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

06/20/2023 09:06 AM CDT
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Cite as 32 Neb. App. 59

Appeal from the District Court for Hall County: Patrick M. 

Lee, Judge. Reversed and remanded for further proceedings.

Gregory R. Coffey, of Friedman Law Offices, L.L.C., for 

appellant.

Douglas J. Peterson, Attorney General, and Phoebe L. 

Gydesen for appellees.

Riedmann, Bishop, and Arterburn, Judges.

Riedmann, Judge.

INTRODUCTION

Gregg Schultz sued the State of Nebraska and its employee, 

Karina Adame, for damages he allegedly sustained in a motor 

vehicle accident with Adame while she was acting in the scope 

of her employment. Eighteen months after the action was 

filed, the Hall County District Court dismissed Schultz’ case 

for failure to prosecute. Because the district court abused its 

discretion in failing to consider the requisite factors in determining whether good cause existed not to dismiss the case, 

we reverse the order of dismissal and remand the cause for 

further proceedings.

BACKGROUND

On August 9, 2018, Schultz and Adame were involved in a 

motor vehicle accident. Pursuant to the State Tort Claims Act, 

Schultz timely filed a claim with the State and later withdrew 

it on August 7, 2020, after the State failed to act upon it. The 

same day, Schultz filed suit against Adame and the State (hereinafter collectively the State), claiming Adame was negligent 

and her negligence was the proximate cause of damages sustained by him. After the State filed its answer on September 

14, no further action was taken, and on March 15, 2022, the 

district court issued an order to show cause why the case 

should not be dismissed for lack of prosecution. The hearing 

was scheduled for April 21.
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SCHULTZ V. STAT

Cite as 32 Neb. App. 59

At the show cause hearing, Schultz’ counsel advised the district court that the parties had agreed to a progression deadline 

and were ready to proceed with the case. Upon questioning 

from the court, Schultz stated that discovery requests were 

drafted and typically would be sent out after the complaint. 

The State responded, however, that it had not received any 

requests, nor had it sent any requests to Schultz. It stated that 

it anticipated sending discovery requests within the next week 

or two. When Schultz’ attorney was asked by the court if he 

had taken any action to prosecute the case, he responded “Not 

much, Your Honor.” He offered to consent to a more expedited 

schedule if the court preferred.

The district court noted its concern that the case was filed 

18 months prior to the hearing, yet there had been no attempt 

to prosecute the case. It then found that Schultz had failed to 

show good cause why the matter should not be dismissed but 

stated that Schultz could refile. Schultz interjected that the 

statute of limitations precluded him from refiling and that since 

the parties stipulated to a progression schedule, he requested 

the court to reconsider. The State affirmed that Schultz’ representations as to his conversations with the State and its 

agreement to move forward were accurate. The district court 

responded that the issue was not whether there was an agreeable progression schedule, but that Schultz had not yet taken 

any action in prosecuting his case. It conceded that it had not 

looked at the statute of limitations issue, but because Schultz 

had not shown good cause, it dismissed the matter.

On April 28, 2022, Schultz filed a motion to reconsider 

or reinstate the case. At the hearing on the motion, Schultz’ 

counsel offered his affidavit setting forth the efforts he made 

with the State’s counsel following receipt of the order to show 

cause. Attached to it were two emails that predated the show 

cause hearing. One email was from the State’s counsel to the 

court’s bailiff, advising that the parties agreed that the case 

should not be dismissed for lack of prosecution and inquiring whether a hearing would still be necessary. The other 
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SCHULTZ V. STAT

Cite as 32 Neb. App. 59

email was between the parties and laid out their agreed-upon 

proposed progression schedule. Schultz’ counsel also offered 

an accelerated proposed scheduling order in which the case 

could be set for trial in April 2023.

Schultz argued that the district court should reconsider its 

order, because the district court’s inquiry is not limited to the 

amount of work completed but should include the parties’ 

plan moving forward. He explained that the parties had agreed 

on a progression schedule and had plans to get the case back 

on track. Schultz also argued that, alternatively, the district 

court should reinstate the case because case law requires 

the district court to analyze various factors that ultimately 

weighed in his favor.

The State confirmed that it was not taking a position on 

the motion to reconsider or reinstate, but it would agree to the 

proposed progression schedule. It expressed its opinion that 

the case was “relatively simple” “in terms of the amount of 

discovery” that needed to be done. The district court took the 

matter under advisement.

