[Cite as Norris v. Greater Cleveland Regional Transit Auth., 2022-Ohio-3552.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

BYRON NORRIS, :

Plaintiff-Appellant, :

Nos. 111238 and 111383

v. :

GREATER CLEVELAND REGIONAL :

TRANSIT AUTHORITY,

:

Defendants-Appellees.

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: October 6, 2022

Civil Appeal from the Cuyahoga County Court of Common Pleas

Case No. CV-20-935542

Appearances:

Daniel Mark Katz Co LPA and Murray Richelson, for 

appellant. 

Sheryl King Benford, General Counsel — Deputy General 

Manager for Legal Affairs, Keith A. Ganther, Acting 

Deputy General Counsel — Litigation, and Brian R. 

Gutkoski, Associate Counsel II, for appellee. 
MICHELLE J. SHEEHAN, P.J.:

Plaintiff-appellant Byron Norris filed a tort claim against defendantappellee Greater Cleveland Regional Transit Authority (“RTA”) alleging negligent 

operation of a bus resulted in injuries to him and damages to his vehicle. The trial 

court ultimately granted RTA’s motion to dismiss for want of prosecution and 

dismissed the case with prejudice. Norris filed a Civ.R. 60(B) motion for relief from 

judgment, alleging he was unable to attend a scheduled deposition because he was 

arrested and incarcerated several days before the deposition. He claimed that his 

incarceration constituted excusable neglect. The docket, however, reflects a drawnout history of litigation and that Norris’s lack of participation preceded his 

incarceration. Under the circumstances of this case, the trial court properly found 

Norris’s incarceration did not constitute excusable neglect and its dismissal of the 

case with prejudice was not an abuse of discretion. 

Procedural History

The case stemmed from an incident in July 2020 when Norris’s vehicle 

collided with the rear of an RTA bus. The accident report prepared by Patrolman 

Tarik Thomas concluded that Norris “failed to yield the right of way to the GCRTA 

bus, which was the primary cause of the accident.” In August 2020, Norris filed the 

instant lawsuit alleging RTA was negligent in operating the bus. RTA filed an answer 

and a counterclaim.

The docket reflects the matter was set for a case-management 

conference on December 30, 2020, and the trial court warned that a failure to 
appear at the conference may result in sanctions including a dismissal of the case. 

The conference was subsequently cancelled for unknown reasons. The trial court 

scheduled another case-management conference for March 3, 2021, and again 

warned that a failure to appear may result in sanctions including a dismissal. Due 

to COVID-19, the trial court converted the in-person conference to an email case 

conference. Following the email conference, on February 23, 2021, the trial court 

set forth deadlines for discovery, expert reports, and dispositive motions and also 

scheduled a final pretrial for July 27, 2021, and trial for August 16, 2021. The court 

warned that a failure to appear at any scheduled date will result in a dismissal with 

prejudice. 

To meet the discovery deadline of March 12, 2021, RTA scheduled 

Norris’s deposition on March 8, 2021. Norris appeared for the deposition but 

refused to answer questions and abruptly terminated his counsel’s representation. 

On the same day, his counsel filed a motion to withdraw from further 

representation, stating that “Plaintiff has failed to cooperate, and Plaintiff has 

discharged the undersigned.” 

Thereafter, RTA moved for summary judgment. Norris, now 

represented by another counsel from the same law firm, filed a notice for voluntary 

dismissal pursuant to Civ.R. 41(A), stating that the case had been settled and 

plaintiff voluntarily dismissed the case without prejudice. RTA asked the court to 

strike the notice, informing the court that the case had not been settled and that its 
compulsory counterclaim was pending. Norris’s new counsel withdrew the 

voluntary dismissal, explaining that the notice was filed in error. 

On June 22, 2021, the trial court journalized an entry requiring 

plaintiff’s counsel to submit various documents by July 16, 2021, and it again warned 

that a failure to submit the requested documents will result in the case being 

dismissed for a failure to prosecute. The trial court subsequently denied RTA’s 

motion for summary judgment. On October 4, 2021, RTA filed a notice of deposition 

of Norris for October 18, 2021. 

Apparently, on October 10, 2021, Norris was arrested for having 

weapons while under disability. He, however, never notified the court, his counsel, 

or RTA of his arrest and incarceration or his unavailability for the deposition. On 

the scheduled deposition day, his original counsel, apparently reengaged by Norris, 

appeared and reported that he expected Norris’s appearance because he had notified 

Norris of the deposition. Norris never appeared for the second attempted 

deposition.

