Delay, Delay, Delay … Dismissal

May 12, 2020 § Leave a comment

After the chancellor dismissed her contempt case against her ex-husband, Damon Spears, for failure to prosecute, Rita Carter appealed.

In Carter v. Spears, handed down April 28, 2020, the COA affirmed. Judge Cory Wilson wrote for the unanimous court:

¶11. “For failure of the plaintiff to prosecute or to comply with [the Rules of Civil Procedure] or any order of court, a defendant may move for dismissal of an action or of any claim . . . .” Miss. R. Civ. P. 41(b). We consider “[w]hat constitutes a failure to prosecute . . . on a case-by-case basis.” Cox v. Cox, 976 So. 2d 869, 874 (¶14) (Miss. 2008). “The supreme court has provided considerations to be weighed in determining whether to affirm a Rule 41(b) dismissal with prejudice: ‘(1) whether there was a clear record of delay or contumacious conduct by the plaintiff; (2) whether lesser sanctions may have better served the interests of justice; and (3) the existence of other aggravating factors.’” Sullivan v. Maddox, 283 So. 3d 222, 234-35 (¶54) (Miss. Ct. App. 2019) (quoting Cox, 976 So. 2d at 874 (¶14)). “‘Delay alone may suffice’ for dismissal under Rule 41(b).” Holder, 54 So. 3d at 198 (¶20) (quoting Cox, 976 So. 2d at 875 (¶18)).

¶12. “We acknowledge that ‘[t]here is no set time limit on the prosecution of an action once it has been filed . . . .’” Sullivan, 283 So. 3d at 235 (¶55) (quoting Holder, 54 So. 3d at 197 (¶17)). “We also are mindful of the fact that dismissal with prejudice is an extreme and harsh sanction that deprives a litigant of the opportunity to pursue [her] claim, and any dismissals with prejudice are reserved for the most egregious cases.” Holder, 54 So. 3d at 197 (¶17) (internal quotation marks omitted) (quoting Hoffman v. Paracelsus Health Care Corp., 752 So. 2d 1030, 1034 (¶11) (Miss. 1999)). “However, if the record shows that a plaintiff has been guilty of dilatory or contumacious conduct, or has repeatedly disregarded the procedural directives of the court, such a dismissal is likely to be upheld.” Hensarling v. Holly, 972 So. 2d 716, 720 (¶8) (Miss. Ct. App. 2007). “[T]he cases in which [the supreme court] has affirmed the dismissal of a complaint for failure to prosecute often feature a substantial period of delay that clearly evinces the plaintiff’s prolonged failure to pursue [her] claims.” SW 98/99 LLC v. Pike County, 242 So. 3d 847, 854 (¶23) (Miss. 2018) (citing Manning v. King’s Daughters Med. Ctr., 138 So. 3d 109, 116 (¶21) (Miss. 2014) (affirming dismissal where plaintiff filed a complaint but then took no further action for two years, did not respond to discovery requests, and waited a year before responding to defendant’s motion to dismiss)).

¶13. Here, even discounting the lengthy procedural delays pre-dating her 2014 petition, [Fn 2] the record since Carter filed her most recent petition shows substantial periods of delay coupled with a disregard of deadlines set by both court orders and procedural rules. After Carter failed to prosecute her 2014 contempt petition for over a year, the chancery clerk filed a notice of dismissal in 2015. In response, Carter filed a perfunctory motion to set a trial date but then did not further pursue her claims for over another year. During that interval, she ignored deadlines imposed by both the discovery rules and the chancery court itself. As a result, the chancery clerk filed another notice of dismissal and motion to dismiss for want of prosecution in March 2017. A similar pattern of superficial activity by Carter ensued, until Spears filed his own motion to dismiss for failure to prosecute—the third such motion as to Carter’s 2014 petition—in May 2018.

[Fn 2] Measured from when Carter filed her March 7, 2011 petition, there were three lengthy periods of inactivity, the first lasting two years and three months, the second spanning one year and one month, and the third lasting one year and three months. In its order, the chancery court appeared to consider this aggregate four-year, seven-month delay in granting Spears’s motion to dismiss. But Carter’s 2011 petition was dismissed in July 2013, on the chancery clerk’s first notice of dismissal, such that the relevant yardstick for measuring delay in the instant appeal begins with Carter’s 2014 petition. Regardless, the procedural history before and since Carter’s 2014 petition substantiates a “clear record of delay or contumacious conduct by the plaintiff.” Sullivan, 283 So. 3d at 235 (¶54).