Prior to the district court’s ruling on the motion to reconsider or reinstate, Schultz filed two pleadings: a stipulation to 

reopen the record and an affidavit from Schultz’ counsel. The 

district court denied Schultz’ request to reopen the record and 

did not consider any items offered beyond those offered at the 

hearing. It concluded that at the show cause hearing, Schultz 

did not show any cause, much less good cause, for why the 

case should not be dismissed for lack of prosecution. It then 

declined to reconsider its previous determination to dismiss the 

case and denied Schultz’ motion to reconsider and reinstate. 

Schultz appeals.

ASSIGNMENTS OF ERROR

Schultz assigns the district court abused its discretion by 

(1) dismissing Schultz’ action for failure to prosecute and (2) 

denying Schultz’ motion to reconsider or reinstate.
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Cite as 32 Neb. App. 59

STANDARD OF REVIEW

[1] The exercise of the power to dismiss a matter for lack 

of prosecution rests in the sound discretion of the trial court, 

whose ruling will not be disturbed on appeal in the absence of 

a showing of an abuse of discretion. Marcuzzo v. Bank of the 

West, 290 Neb. 809, 862 N.W.2d 281 (2015).

[2] An abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or unreasonable 

or if its action is clearly against justice or conscience, reason, 

and evidence. Buttercase v. Davis, 313 Neb. 1, 982 N.W.2d 

240 (2022), modified on denial of rehearing 313 Neb. 587, 985 

N.W.2d 588.

ANALYSIS

Dismissal Following Show 

Cause Hearing.

Schultz contends the district court abused its discretion by 

dismissing his action for failure to prosecute. He argues the 

district court failed to analyze all the factors in determining 

whether good cause was shown why the case should not be 

dismissed. Because we agree that the district court failed to 

consider the requisite factors, we find the district court abused 

its discretion when it dismissed Schultz’ case.

[3,4] A district court has the inherent power to dismiss a 

case without prejudice for failure to prosecute. See Talkington 

v. Womens Servs., 256 Neb. 2, 588 N.W.2d 790 (1999). The 

power to invoke this sanction is necessary in order to prevent undue delays in the disposition of pending cases and 

to avoid congestion in the trial courts. Schaeffer v. Hunter, 

200 Neb. 221, 263 N.W.2d 102 (1978). The district court 

also has the discretionary power to dismiss a case without prejudice for want of prosecution under Neb. Rev. Stat. 

§ 25-1149 (Cum. Supp. 2022). District courts must be given 

wide discretion to ensure the timely disposition of cases is 

reached in a manner consistent with fairness to all parties. See 

Talkington v. Womens Servs., supra. However, this discretion 
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Cite as 32 Neb. App. 59

must be exercised reasonably and not arbitrarily. See Beliveau 

v. Goodrich, 185 Neb. 98, 173 N.W.2d 877 (1970).

[5] The Nebraska Supreme Court’s case progression standards for a civil case’s disposition recommend 18 months. See 

Neb. Ct. R. § 6-101(A) (rev. 2013). Our research uncovers no 

examples in case law of applying this standard as a per se rule, 

which means that a case can exceed 18 months under certain 

circumstances. However, in the absence of a showing of good 

cause, a litigant’s failure to prosecute a civil action, resulting in noncompliance with the Supreme Court’s progression 

standards for civil actions in the district courts, is a basis to 

dismiss an action for failure to prosecute. Marcuzzo v. Bank 

of the West, supra. Therefore, a case can be dismissed for 

surpassing the 18-month progression standard if good cause is 

not shown.

[6,7] The plaintiff bears the responsibility to prosecute a 

case with reasonable diligence. Id. Each case must be looked 

at with regard to its own peculiar procedural history and the 

situation at the time of dismissal. Talkington v. Womens Servs., 

supra. The meaning of good cause must be determined in light 

of all the surrounding circumstances. DeVries v. Rix, 203 Neb. 

392, 279 N.W.2d 89 (1979). The Supreme Court has provided 

four factors to assist in determining whether good cause exists 

to avoid dismissal for lack of prosecution. Whether a new suit 

would be barred by the statute of limitations is an important 

consideration, but it cannot on its own establish an abuse of 

discretion in dismissing a case. See Schaeffer v. Hunter, supra. 

