Court of Appeals of Indiana | Memorandum Decision 18A-PL-830 | July 12, 2019 Page 1 of 9

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

APPELLANT PRO SE

Jim Nowacki

Gary, Indiana

ATTORNEY FOR APPELLEE

MAIACO, LLC

Michael V. Knight

Barnes & Thornburg, LLP

South Bend, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Jim Nowacki,

Appellant-Plaintiff,

v.

Gary Redevelopment 

Commission, Kenya Jones, Eric 

Reaves, Namon Flournoy, Bill 

Joiner, Marion J. Johnson, and 

Maiaco, LLC,

1

Appellees-Defendants.

July 12, 2019

Court of Appeals Case No.

18A-PL-830

Appeal from the Lake Superior 

Court

The Honorable Bruce D. Parent, 

Judge

Trial Court Cause No.

45D04-1608-PL-75

 

1 Attorney Gilbert King, Jr., filed an appearance and brief for the appellee parties other than Maiaco, LLC. 

However, the brief was returned as defective, and a corrected brief was not submitted or filed.
Court of Appeals of Indiana | Memorandum Decision 18A-PL-830 | July 12, 2019 Page 2 of 9

Mathias, Judge.

[1] The Lake Superior Court dismissed Jim Nowacki’s (“Nowacki”) complaint 

against the Gary Redevelopment Commission, Kenya Jones, Eric Reaves, 

Namon Flournoy, Bill Joiner, Marion J. Johnson,2 and Maiaco, LLC 

(collectively “the Appellees”) pursuant to Trial Rule 41(E). Nowacki appeals 

and argues that the trial court abused its discretion when it dismissed his 

complaint for failure to prosecute. 

[2] We affirm.

Facts and Procedural History

[3] On August 3, 2016, Nowacki filed a complaint for declaratory judgment and 

injunctive relief against the Appellees alleging that the Gary Redevelopment 

Commission improperly entered into a contract with Maiaco, LLC, after they 

colluded to prevent any other bids for a “redevelopment partner organization.” 

Appellant’s App. p. 9. Nowacki also alleged that the Gary Redevelopment 

Commission’s bidding process “did not comply with City of Gary Ordinances 

regarding contracting.” Id. at 7. The Appellees generally denied the allegations 

in Nowacki’s complaint and also raised several affirmative defenses, including 

failure to state a claim for which relief can be granted.

 

2 The commissioners were dismissed from the proceedings in their individual capacities on January 19, 2018 

pursuant to Indiana Code section 34-13-3-5(a). Appellee’s App. p. 122.
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[4] The trial court held a case management conference on January 31, 2017. At the 

conference, Nowacki indicated that he intended to hire counsel. The parties 

also agreed that Nowacki would respond to all outstanding discovery by March 

30, 2017. Further, the court ordered all discovery to be completed by October 

31, 2017.

[5] Prior to the case management conference, Maiaco had served interrogatories 

and requests for production of documents on Nowacki. On March 29, 2017, 

Nowacki responded to the discovery requests. Nowacki answered three of the 

twenty-two interrogatories. With regard to the remaining nineteen 

interrogatories, Nowacki replied that he “would like to meet with [his] attorney 

on these questions as they are beyond my ability and knowledge to answer.” 

Appellee’s App. p. 29. Maiaco also served on Nowacki requests for production 

of documents that would support the allegations in his complaint. Nowacki 

responded that he had “no such document[s] in [his] possession at this time.” 

Id. at 30. However, Nowacki did produce emails in his possession that 

concerned the bidding process.

[6] Nowacki did not supplement his discovery responses, serve any discovery 

requests on the Appellees, or file any pleadings. Therefore, on September 15, 

2017, Maiaco filed a motion to dismiss for failure to prosecute pursuant to Trial 

Rule 41(E). Shortly thereafter, the remaining Appellees also moved to dismiss 

Nowacki’s complaint.
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[7] On October 23, 2017, the trial court held a show cause hearing on the motions 

to dismiss Nowacki’s complaint. Nowacki appeared pro se. The court explained 

the discovery process to Nowacki and the importance of answering the 

Appellees’ discovery requests. After hearing argument of the parties, the trial 

court took the motions to dismiss under advisement. The court also ordered 

Nowacki to “thoroughly” complete and return any outstanding discovery to 

Defense counsel by November 20, 2017. Id. at 78. On its own motion, the court 

also ordered the parties to complete all discovery by December 29, 2017.

