LaShonne K. Thomas v. GEICO Casualty Company

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
September 12, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2023AP1456 Cir. Ct. No. 2020CVC2132

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

LASHONNE K. THOMAS,

PLAINTIFF-APPELLANT,

ALEX AZAR, SECRETARY OF THE U.S. DEPARTMENT OF
HEALTH & HUMAN SERVICES, AND WEST BEND MUTUAL
INSURANCE COMPANY,

INVOLUNTARY-PLAINTIFFS,

V.

GEICO CASUALTY COMPANY,

DEFENDANT,

NATIONAL INTERSTATE INSURANCE COMPANY,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Dane County:
RYAN D. NILSESTUEN, Judge. Reversed.
No. 2023AP1456

Before Kloppenburg, P.J., Graham, and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. LaShonne Thomas appeals an order that dismissed
her complaint due to failure to prosecute. We conclude that the dismissal violated
her right to due process because she did not receive adequate notice of the action
that she must take to avoid dismissal for failure to prosecute. Therefore, we
reverse.

¶2 Thomas initiated this case by filing a complaint seeking payment on
uninsured motorist coverage issued by defendant National Interstate Insurance
Company. In June 2022, the circuit court stayed the proceedings in this case. The
court did so because Thomas was separately seeking payment through a worker’s
compensation claim and, due to a reducing clause in National Interstate’s policy, if
she were awarded the full amount she sought in that claim, her recovery would
“exceed the policy limit and National will have no liability.” The stay order did
not set a time limit on the stay or otherwise require any action by any party in
response to future events.

¶3 On February 13, 2023, the circuit court issued a notice of hearing
placing this case on the dismissal calendar for March 14, 2023. The notice stated
that the case would be dismissed unless there was an objection in writing or by
appearance on that date. In response to the notice, Thomas filed a letter asking for
a scheduling conference to set a trial date. However, before that conference could
be held, National Interstate filed a motion to dismiss for failure to prosecute under
WIS. STAT. § 805.03. The motion alleged that, during the months since the stay
order, Thomas had not responded to several inquiries from its counsel and from

2
No. 2023AP1456

court staff as to the status of her worker’s compensation claim. This led to an
exchange of affidavits and briefs, and the court held a hearing in June 2023 at
which it granted the motion to dismiss. Thomas appeals.

¶4 Thomas argues, among other things, that the dismissal violated her
right to due process because she did not receive adequate notice. This is a
question of law that we decide de novo. Theis v. Short, 2010 WI App 108, ¶6,
328 Wis. 2d 162, 789 N.W.2d 585. For reasons we now explain, we conclude that
Thomas did not receive notice that can be considered adequate under controlling
case law.1

¶5 Analysis of this issue requires attention to the substance of the notice
that the party must receive before a dismissal for failure to prosecute is consistent
with due process. The core of the due process problem is that “failure to
prosecute” is an undefined term, and a dilatory plaintiff must be given a more
specific standard that the plaintiff is expected to satisfy to avoid dismissal for
failure to prosecute. It is not enough that the plaintiff be aware of the possibility
of dismissal; instead, for reasons we next discuss, there must be notice of what the
plaintiff must do to avoid dismissal for failure to prosecute, and the plaintiff must
be given an opportunity to take that action. Thomas relies on two cases that
explain and apply this concept. Both were reversals of dismissals for failure to
prosecute.

1
Thomas also argues that the circuit court erroneously exercised its discretion in
dismissing for failure to prosecute. We need not address Thomas’s argument on this point
because we conclude that her due process argument is dispositive.

3
No. 2023AP1456

¶6 The first case is Rupert v. Home Mut. Ins. Co., 138 Wis. 2d 1, 405
N.W.2d 661 (Ct. App. 1987). In that case, the dismissal process started, as here,
with the circuit court issuing a notice of intent to dismiss and scheduling a hearing
date to show cause. Id. at 5. The court then dismissed the case at that hearing for
failure to prosecute. Id. at 6. On appeal, we reviewed case law holding that,
because WIS. STAT. § 805.03 fails to provide a definite time frame for pursuing an
action, a party must have notice of the conduct that is required to diligently
prosecute an action. Id. at 7-8. We concluded that this notice requirement was not
satisfied by the holding of a hearing because that hearing “required Rupert to
excuse his violation of an unknown standard of conduct. Such a hearing falls
short of affording due process.” Id. at 9.

¶7 The second case is Theis. There, the circuit court dismissed for
failure to prosecute in response to the defendant’s motion, and after a hearing.
Theis, 328 Wis. 2d 162, ¶5. On appeal, we stated that “more than just notice of a
motion to dismiss for failure to prosecute and a hearing are required to provide due
process.” Id., ¶16. We reversed the dismissal because the plaintiff had no notice
before the motion to dismiss that her conduct might result in dismissal. Id., ¶23.
Our analysis was based on Rupert, which we described as standing for the
proposition that the court’s notice of intent to dismiss and a hearing were
inadequate because the hearing only gave Rupert the chance to meet an unknown
standard, and “did not give him an opportunity to meet the standard.” Id., ¶24.

¶8 In sum, we read these cases as requiring that, before dismissing a
case for failure to prosecute, a circuit court must provide notice of the specific
action that the court determines is necessary to avoid dismissal, so that the plaintiff
has an opportunity to conform the plaintiff’s conduct to a known standard. That
notice was not provided in this case. As described above, the circuit court placed

4
No. 2023AP1456

the case on the dismissal calendar, National Interstate moved to dismiss, and the
court held a hearing on that motion that resulted in dismissal. However, these are
the same types of notice that were held to be insufficient to satisfy due process in
Rupert and Theis.

¶9 On appeal, respondent National Interstate does not appear to dispute
this reading of Rupert and Theis. And, at no point does it assert that some form of
notice was given that would satisfy those cases. Indeed, National Interstate
acknowledges that the circuit court did not give Thomas a deadline to take specific
action, and that Thomas “may not have known exactly what needed to be done to
avoid dismissal.”

¶10 National Interstate instead argues that the absence of such notice is
not dispositive in this case because, in its view, Thomas did not take action of any
kind to move the worker’s compensation case forward after being made aware of
the possibility of dismissal. We reject this argument because National Interstate
provides no case law to support the proposition that, for notice purposes, it matters
what the dismissed party did or did not do before receiving adequate notice. We
see no sign in Rupert or Theis that the party’s conduct in response to the events
that were asserted to be adequate notice was a factor in determining whether
notice was, indeed, constitutionally adequate.

¶11 In addition, National Interstate faults Thomas for failing to “ask for
guidance.” However, again we see no indication in case law that a burden was on
the dismissed party to take affirmative steps to seek a definite standard from the
court before dismissal.

¶12 We recognize that, to the extent that the potential for dismissal based
on Thomas’s failure to prosecute is revisited after this case is remitted to the

5
No. 2023AP1456

circuit court, it may require careful consideration to describe the specific form of
action that Thomas must take to avoid dismissal, due to the relationship between
the worker’s compensation case and this case. However, while the obligation
appears ultimately to be on the circuit court to provide the necessary notice, we
see no reason why the court would be prevented from seeking input from the
parties as to the substance of that notice.

By the Court.—Order reversed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

6