Other relevant considerations are the length of delay, excuses 

for that delay, and if there were previous dismissals for lack 

of prosecution that have been entered and rescinded. Id. Our 

research also indicates that the public’s interest in expeditious 

resolution of the litigation, the court’s need to manage its 

docket, the public policy favoring disposition of cases on their 

merits, and the availability of less drastic sanctions are relevant 

considerations. See 24 Am. Jur. 2d Dismissal, Discontinuance, 

and Nonsuit § 59 (2018).
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Cite as 32 Neb. App. 59

Here, the district court’s analysis was limited to what 

Schultz had done to prosecute the case before the show cause 

order was issued. In other words, its focus was solely on the 

reason for the delay, and it determined that Schultz failed 

to take any action to prosecute the case. It did not consider 

the remaining factors that we consider in our determination of whether dismissal of the action constituted an abuse 

of discretion.

At the hearing on the order to show cause, Schultz advised 

the court that he would be precluded from refiling the case 

based upon the statute of limitations. The district court 

acknowledged that the statute of limitations was a potential issue but admitted that it had not looked into the issue. 

Regardless, it concluded that Schultz “has not shown good 

cause as to why this matter should not be dismissed.” The 

impact of the statute of limitations is an “important consideration” as to whether good cause was shown, yet the district 

court did not consider it. See Schaeffer v. Hunter, 200 Neb. 

221, 224, 263 N.W.2d 102, 104 (1978). Our review of the 

record indicates that the accident occurred on August 9, 2018, 

and Schultz withdrew his political subdivision tort claim on 

August 7, 2020. Pursuant to Neb. Rev. Stat. § 81-8,227(1) 

(Reissue 2016), Schultz had 6 months from August 7 (until 

February 7, 2021) to file suit. Therefore, when the court dismissed the case on April 21, 2022, the statute of limitations 

had run.

Regarding the length of the delay, the court commented that 

the case had been pending for 18 months. We are cognizant 

that the progression standards for district courts reflect that 

98 percent of civil cases should be completed in 18 months. 

See § 6-101(A). But we also recognize that the progression 

standards recommend that the trial judge implement certain 

processes to ensure compliance with this standard, including 

using early progression orders. However, it does not appear as 

though any progression order was entered in this case prior to 

its dismissal.
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Cite as 32 Neb. App. 59

Furthermore, although we do not condone the lack of case 

activity, our research reveals that 18 months is not an inordinate amount of time for a case to remain on a court’s docket. 

See, e.g., Schaeffer v. Hunter, supra (case reinstated twice over 

4-year period). See, also, Jarrett v. Eichler, 244 Neb. 310, 506 

N.W.2d 682 (1993) (case allowed to proceed after three previous dismissals and reinstatements despite its 2-year pendency); 

Billups v. Jade, Inc., 240 Neb. 494, 482 N.W.2d 269 (1992) 

(case on dismissal docket twice over 3-year period); A. Hirsh, 

Inc. v. National Hair Co., 210 Neb. 397, 315 N.W.2d 236 

(1982) (case on dismissal docket twice over 8-year period),

disapproved on other grounds, Fidler v. Life Care Centers 

of America, 301 Neb. 724, 919 N.W.2d 903 (2018). And our 

research reveals only one instance where the Supreme Court 

affirmed a district court’s dismissal without the case being 

reinstated or removed from the dismissal docket at least once 

before. See Roemer v. Maly, 248 Neb. 741, 539 N.W.2d 40 

(1995) (affirming dismissal from appeal brought after court 

term had already expired).

As to the third factor, and the basis upon which the court 

dismissed the case, Schultz admitted that “[n]ot much” had 

been done by him to move the case forward. But after receipt 

of the order to show cause, Schultz worked with the State’s 

counsel to devise a progression order and offered to accelerate 

that plan at the show cause hearing, which the State provided 

was an accurate representation of their conversations. Although 

“[n]ot much” had been done, evincing the absence of an 

excuse for the delay, both counsels were prepared to move the 

case forward.

The fourth factor the court should have considered was 

whether there had been previous dismissals and reinstatements. 

As stated above, no prior progression order was entered. The 

Rules of Dist. Ct. of Ninth Jud. Dist. 9-11(C) (rev. 2010) 

authorize, but do not require, the court to notify parties regarding the length of time a case has been pending. It states:
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Cite as 32 Neb. App. 59

When directed by the court, the clerk shall prepare a list 

of pending civil cases in which no action has been taken 

for 6 months prior thereto. An order shall then be entered 

requiring that cause be shown, within 30 days from entry 

of order, as to why said case should not be dismissed for 

lack of prosecution. Notice of said order shall be sent to 

all attorneys of record and pro se parties. If good cause is 

not shown, such cases shall be dismissed.

It does not appear from our record that any notice was sent 

prior to the March 15, 2022, show cause order. Therefore, there 

were no prior dismissals or reinstatements of Schultz’ case.

