August 6, 2012 § Leave a comment

MRCP 41(b) says, “For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him.” Except for a few circumstances spelled out in the rule, such a dismissal operates as an adjudication on the merits, which means that it is with prejudice and res judicata.

In the COA case of Wing v. Wing, decided July 17, 2012, the court upheld a chancellor’s decision dismissing an action for failure to prosecute.

At the trial level, a conservatorship had been established for Loleta Wing in 2005, on petition of Todd and Tammy Kinney, grandchildren of Loleta. As part of their action, they sued Loleta’s son, Jimmy Wing, who was co-trustee and a co-beneficiary of a Wing family trust, for accounting, claiming he had abused his confidential relationship with Loleta. A couple of months later they dismissed the suit.

After Loleta died in November, 2007, Jimmy submitted an accounting to Todd and Tammy for the remaining trust assets. They responded with a suit in February, 2008, charging that Jimmy had used his confidential relationship with Loleta to persuade her to transfer assets to him, and that he improperly used the trust for his own benefit. They also sought an injunction, and after a hearing, the court, on February 28, 2008, froze all assets of the trust.

Jimmy filed responsive pleadings, and the parties entered into an agreed preliminary injunction. There ensued informal exchanges of information and an informal accounting by Jimmy, until December 21, 2010, when Jimmy filed a motion to dismiss for failure to prosecute. The chancellor dismissed the action pursuant to MRCP 41(b), and Todd and Tammy appealed.

Writing for the court, Judge Carlton said:

¶14. The record reflects substantial evidence of a clear record of inexcusable delay by Todd and Tammy. Before Jimmy filed his motion to dismiss on December 21, 2010, no action of record had taken place for almost an entire year. Todd and Tammy’s first action of record in practically a full year came only after Jimmy filed his motion to dismiss. The record supports the chancery court’s assessment that Todd and Tammy’s filing of the third motion to compel was clearly reactionary to Jimmy’s motion to dismiss, as they did not file the motion to compel until after Jimmy notified them of his intention to file the motion to dismiss. Precedent establishes that it is not what occurs after a plaintiff is made aware that his or her case may be dismissed for failure to prosecute that is dispositive of a motion to dismiss; instead, it is whether the case presents a clear record of delay due to a plaintiff’s failure to prosecute before the case actually is subject to dismissal. See M.R.C.P. 41(b). See Hillman v. Weatherly, 14 So. 3d 721, 728 (¶22) (Miss. 2009) (In affirming a circuit court’s dismissal of a complaint with prejudice for failure to prosecute, the supreme court held that the test for determining whether a plaintiff’s conduct is dilatory focuses “on the plaintiff’s conduct, not on the defendant’s efforts to prod a dilatory plaintiff into action.”). [Fn 7] Furthermore, we recognize that it was Todd and Tammy’s responsibility as the plaintiffs to prosecute their case, not the defendant’s nor the chancery court’s. See Cox, 976 So. 2d at 880 (¶50) (citing M.R.C.P. 41(b)). The chancery court, taking these considerations into account, found that Todd and Tammy’s dilatory conduct before Jimmy’s motion to dismiss was filed supported dismissal. We find that the record supports this conclusion. Thus, we conclude that the chancery court did not abuse its discretion in finding that a clear record of delay existed in this case.

   Fn 7. See also Holder v. Orange Grove 7 Med. Specialties, P.A., 54 So. 3d 192, 198 (¶22) (Miss. 2010) (“We also may consider whether the plaintiffs’ activity was reactionary to the defendants’ motion to dismiss, or whether the activity was an effort to proceed in the litigation.”).

The court considered whether the trial judge had abused his discretion, and whether lesser sanctions would have been appropriate, and rejected both arguments. The COA’s analysis of the factors applicable in deciding whether there has been a failure to prosecute is something you should take the time to read.

Many family law cases seem to get onto a side track and fall into inaction. When they involve the best interest of children it’s not likely that the trial court would consider dismissal, but, as Wing points out, there are lesser sanctions for failure to move your case forward that can impact your client’s and even your pocketbook, as well as your ability to be effective in representing your client.

I use scheduling orders in all contested cases to move things along, and I impose an expiration date on temporary orders as an incentive not to dawdle with divorces. I suppose that “for failure of the plaintiff to comply with … any order of the court …” such as a scheduling order, a plaintiff could jeopardize his or her case by inaction.

Wing is a case you need to read, not only to understand your own duty to move your cases forward, but also to see how you can use MRCP 41(b) as a defensive weapon. Remember, that dismissal is with prejudice, by the express terms of the rule.

While we’re talking about dismissals, remember that if you receive a clerk’s notice of dismissal for inactivity in excess of a year, per MRCP 41(d), you need to take substantive action immediately, or else your case will be dismissed. A letter to the clerk or a “Notice to Keep Case on Active Docket” or the like just won’t cut it.

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