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### STATE OF MICHIGAN

COURT OF APPEALS

KEFER BROWN,

Plaintiff-Appellant,

and

PROFESSIONAL CARE TRANSPORTATION, INC., and NORTHLAND RADIOLOGY, INC.,

Intervening Plaintiffs UNPUBLISHED December 20, 2016

v No. 328783 Wayne Circuit Court LIBERTY MUTUAL INSURANCE, LC No. 14-008926-NF

Defendant-Appellee.

Before: G ADOLA , P.J., and F ORT H OOD and R IORDAN , JJ.

P ER C URIAM

.

Plaintiff appeals as of right the order of the trial court dis missing his complaint pursuant
to MCR 2.502. We affirm.

This case arises from a motor vehicle accident that allegedly occurred on February 20, 2012, in which plaintiff claims he was injured. Plaintiff file d this action against defendant on July 11, 2014, claiming that he was insured under the provision s of a no-fault policy issued by defendant, but that defendant had refused to provide plaintiff with personal injury protection benefits. According to defendant, it was never properly served with the complaint and consequently never filed an answe r or otherwise appeared in the action.

The trial court entered a scheduling order on October 10, 2014 . By checking a box on the order, the trial court directed plaintiff to serve the scheduli ng order on all other parties in the action. Plaintiff, however, did not serve the scheduling order as required. Instead, plaintiff filed a motion for entry of default judgment on December 30, 2014, re questing that the trial court enter a default judgment in light of defendant’s failure to ple ad or appear in the matter. On March 12, 2015, the trial court i ssued a notice that the case w ould be dismissed for no progress. Plaintiff did not respond to the notice. The trial court there after dismissed the case without-2- prejudice by order d ated June 12, 2015, stating that the case w as dismissed due to plaintiff’s counsel’s failure to comply wit h the trial court’s October 10, 2014 scheduling order.

Seventeen days later, plaintiff moved to reinstate the action and for entry of a default judgment. In the motion and accompanying brief, plaintiff did not argue that there was good
cause to reinstate the action. A t the motion hearing, the tria l court asked plaintiff’s counsel why the case should be reinstated, but plaintiff’s counsel stated, “I have no compelling reasons, Your
Honor.” The trial court denied t he motion to reinstate the act ion.

Plaintiff argues on appeal that the trial court abused its dis cretion when it denied the
motion to reinstate because the re was good cause for reinstatin g his case. We review a trial court’s decision concerning a mo tion to reinstate an action for an abuse of discretion. Wickings v Arctic Enterprises, Inc , 244 Mich App 125, 138; 624 NW2d 197 (2001). The abuse of dis cretion standard acknowledges that in some circumstances, there is more than one reasonable and principled outcome. Maldonado v Ford Motor Co , 476 Mich 372, 388; 719 NW2d 809 (2006).
An abuse of discretion occurs when the decision results in an o utcome that falls outside of the range of principled outcomes. Woodard v Custer , 476 Mich 545, 557; 719 NW2d 842 (2006).

Pursuant to MCR 2.502(A)(1), a trial court may dismiss a case due to the parties’ failure to make progress. Wickings , 244 Mich App at 138. The trial court may reinstate an action that it dismissed for lack of progress if the moving party demonstrates good cause to reinstate the action. MCR 2.502(C). When determining whether good cause to reinstate an action has been demonstrated, this Court has su ggested consideration of the fol lowing factors: (1) whether the dismissal for lack of progress was based upon a procedural or t echnical error, (2) the moving party’s diligence before dismissal, (3) the moving party’s just ification for the lack of progress before dismissal, (4) the moving party’s diligence in attemptin g to settle the case or a prompt motion to reinstate the action, and (5) potential prejudice to the nonmovant if the action were to
be reinstated. Wickings , 244 Mich App at 142. This list is not exhaustive, the factor s are not necessarily applicable in every case, and the trial court has w ide discretion in its decision. Id . at 142 n 28, 145.

In this case, plaintiff argues that there is good cause 1 for reinstating plaintiff’s case because plaintiff’s failure to serve the scheduling order was a n inadvertent procedural error. Plaintiff argues that the box checked on the scheduling order w as small and difficult to see and therefore plaintiff inadvertently failed to notice that plainti ff was directed to serve the order on the other parties. Under factor one of the analysis suggested in Wickings , this argument is somewhat persuasive. In this case, however, plaintiff also fai led to respond to the trial court’s notice warning that dismissal was imminent by investigating and correcting the reason for the imminent dismissal, making this argument less persuasive. We a lso note, considering factors two and three, that plaintiff ha d not otherwise diligently purs ued the action, other than by

1 Defendant argues that this issue is unpreserved because plaint iff failed to make these arguments
before the trial court. We not e that although plaintiff did no t present these specific arguments, plaintiff did move before the tr ial court to reinstate the case and therefore the issue of whether
the trial court abused its dis cretion in denyi ng the motion is preserved for revie w by this Court.-3- seeking a default judgment, and did not provide the trial court with a persuasive reason for the lack of diligence other than plaintiff’s failure to note that h e had been ordered to serve the scheduling order. 2 With regard to factor four, we note that plaintiff did move p romptly to reinstate the action within 17 days of the trial court’s order dismissing the action. However, plaintiff did not include any just ification for why he had fail ed to serve the scheduling order or why the case should be reinstated. At the hearing, plaintiff’s counsel again failed to give the court any reason why this cas e should be reinstated.

Lastly, plaintiff argue s that under the final Wickings factor defendant will not be prejudiced if the case is reinstated because the delay was rela tively short. It is unclear from the record whether defendant would be prejudiced if this case were reinstated. However, even if we are to assume that this last factor favors reinstatement, it is not apparent that the trial court abused its discretion given that the other factors support the trial court’s decision to deny the motion. We cannot say that the trial court’s decision to deny reinstatement falls outside the range of principled outcomes a nd therefore we find no abuse of discretion.

Affirmed.

/s/ Michael F. Gadola
/s/ Karen M. Fort Hood
/s/ Michael J. Riordan

2 With respect to plaintiff’s failure to note that he was obliga ted to serve the scheduling order on defendant because the check box requiring this was not readily apparent, our review of the record suggests otherwise. The requirement to serve the scheduling or der on defendant is included in the first of just three numbered sections of the one-page order , with the words “plaintiff is ordered” appearing in that section in capital boldface letterin g. Contrary to plaintiff’s assertion, it would be difficult for anyone w ho gave the order even cursor y review to miss this obligation.