Because the court did not analyze the required factors, it is 

difficult to weigh the court’s need to manage its docket and the 

expeditious resolution of cases with the public policy favoring disposing cases on their merits. See Carrel v. Serco Inc., 

291 Neb. 61, 864 N.W.2d 236 (2015) (recognizing that upon 

motion to vacate default judgment, law favors full opportunity to litigate issues). Implying a preference for addressing a 

case on the merits, the Supreme Court has stated that a much 

stronger showing is required to substantiate an abuse of discretion when an order dismissing a case is vacated than when it is 

not. See Talkington v. Womens Servs., 256 Neb. 2, 588 N.W.2d 

790 (1999).

Both parties appeared at the hearing prepared to continue 

to trial, evincing an agreement that the case should be heard 

on its merits. Furthermore, there were no alternate sanctions 

discussed by the district court, but Schultz suggested a shorter 

discovery period and a willingness to undergo mediation. See 

Gutchewsky v. Ready Mixed Concrete Co., 219 Neb. 803, 366 

N.W.2d 751 (1985) (affirming reinstatement of case dismissed 

for lack of prosecution but imposing costs of appeal and attorney fees upon plaintiff), disapproved on other grounds, Fidler 

v. Life Care Centers of America, 301 Neb. 724, 919 N.W.2d 

903 (2018). Lesser sanctions were available to the district 

court that could have allowed the case to be disposed of on its 

merits, despite the delay.
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Cite as 32 Neb. App. 59

As stated above, we review the court’s order for an abuse of 

discretion. An abuse of discretion occurs when a trial court’s 

decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, 

reason, and evidence. Talkington v. Womens Servs., supra. 

Each case must be looked at with regard to its own peculiar 

procedural history, and the situation at the time of the dismissal. Id.

Admittedly, Schultz’ case had been pending for 18 months 

without movement. It is troubling that in his affidavit, counsel 

for Schultz seems to admit that he had conducted no formal 

discovery and could not point to any significant efforts he had 

made to prepare the case for trial or otherwise seek resolution. However, the court had not issued any prior progression 

orders and upon receipt of the order to show cause, the parties 

drafted an agreed-upon progression schedule. The case had not 

been previously dismissed and reinstated, and dismissal would 

result in a bar to refiling. The State had no objection to the case 

going forward.

We find these facts distinguishable from cases in which 

the Supreme Court has upheld a dismissal for lack of prosecution. See, e.g., Billups v. Jade, Inc., 240 Neb. 494, 482 

N.W.2d 269 (1992) (dismissal affirmed for case pending 

nearly 3 years with two prior dismissals and reinstatements); 

Wilson v. Bryan Memorial Hosp., 215 Neb. 446, 338 N.W.2d 

796 (1983) (dismissal affirmed for cases pending over 3 years 

with prior placement on the dismissal docket); Schaeffer v. 

Hunter, 200 Neb. 221, 263 N.W.2d 102 (1978) (dismissal 

affirmed for case pending 4 years with two prior dismissals 

and reinstatements).

Although Schultz did not have a good excuse for the delay, 

the remaining factors indicate good cause existed to not dismiss the case. The district court relied only on the work completed prior to the hearing, and the district court’s failure to 

consider the remaining factors was untenable and an abuse of 

discretion. Accordingly, we conclude the district court abused 
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its discretion in dismissing Schultz’ case for want of prosecution and an absence of good cause.

Motion to Reconsider or Reinstate.

For purposes of completeness, we note that evidence was 

admitted at the hearing on the motion to reconsider or reinstate to further support the statements counsel made at the 

show cause hearing. Email correspondence between Schultz 

and the State evince the agreed-upon progression schedule 

prior to the show cause hearing. Email from the State’s attorney to the district court’s bailiff expresses the State’s belief 

that the case should continue and that a hearing on the matter 

was unnecessary. And an affidavit submitted by Schultz’ counsel shows that both parties were willing to expedite the discovery process to complete discovery in 8 months. Despite the 

evidence that both parties agreed the case should continue and 

had a plan to further it, the district court still determined that 

Schultz had not shown any cause to continue. As explained 

above, the district court did not analyze the numerous factors 

required for a show cause hearing, and its decision to overrule 

Schultz’ motion to reconsider or reinstate, despite the evidence 

admitted, further highlights an abuse of discretion.

CONCLUSION

We reverse the order of the district court dismissing Schultz’ 

complaint. Accordingly, we remand the cause for further 

proceedings.

Reversed and remanded for 

further proceedings.