WHEN RULE 41(D) COMES KNOCKING AT YOUR DOOR
September 8, 2010 § 11 Comments
Rule 41(d), MRCP, is the familiar rule by which the Chancery Clerk is authorized to send out a notice to all counsel and self-represented parties in cases ” … wherein there has been no action of record during the preceding twelve months …” that the case will be dismissed for want of prosecution. The rule requires the clerk to dismiss the action unless within thirty days of the notice, ” … action of record is taken or an application in writing is made to the court and good cause is shown why it should be continued as a pending case.”
You have received such a notice, and, galvanized into action, you toss it on your paralegal’s desk and say, “Here, take care of this,” as you saunter out the door trying not to be late for your tee time. The paralegal scours the files and finds that your usual response is to file something called “Notice to Keep Case on the Active Docket,” and she tosses a copy of it on the secretary’s desk and says, “Here, do me one of these,” and returns to her office to continue whittling away at a four-foot-tall mound of discovery. In due course, the secretary produces said pleading, you sign it, the paralegal files it, and everything is fine. Until the next week, when you find your case was dismissed despite your efforts. What went wrong?
In the case of Illinois Central Railroad Co. v. Moore, 994 So.2d 723, 728 (Miss. 2008), the Mississippi Supreme Court held that a Circuit Judge should have dismissed the plaintiff’s suit after he had received Rule 41(d) notice, and his attorney filed nothing more than letters with the court requesting that it not be dismissed. The court reasoned that Rule 41(d) requires that some procedural action that would have the effect of moving the case forward be filed, or that a proper motion under the rules be filed and noticed, the motion showing good cause why the action should not be dismiised and asking the court to rule affirmatively that it should not be dismissed.
There was evidence of severe dilatoriness on the part of plaintiff’s counsel in the ICC case. The appellate decision, however, did not turn on his want of action, but only found it to be an aggravating factor. The court’s holding turned on counsel’s non-compliance with the rules, and the result was dismissal of the lawsuit. Although dismissal under 41(d) is without prejudice, the dismissal in ICC was fatal due to the statute of limitations.
The Supreme Court decision noted that there has been a relaxed attitude about responses to 41(d) notices, but stated that it would not follow the same path. ICC now stands for the proposition that if you skirt by the rule and succeed in having your action kept on the active docket, you will likely fail if the other side appeals.
If you want to keep an action from being dismissed under Rule 41(d), simply follow the rule and either: (1) Take some action of record, such as serving discovery, or filing a legitimate motion to advance the case; or (2) File a motion with the court asking that it not be dismissed, stating good cause to support your position, and notice the motion for hearing before the thirty days expires. Anything short of either action could result in a favorable ruling by a more relaxed trial judge, but will leave you vulnerable on appeal.
Caveat: Remember that Uniform Chancery Court Rule 1.10 requires that discovery must be completed within 90 days of service of an answer, unless extended by the court. It is unlikely that this judge would have allowed either party an extension that would cause a case to be pending as long as a year. It would be difficult to convince a judge that propounding discovery after the discovery deadline has expired would be an action of record that would have the effect of moving the case forward.
Comment: The consequences of Rule 41(d) to a cause of action are usually not as dire in Chancery Court as they are in Circuit. Statutes of limitation are not as often a concern in Chancery. For clients on an unequal financial footing, however, a 41(d) dismissal can cause expenses and fees to increase dramatically, and may spell the end of meritorious litigation. It may also require you to represent a client through an appeal that you were not paid to handle, just to avoid some other action by your client.
The Better Chancery Practice Blog 
[…] you need to file something of record that will have the effect of advancing the case on the docket. A previous post about what action you need to take is at this link. A letter to the clerk will not do the job. Ignoring it will not make it go away. Some chancellors […]
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Hello. “when rule 41(d) comes knocking at your door” is the absolute best discussion of the apparent former routine practice of granting rule 41(d) extentions by the trial courts vs. the “newer” requirements set forth by Illinois RR co v. Moore is superb. To your knowledge has your article been cited regarding this change in policy? I would like to use it in my current pro se defense of my current 41(d) clerk’s dismissal for want of prosecution that I am in the process of defending the dismissal against a an attempt to set aside the dismissal. Just wanted to pass on my appreciation for a well written article spelling out what is now required to survive a rule 41(d) dismissal, or not. Thanks again
IRR v. Moore and any other similar authority is what needs to be cited. As I state in my disclaimers, whatever I post is only my opinion. It’s not authoritative. Remember: I am only a state trial court judge, as is the judge who will make final decisions on MRCP 41(d). I don’t appreciate a lawyer saying “We do it differently in our district” because I do it the way I think it needs to be done in my district and I am not persuaded to change just because another trial judge sees it another way. So citing atrial judge as authority can be counterproductive. Lawyers cite binding authority such as statutes, case law and rules to support their positions.
Thanks for your reply. Yes, I am planning on citing irrc v. moore, but am looking for more citings. Unfortunately as a pro se, without access to westlaw, I have pretty much relied on google scholar, but would hoping for westlaw soon. Your site is very informative, and yes I agree, local rules can be an issue, but on rule 41(d), I am thrilled that irrc v. moore makes my particular case to a T. So thanks again and if you like, i will let you know how I do at my first “live” hearing at the Circuit Court level, and quite possibly defending my dismissal before the Supreme Court of MS. after an interlocutory appeal from the loser.
Hello again. I wanted to let you know that I have really benefited from your frank assessments of issues confronted by litigants in the MS Courts, Appearing pro se means traditional search avenues are not readily available thus access to your discussions and opinions have been helpful I appreciate your work. My own case is “Before the Court” as Ya’ll say, so I hope to have an opinion soon. .Thanks. Bill
[…] the court’s ruling in Illinois Central railroad Co. v. Moore, about which I previously posted here. It would appear that if your case on appeal turns on a procedural issue, you will have the […]