Neither Norris nor his counsel notified RTA or the court that his nonappearance at the deposition was due to his incarceration. On October 25, 2021, 

RTA filed a motion to dismiss with prejudice for want of prosecution pursuant to 

Civ.R. 41(B)(1). RTA stated that, despite its reasonable notifications and attempts 

on March 8, 2021, and October 18, 2021, to depose Norris, he failed to make himself 

available for the depositions, which made it impossible for RTA to prepare its 

defense and to meaningfully participate in any pretrial proceedings. 
No opposition to the motion to dismiss was filed by Norris’s counsel. 

Seventy-seven days after RTA filed the motion to dismiss, the trial court granted the 

dismissal on January 11, 2022. The trial court found the drawn-out history of the 

case made dismissal with prejudice appropriate. The court noted Norris failed to 

make himself available for scheduled depositions; removed and reengaged his 

counsel but still failed to appear for a properly noticed deposition; and failed to make 

himself available for phone conferences when instructed. The trial court pointed 

out that Norris’s dilatory conduct required multiple filings by the defendant to 

obtain necessary discovery and he had been advised via his counsel that a failure to 

comply with discovery requests would result in a dismissal with prejudice. 

Three days after the trial court granted the motion to dismiss, on 

January 14, 2022, Norris, through his original counsel, filed a Civ.R. 60(B) motion 

for relief from judgment. He informed the court, for the first time, that Norris was 

arrested on October 10, 2021, and therefore unable to attend the scheduled 

deposition on October 18, 2021. Norris maintained that he “demonstrate[d] 

excusable neglect [as to] why the Plaintiff could not respond to discovery” and was 

entitled to relief from judgment. 

RTA opposed the motion, arguing Norris’s incarceration did not 

constitute excusable neglect meriting a relief from judgment. After Norris filed the 

motion for relief from judgment, he also filed a notice of appeal from the trial court’s 

judgment dismissing the case, in 8th Dist. Cuyahoga No. 111238. This court 
remanded the matter to the trial court to rule on the pending Civ.R. 60(B) motion. 

Upon remand, the trial court denied Norris’s Civ.R. 60(B) motion. 

The court found Norris to have continuously failed to participate in the 

development of his own case and to communicate with his own counsel and had 

shown a disregard for the court’s orders and properly noticed depositions. The court 

noted that between October 25, 2021, when RTA filed the motion to dismiss for want 

of prosecution, and January 11, 2022, when the court granted the motion to dismiss, 

there was no indication from Norris or his counsel that he was unavailable due to 

his incarceration. The court also observed that there was no excuse offered for his 

lack of cooperation or participation at the March 8, 2021 deposition and multiple 

telephone conferences and that no settlement negotiations were ever communicated 

to the court as requested. The trial court, noting that it was Norris’s responsibility 

to communicate with his counsel and to participate in counsel’s representation, 

found that Norris’s “willful disregard for the court orders, civil rules, local rules, and 

properly noticed depositions constitute[d] a complete disregard for the judicial 

system” and that his incarceration more than a year after he filed the complaint did 

not qualify as excusable neglect. 

Norris appealed from the judgment denying his Civ.60(B) motion, in 

8th Dist. Cuyahoga No. 111383. This court consolidated the two appeals. On appeal, 

Norris raised the following three assignments for our review, which relate to both 

the trial court’s dismissal of the case and its denial of his Civ.R. 60(B) motion:
I. The trial court erred in dismissing plaintiff’s complaint with 

prejudice for failing to prosecute when such dismissal was ineffective 

as it violates Civil Rule 30(A).

II. The trial court erred in failing to provide notice to the plaintiff of 

its intent to dismiss the case with prejudice.

III. The dismissal with prejudice for failing to comply with discovery 

was an abuse of discretion.

Before we address the merits of Norris’s claims, we note that RTA 

argues Norris waives all claims regarding the dismissal because he did not oppose 

RTA’s motion to dismiss. We recognize this court has considered issues raised in 

the motion to dismiss waived if the motion is unopposed. Demsey v. Haberek, 8th 

Dist. Cuyahoga No. 104894, 2017-Ohio-1453, ¶ 7. In the interest of justice, however, 

we will review the claims raised in this appeal on its merits. Id. As the assignments 

of error are related, we address the assignments of error jointly for ease of 

discussion.

Law and Analysis

Civ.R. 41(B)(1) governs dismissal for a failure to prosecute. It states,

“Where the plaintiff fails to prosecute, or comply with these rules or any court order, 

the court upon motion of a defendant or on its own motion may, after notice to the 

plaintiff’s counsel, dismiss an action or claim.” 