Nowacki did not provide any discovery responses to Maiaco3 within the time 

frames established in the trial court’s October 23, 2017 case management order.

[8] On November 28, 2017, the Appellees filed a second motion to dismiss for 

failure to prosecute. Nowacki did not file a response to the motion. However,

on December 28, 2017, he filed five separate discovery documents on the court, 

which he failed to serve on opposing counsel.

[9] The trial court held a hearing on January 17, 2018, at which Nowacki again 

appeared pro se. The trial court granted the motions to dismiss after finding:

This judicial officer generally holds a “soft spot” for SelfRepresented Litigants; to this end, the Court reached[ ]out 

further than most Courts would have related to this Court’s 

Order of October 23, 2017, explaining to NOWACKI in open 

court how to conduct discovery and how the discovery rules 

 

3 On November 19, 2017, Nowacki served the Gary Redevelopment Commission with answers to Maiaco’s 

interrogatories. 
Court of Appeals of Indiana | Memorandum Decision 18A-PL-830 | July 12, 2019 Page 5 of 9

actually work. This Court has long enjoyed the fighting spirit of 

NOWACKI and recognizes the significant amount of work that 

he puts into certain portions of his cases.

Discovery is closed and NOWACKI did not provide either 

remaining party with discovery to which each is entitled.

NOWACKI[] ... did not follow the discovery rules, did not 

provide MAIACO and the RDC with the discovery sought in a 

timely or complete manner, and most importantly did not move 

his case forward as he was Ordered by the Court.

Appellee’s App. p. 17.

[10] The Gary Redevelopment Commission filed a motion to amend the trial court’s

order, which the court granted. Specifically, the court amended its order to 

clarify that Nowacki “did timely provide the discovery at issue to counsel” for 

the Gary Redevelopment Commission defendants, but not Maiaco. Id. at 110. 

Further, the court found that “the discovery at issue was owed to MAIACO, 

and it remains true and uncontested that NOWACKI did not provide this 

discovery to counsel for MAIACO.” Id. Therefore, the trial court affirmed its 

order dismissing Nowacki’s complaint.

[11] Nowacki subsequently filed a motion for relief from judgment and a motion to 

correct error. In its order denying the motions, the court found that Nowacki 

“neither heeded the warnings of this Court nor availed himself to the extensions 

provided” and “ignored the Court’s instructions and [] failed to comply with the 

Court’s deadlines.” Id. at 123. Nowacki now appeals.
Court of Appeals of Indiana | Memorandum Decision 18A-PL-830 | July 12, 2019 Page 6 of 9

Discussion and Decision

[12] Nowacki’s complaint was dismissed pursuant to Trial Rule 41(E), which 

provides:

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. 

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 and upon such terms 

that the court in its discretion determines to be necessary to 

assure such diligent prosecution.

[13] “[W]e will reverse a Trial Rule 41(E) dismissal for failure to prosecute only in 

the event of a clear abuse of discretion, which occurs if the trial court’s decision 

is against the logic and effect of the facts and circumstances before it.” Petrovski 

v. Neiswinger, 85 N.E.3d 922, 924 (Ind. Ct. App. 2018). “We will affirm if there 

is any evidence that supports the decision of the trial court.” Belcaster v. Miller, 

785 N.E.2d 1164, 1167 (Ind. Ct. App. 2003), trans. denied.

[14] The purpose of Trial Rule 41(E) is “‘to ensure that plaintiffs will diligently 

pursue their claims. The rule provides an enforcement mechanism whereby a 

defendant, or the court, can force a recalcitrant plaintiff to push his case to 

resolution.’” Id. at 1167 (quoting Benton v. Moore, 622 N.E.2d 1002, 1006 (Ind. 

