STATE OF NEW HAMPSHIRE
CARROLL, SS SUPERIOR COURT
Docket No. 212-2011-CV-285
Donald McMullin
v.
Wakefield Police Department
ORDER
By order dated and issued February 13, 2012, the court ruled on the defendant's Motion for Attorney's Fees, to Reschedule Hearing, and for Further Relief. That order determined:
As to Request A (attorney's fees): Request for attorney's fees for ordinary case preparation is denied. Request for attorney's fees in the amount of $572.50 for hearing at which the plaintiff did not appear and subsequent motion and related issues is granted. As to Request B (reschedule after attorney's fees paid): Granted. As to Requests C and D (future right to know requests): Not ripe.
The plaintiff did not appear at the scheduled January 25, 2012 hearing. There can be no doubt that the plaintiff had notice of the hearing, as that notice was set out in the Orders of Notice issued to him which he caused to be served on the defendant. Ordinarily, upon failure of a plaintiff to appear to prosecute the plaintiff's case, the matter is dismissed without prejudice. See 5 R. Wiebusch, NEW HAMPSHIRE PRACTICE, CIVIL PRACTICE AND PROCEDURE, ยง35.01 (failure of plaintiff to prosecute his case as warranting dismissal); see also Superior Court Rule 75.
In the present case, the defendant did not request dismissal of the plaintiff's case upon the plaintiff's failure to appear to prosecute his action, but instead requests that the plaintiff be required to pay the defendant's attorney's fees for having to appear unnecessarily, and that the plaintiff be required to do so prior to being permitted to proceed with the action.
Upon review of the court's February 13, 2012 order sua sponte (on its own, without being so moved by a party), the court determines that the order insufficiently explained the procedural posture of this case, and in particular runs the risk that this case could be maintained as an open docket if the parties take no further action. Accordingly, the court determines that clarification is necessary, and thus re-issues its order on the defendant's Motion for Attorney's Fees, to Reschedule Hearing, and for Further Relief, ordering as follows:
1. Unless the plaintiff files a motion to reconsider this order within ten days of the Clerk's notice of issuance of this order or within the same ten days of the Clerk's notice of the issuance of this order files a motion showing cause why he failed to appear at the January 25, 2012 hearing and showing cause why he should not be [2] required to pay the defendant's attorney's fees arising out of appearing at that hearing, this case will be marked "dismissed without prejudice" and the file closed.
2. If the case is dismissed and the file closed as set out in paragraph 1 above, the defendant's request for attorney's fees will be moot. If the case is not dismissed as set out in paragraph 1 above, as a condition precedent to proceeding the plaintiff will be required to pay the defendant's attorneys fees, limited to those accrued for appearing at the hearing at which the plaintiff did not appear and for the defendant's subsequent related motion and related issues, in the amount of $572.50, unless the plaintiff shows cause as set out in paragraph 1 above why he should not be required to do so.
3. The defendant's requests for orders governing future Right to Know requests filed with the defendant by the plaintiff (Motion Requests C and D) are not ripe, and accordingly, without prejudice, no ruling will be issued on those requests.
So ordered.