“The decision to dismiss a case with prejudice under Civ.R. 41(B)(1) is 

within the trial court’s discretion.” Miller v. Plain Dealer Publishing Co., 8th Dist. 

Cuyahoga No. 101335, 2015-Ohio-1016, ¶ 11, citing Tarquinio v. Estate of Zadnik, 

8th Dist. Cuyahoga Nos. 95767 and 96246, 2011-Ohio-3980, ¶ 20, citing Jones v. 
Hartranft, 78 Ohio St.3d 368, 371, 678 N.E.2d 530 (1997). However, because a 

dismissal with prejudice precludes a judgment on the merits of plaintiff’s claims, we 

review a trial court’s decision to dismiss a case with prejudice “under a heightened 

abuse-of-discretion standard.” Id., citing Simmons v. Narine, 2014-Ohio-2771, 15 

N.E.3d 1206, ¶ 7 (8th Dist.). 

As this court explained, the trial court’s authority under Civ.R. 41(B)(1) 

is based on its “power to manage and administer its own docket and to ensure the 

orderly and expeditious disposition of cases.” N. Elec., Inc. v. Amsdell Constr., Inc., 

8th Dist. Cuyahoga No. 99775, 2013-Ohio-5433, ¶ 9, citing Pembaur v. Leis, 1 Ohio 

St.3d 89, 91, 437 N.E.2d 1199 (1982). “The court’s inherent power to control its 

docket includes the discretionary power to dismiss actions as a sanction for 

disregarding court orders or failing to prosecute.” Id., citing Civ.R. 41(B)(1) and 

Jones, supra. 

The factors to consider in reviewing a Civ.R. 41(B)(1) dismissal with 

prejudice include the drawn-out history of the litigation and evidence that a plaintiff 

is deliberately proceeding in dilatory fashion. 533 Short N. LLC v. Zwerin, 2017-

Ohio-9194, 103 N.E.3d 258, ¶ 21 (10th Dist.). Therefore, while we apply a 

heightened standard of review for a dismissal with prejudice, we will affirm the trial 

court’s decision if the conduct of the party is “‘so negligent, irresponsible, 

contumacious or dilatory as to provide substantial grounds for a dismissal with 

prejudice for a failure to prosecute * * *.’” Id., quoting Harris v. Harris, 10th Dist. 

Franklin No. 98AP-1077, 1999 Ohio App. LEXIS 2867 (June 24, 1999). 
Here, the trial court granted RTA’s motion to dismiss with prejudice 

77 days after the motion was filed and remained unopposed. Three days after the 

judgment, Norris filed a Civ.R. 60(B) motion for relief from judgment, alleging he

was arrested on October 10, 2021, and unable to attend the October 18, 2021 

deposition, and claiming his incarceration constituted excusable neglect. 

In order to prevail on a motion for relief from judgment under 

Civ.R. 60(B), the moving party must demonstrate that (1) the party has a 

meritorious defense or claim to present if relief is granted; (2) the party is entitled 

to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the 

motion is made within a reasonable time. GTE Automatic Elec., Inc. v. ARC 

Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the 

syllabus. If any of these three requirements is not met, the motion should be 

overruled. Svoboda v. Brunswick, 6 Ohio St.3d 348, 351, 453 N.E.2d 648 (1983). 

Regarding the second requirement, Civ.R. 60(B) states that “[o]n motion and upon 

such terms as are just, the court may relieve a party or his legal representative from 

a final judgment, order or proceeding for the following reasons: (1) mistake, 

inadvertence, surprise or excusable neglect * * *.”

We recognized that “a court cannot dismiss a civil complaint from an 

incarcerated individual based solely on the fact that the individual is incarcerated.” 

Sankey v. Fasano, 2018-Ohio-3107, 107 N.E.3d 17, ¶ 23 (11th Dist.). “[D]ismissal of 

a pro se inmate’s complaint for want of prosecution where no means of appearance 

is available is an abuse of the trial court’s discretion.” Id. at ¶ 24. See also Porter v. 
Rose, 8th Dist. Cuyahoga No. 79697, 2002-Ohio-3432, ¶ 19. “Where an action was 

dismissed for a failure to prosecute due to the inmate’s incarceration and inability 

to appear at a hearing, and the inmate had been an active participant in the 

proceedings,” a dismissal with prejudice would not advance the judicial principle of 

deciding cases on the merits. Sankey at ¶ 23 

Norris’s history of nonparticipation and dilatory conduct that

preceded his incarceration distinguishes this case from the foregoing cases involving 

an incarcerated party. As the trial court found, he failed to make himself available 

for phone conferences when specifically instructed to do so; never communicated 

settlement negotiations to the trial court upon its request; and, while he appeared at 

the first deposition, he refused to cooperate at the deposition. Furthermore, Norris 

was represented by counsel for the most part of the case; while he terminated his 

original counsel in March 2021, a substitute counsel from the same law firm 

subsequently represented him until October 18 2021, when his original counsel 

appeared at the second scheduled deposition (but was not made aware of Norris’s 

incarceration). 

