Najam, J.
Statement of the Case
William I. Babchuk, M.D., P.C. d/b/a Babchuk Imaging, P.C. and William I. Babchuck (collectively “Babchuck”) appeal the trial court’s order dismissing Babchuk’s complaint against Indiana University Health Tipton Hospital, Inc., d/b/a Indiana University Health Tipton Hospital (“the Hospital”) for failure to prosecute under Trial Rule 41(E). Babchuk presents a single issue for our review, namely, whether the trial court abused its discretion when it dismissed this action. We reverse and remand for further proceedings.
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Here, after an approximate eighteen-month period of inactivity, on May 29, 2014, Babchuk filed his motion to stay or, in the alternative, for setting of scheduling conference. That same day, the Hospital filed its motion to dismiss for failure to prosecute. No Indiana case has addressed whether a Trial Rule 41(E) motion filed the same day that a plaintiff resumes prosecution of its case is timely. But, as our supreme court held in McClaine, it is the defendant’s burden to timely file a Trial Rule 41(E) motion to dismiss, and the motion must be filed before the plaintiff resumes prosecution. Id.; see also Baker Mach., 883 N.E.2d at 822 (citing McClaine). Accordingly, we hold that the Hospital’s motion to dismiss, which was not filed before Babchuk resumed prosecution of his case, was not timely. [Footnote omitted.] See McClaine, 300 N.E.2d at 344.
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Babchuk not only requested a stay pending his motion to amend his complaint with the federal court, but he requested, in the alternative, a scheduling conference “to establish discovery and other deadlines in this matter.” Appellants’ App. at 13. Our research reveals no Indiana precedent squarely addressing what constitutes diligent prosecution under Trial Rule 41(E). But a request for a scheduling conference indicates a party’s intent to move forward with litigation. And we hold that where, as here, a plaintiff requests a scheduling conference, even in the alternative to a stay, that is sufficient to constitute resumption of prosecution for purposes of Trial Rule 41(E).
In sum, while the trial court would have had discretion to dismiss Babchuk’s case for failure to prosecute had a timely motion been filed, the Hospital did not file its motion to dismiss before Babchuk had resumed prosecution of his case. Thus, we hold that the Hospital’s Trial Rule 41(E) motion was untimely and that trial court abused its discretion when it dismissed Babchuk’s complaint.
Reversed and remanded for further proceedings.
Baker, J., and Friedlander, J., concur.