¶14. Carter took two years and five months to respond to discovery requests Spears propounded on October 9, 2015, and then only provided unverified and incomplete responses. Carter’s delay occurred in the face of the first of two motions to compel filed by Spears, court orders directing Carter to provide discovery responses, and the third notice of dismissal for want of prosecution from the chancery clerk. Carter’s “substantial . . . delay . . . clearly evince[d] the plaintiff’s prolonged failure to pursue [her] claims.” SW 98/99, 242 So. 3d at 854 (¶23). Our supreme court has made clear that “repeated failures to comply with discovery warrant dismissal with prejudice.” Holder, 54 So. 3d at 198 (¶21); see also Hillman v. Weatherly, 14 So. 3d 721, 727 (¶20) (Miss. 2009) (finding clear record of delay where plaintiff did not respond to discovery requests until both defendant and circuit clerk had filed motions to dismiss for want of prosecution). Based on the foregoing, we find no error in the chancery court’s finding that there was a “clear record of delay or contumacious conduct” on Carter’s part.

¶15. We likewise find no abuse of discretion in the chancery court’s determination that lesser sanctions would not better serve the interests of justice and that Carter’s pattern of dilatory conduct caused significant prejudice to Spears. “Lesser sanctions may include ‘fines, costs, or damages against plaintiff or [her] counsel, attorney disciplinary measures, conditional dismissal, dismissal without prejudice, and explicit warnings.’” Holder, 54 So. 3d at 200 (¶32) (quoting Days Inn, 720 So. 2d at 181-82 (¶17)) (internal quotation and citations omitted); but see Cox, 976 So. 2d at 876 (¶26) (finding “that lesser sanctions would not suffice” when “lesser sanctions could not cure the prejudice to [defendant] caused by the delay”). The presence of aggravating factors, while not required to justify dismissal under Rule 41(b), may strengthen the trial court’s decision to dismiss an action. Cox, 976 So. 2d at 876 (¶27). Such factors include “the extent to which the plaintiff, as distinguished from [her] counsel, was personally responsible for the delay, the degree of actual prejudice to the defendant, and whether the delay was the result of intentional conduct.” Days Inn, 720 So. 2d at 181 (¶13) (quoting Rogers v. Kroger Co., 669 F. 2d 317, 320 (5th Cir. 1982)).

¶16. Here, the chancery court weighed “any aggravating factors or prejudice to Spears,” finding that

[t]he passage of time for many of these expenses claimed by Carter is at least six (6) years, and in some instances there are expenses that occurred over thirteen (13) years ago. Whether these expenses were timely provided by Carter to Spears is an issue in this case, and there is an issue of whether either Spears or Carter can provide recollection of when these bills were actually submitted . . . . This prejudice caused by fading memories due to the passage of time can be presumed to support the dismissal of this action under Rule 41(b).

(Citing Holder, 54 So. 3d at 200 (¶30)). The chancery court also found that the total amount of time that passed when Carter took no activity to advance her claims is four (4) years and seven (7) months. Additionally, Carter’s responses to Spears’[s] discovery were not served until two (2) years and five (5) months after [the requests] were served. Carter filed no response to Spears’[s] motion [to dismiss], and provided no justification for these delays. The chancery court concluded that “[u]nder these circumstances . . . there is no lesser sanction that would serve the interests of justice other than dismissing Carter’s [p]etition.” As we concluded in Holder, “[t]oday’s case is not an isolated incident of one missed deadline or a short, delayed response.” 54 So. 3d at 200 (¶33). Accordingly, we find no abuse of
discretion in the chancery court’s findings or its ultimate dismissal of Carter’s claims under Rule 41(b).

It’s a never-ending source of bafflement to me how some cases drag out almost to infinity, seeming to proceed, if at all, at the pace of a sea slug crawling across the bottom of the ocean crossing from the beaches of California to the shores of Bali. Some, I am sure, are due to lack of cooperation by one or more parties, but some are attributable to the inattention or lack of interest by the attorney(s). One source of lost interest is when you charge a flat fee and get paid up front. Once the money is safely in your firm account, motivation wanes.


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