Ct. App. 1993)). “The plaintiff bears the burden of moving the litigation and the 

trial court has no duty to urge or require counsel to go to trial, even where it 
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would be within the court’s power to do so.” Lee v. Pugh, 811 N.E.2d 881, 885 

(Ind. Ct. App. 2004). “‘Courts cannot be asked to carry cases on their dockets 

indefinitely and the rights of the adverse party should also be considered. He 

should not be left with a lawsuit hanging over his head indefinitely.’” Belcaster, 

785 N.E.2d at 1167 (quoting Hill v. Duckworth, 679 N.E.2d 938, 939–40 (Ind. 

Ct. App. 1997)). See also Wright v. Miller, 989 N.E.2d 324, 327 (Ind. 2013) 

(observing that Indiana’s trial courts decide over 1.5 million cases per year and 

“[m]anaging such a heavy volume demands robust court docket management 

and insistence upon compliance with the discovery rules, which are specifically 

intended to minimize the need for judicial involvement”).4

[15] Courts must balance nine factors when determining whether to dismiss a case 

for failure to prosecute. Petrovski, 85 N.E.3d at 925. Those factors include:

(1) the length of the delay; (2) the reason for the delay; (3) the 

degree of personal responsibility on the part of the plaintiff; (4) 

the degree to which the plaintiff will be charged for the acts of his 

attorney; (5) the amount of prejudice to the defendant caused by 

the delay; (6) the presence or absence of a lengthy history of 

having deliberately proceeded in a dilatory fashion; (7) the 

existence and effectiveness of sanctions less drastic than dismissal 

which fulfill the purposes of the rules and the desire to avoid 

court congestion; (8) the desirability of deciding the case on the 

merits; and (9) the extent to which the plaintiff has been stirred 

 

4 Wright was decided in 2013, and in the ensuing six years, the caseload of our trial courts statewide has 

grown to more than two million cases per year. See Indiana Judicial Branch Website at 

https://www.in.gov/judiciary/admin/2666.htm (last visited on June 27, 2019).
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into action by a threat of dismissal as opposed to diligence on the 

plaintiff's part.

Id. 

[16] “‘The weight any particular factor has in a particular case appears to depend 

upon the facts of that case.’” Id. (quoting Belcaster, 785 N.E.2d at 1167). 

“However, a lengthy period of inactivity may be enough to justify dismissal 

under the circumstances of a particular case, especially if the plaintiff has no 

excuse for the delay.” Belcaster, 785 N.E.2d at 1167. Although Indiana does not 

require trial courts to impose lesser sanctions before applying the ultimate 

sanction of dismissal, we view dismissals with disfavor, and dismissals are 

considered extreme remedies that should be granted only under limited 

circumstances. Caruthers v. State, 58 N.E.3d 207, 211 (Ind. Ct. App. 2016).

[17] In this case, there was a ten-month delay during which Nowacki failed to 

respond to discovery requests. And the trial court found that Nowacki failed to 

establish a reason or excuse for the delay. Nowacki, who is proceeding pro se, is 

also responsible for the delay. The trial court gave him extensions to complete 

discovery, and he failed to do so, without explanation. The trial court was 

patient with Nowacki and gave him additional time to complete discovery after 

he failed to comply with the court’s first case management order. Although 

dismissal of his complaint is a severe sanction, Nowacki failed to avail himself 

of the opportunity the court gave him to avoid dismissal. As the trial court 

appropriately observed,
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NOWACKI neither heeded the warnings of this Court nor 

availed himself to the extensions provided. He has ignored the 

Court’s instructions and has failed to comply with the Court’s 

deadlines. Rhetorically, the Court must ask what the purpose is 

of a deadline if it can be freely ignored without consequence?

Appellant’s App. p. 123.

[18] Our judicial preference for deciding cases on their merits always weighs against 

dismissal. And in this case, the only prejudice to the Appellees is the lingering 

nature of this case. But the remaining factors weigh in favor of dismissal, and in 

particular, Nowacki’s failure to comply with the court’s case management 

orders without any explanation weighs heavily against his arguments. For this 

reason, we conclude that the trial court acted within its discretion when it 

dismissed Nowacki’s complaint.

[19] Affirmed.

Vaidik, C.J., and Crone, J., concur.