Under the circumstances of this case, the trial court properly found 

Norris’s incarceration more than a year after he filed the complaint did not 

constitute excusable neglect. The procedural history of the case reflects that Norris 

had not been an active participant in the case before his incarceration. The inaction 

of a defendant is not excusable neglect if it can be labeled as a “complete disregard 

for the judicial system.” Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18, 20, 665 
N.E.2d 1102 (1996). The trial court here specifically found Norris to have displayed 

a complete disregard for the judicial system and acted in a dilatory manner. “The 

trial court is in the best position to judge whether delays in the prosecution of a case 

are due to legitimate reasons when determining whether dismissal for lack of 

prosecution is warranted.” Miller, 2015-Ohio-1016, at ¶ 15, citing Gelske v. 800 

Constr. Co., 8th Dist. Cuyahoga No. 80163, 2002-Ohio-3434, ¶ 13. It is Norris’s 

dilatory conduct throughout the history of the case — including his failure to notify 

the defendant, the court, and apparently his counsel of his incarceration — not his 

failure to appear at the second deposition, that led to the dismissal of the case with 

prejudice. 

Indeed, on appeal, Norris does not appear to argue that his 

incarceration constituted excusable neglect. Rather, he argues on appeal that the 

trial court’s ruling contravened Civ.R. 30(A).

Civ.R. 30(A) states, in pertinent part, “[t]he deposition of a person 

confined in prison may be taken only by leave of court on such terms as the court 

prescribes.” The rule is not applicable under the circumstances of this case. The 

rule prohibits the deposition of a confined person unless permitted by the trial court. 

At the time RTA’s notice of deposition was filed on October 4, 2021, Norris was not 

yet arrested, and Norris failed to make RTA or the trial court aware of his arrest on 

October 10, 2021, until January 14, 2022, when he filed the Civ.R. 60(B) motion. 

Norris’s reliance in Civ.R. 30(A) is misplaced. 
Norris also argues the trial court failed to provide him with notice with 

its intent to dismiss the case with prejudice. The claim lacks merit as well. “The 

notice requirement of Civ.R. 41(B)(1) is satisfied ‘when counsel has been informed 

that dismissal is a possibility and has had a reasonable opportunity to defend against 

dismissal.’” Walker v. Cleveland Clinic Found., 8th Dist. Cuyahoga No. 91648, 

2009-Ohio-2261, ¶ 7, quoting Quonset Hut, Inc. v. Ford Motor Co., 80 Ohio St.3d 

46, 684 N.E.2d 319 (1997). Furthermore, “[w]hen a defendant files a motion to 

dismiss for want of prosecution, and the court affords the plaintiff the opportunity 

to respond, the notice requirement of Civ.R. 41(B)(1) is met.” Walker at ¶ 10, citing 

Shafron v. Erie Rd. Dev. Co., 8th Dist. Cuyahoga No. 90675, 2008-Ohio-3813, ¶ 15. 

See also Sazima v. Chalko, 86 Ohio St.3d 151, 156, 712 N.E.2d 729 (1999) (a pending 

motion to dismiss was sufficient to put the plaintiff on implied notice of an 

impending dismissal). 

Here, RTA filed the motion to dismiss for want of prosecution on 

October 25, 2021. The motion was served upon Norris’s original counsel, who 

represented him at the October 18, 2021 deposition and apparently continued to 

represent him because no notice of withdrawal was filed. The trial court did not 

grant the motion until 77 days later. Counsel was informed of the possibility of 

dismissal and was afforded ample opportunity to respond to the motion to dismiss. 

As such, the Civ.R. 41(B)(1) notice requirement was met in this case. 

For the foregoing reasons, appellant’s first, second, and third 

assignments are without merit. The trial court’s judgment is affirmed.
Judgment affirmed. 

It is ordered that appellees recover of appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the 

common pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 

27 of the Rules of Appellate Procedure.

__________________________________

MICHELLE J. SHEEHAN, PRESIDING JUDGE

MARY EILEEN KILBANE, J., and

EILEEN T. GALLAGHER, J., CONCUR