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.

Directed Verdict or Involuntary Dismissal?

May 8, 2019 § Leave a comment

“Juries render verdicts; judges render judgments.” — Lawrence Primeaux

You can quote me on that.

It happens every now and then that someone moves for a directed verdict in a chancery court bench trial. That can create a problem because the standard for directing a verdict is considerably different from that for an involuntary dismissal.

The distinction was at issue in the COA’s case of Vermillion v. Vermillion, decided March 19, 2019. In that case, the chancellor granted the defendants’ (Robyn’s and Douglas’s) motion for a directed verdict and dismissed the plaintiff’s (Angela’s) pleading seeking grandparent visitation rights. Judge Carlton wrote for the court:

¶10. Angela argues that the chancellor erred in granting Robyn and Douglas’s motion for a directed verdict. Angela asserts that because the case was tried without a jury, Robyn and Douglas should have filed a motion for involuntary dismissal, rather than a motion for a directed verdict. Angela also argues that the chancellor applied an erroneous interpretation of Mississippi Code Annotated section 93-16-3(2)–(3) (Rev. 2013); specifically, whether Angela established a viable relationship with Chella Rose.

¶11. We first address Angela’s procedural issue. Mississippi Rule of Civil Procedure 41(b), which governs involuntary dismissals, “applies in actions tried by the court without a jury, where the judge is also the fact-finder.” All Types Truck Sales Inc. v. Carter & Mullings Inc., 178 So. 3d 755, 758 (¶13) (Miss. Ct. App. 2012) (internal quotation marks omitted). “Mississippi Rule of Civil Procedure 50(a), which governs directed verdicts, applies to jury trials, where the judge is not the fact-finder.” Id. at (¶12) (emphasis omitted). We recognize that “the appropriate motion in a case tried without a jury is not a motion for directed verdict, but for involuntary dismissal . . . .” Gulfport-Biloxi Reg’l Airport Auth. v. Montclair Travel Agency Inc., 937 So. 2d 1000, 1004 (¶13) (Miss. Ct. App. 2006). In similar cases, rather than reversing a trial court’s judgment granting a directed verdict due to a procedural error, this Court has considered such appeals under the standard of review for a motion for involuntary dismissal. Id. at 1006 (¶18); Ladner v. Stone County, 938 So. 2d 270, 273 (¶¶9-10) (Miss. Ct. App. 2006). We will therefore review the judgment at issue before us under the standard of review for Rule 41(b) involuntary dismissals.

¶12. In applying this standard, we recognize that “[a]ppellate courts . . . employ a more deferential standard of review when considering involuntary dismissals [at a bench trial] than when reviewing grants of directed verdicts” at a jury trial. All Types Truck Sales, 178 So. 3d at 758 (¶13). Rule 41(b) involuntary dismissals are reviewed under a “substantial evidence/manifest-error standard,” rather than the de novo standard applied when reviewing directed verdicts. Id. “A judge should grant a motion for involuntary dismissal if, after viewing the evidence fairly, rather than in the light most favorable to the plaintiff, the judge would find for the defendant.” Id. (quoting Gulfport-Biloxi Reg’l Airport Auth., 937 So. 2d at 1004 (¶13)). “The court must deny a motion to dismiss only if the judge would be obliged to find for the plaintiff if the plaintiff’s evidence were all the evidence offered in the case.” Id.

The court went on to analyze the evidence and the judge’s ruling and found no error in the dismissal despite the wrong standard.

This case illustrates how you can hand your opponent a ground for appeal simply by using incorrect terminology. Save your directed verdicts for jury trials. That’s where they belong. Bench trials call for a motion for involuntary dismissal per MRCP 41(b) at the conclusion of the plaintiff’s case.

A previous post on this topic is here.

Directed Verdict vs. Involuntary Dismissal

February 2, 2016 § 1 Comment

After the plaintiff or petitioner has rested in a chancery court bench trial, the defendant may move to dismiss on the ground that the plaintiff or petitioner has proven no right to relief. That is an involuntary dismissal, pursuant to MRCP 41(b), commonly referred to as a “41(b) motion.”

In a jury trial, a party may move for a directed verdict at the close of the other party’s case. That is a motion for directed verdict per MRCP 50(a).

The two are entirely different creatures. A 41(b) motion has no place in a jury trial, and a motion for directed verdict has no place in a bench trial.

The distinction was noted in the recent COA case, Carlson v. Brabham, handed down January 19, 2016. Judge Griffis explained:

¶10. “In a non-jury trial, such as this case, the appropriate motion is not a motion for [a] directed verdict pursuant to Mississippi Rule of Civil Procedure 50; instead, the correct motion is a motion for [an] involuntary dismissal pursuant to Mississippi Rule of Civil Procedure 41(b).” Partlow v. McDonald, 877 So. 2d 414, 416 (¶7) (Miss. Ct. App. 2003) (citation omitted) (citing Buelow v. Glidewell, 757 So. 2d 216, 220 (¶12) (Miss. 2000)). In this case, Brabham filed a Rule 50 motion for a directed verdict, rather than a Rule 41(b) involuntary-dismissal motion.

¶11. The Mississippi Supreme Court has held that in situations such as this, an appellate court must:

[C]onsider th[e] appeal based on the correct standard of review, which under Rule 41(b) is different than the standard of review applicable to a motion for a directed verdict under Rule 50. In considering a motion for [an] involuntary dismissal under Rule 41(b), the trial court should consider the evidence fairly, as distinguished from in the light most favorable to the plaintiff, and the [trial court] should dismiss the case if it would find for the defendant. On appeal, [an appellate court] must apply the substantial evidence/manifest error standard to an appeal of a grant or denial of a motion to dismiss pursuant to [Rule 41(b)].

Id. at 416-17 (¶7) (internal quotations and citations omitted) (citing Miss. Real Estate Comm’n v. Geico Fin. Servs. Inc., 602 So. 2d 1155, 1156 n.1 (Miss. 1992)).

As I have pointed out here before, if you proceed under the wrong rule in chancery, you are inviting either of two unappetizing results: (a) the chancellor may overrule your motion because there is no such thing as directed verdict in a chancery bench trial; or (b) the chancellor may apply the wrong standard to the proof, and you could find yourself boomeranged back to chancery on a remand that you created by your own inattention to the distinction.



Directed Verdict vs. Involuntary Dismissal

December 3, 2014 § 4 Comments

Juries render verdicts. Judges in bench trials render judgments.

Thus, the proper motion after the plaintiff has rested in a jury trial is a motion for a directed verdict, per MRCP 50(a).

In a bench trial, which includes 99.9% of chancery matters, the proper motion is one for an involuntary dismissal, per MRCP 41(b), which states:

… After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court may then render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence …

In the case of SKL Investments v. Hardin and Torrence, handed down November 18, 2014, the COA said this:

¶12. “[T]he appropriate motion in a case tried without a jury is not a motion for [a] directed verdict, but involuntary dismissal, pursuant to Rule 41(b) of the Mississippi Rules of Civil Procedure.” Gulfport-Biloxi Reg’l Airport Auth. v. Montclair Travel Agency Inc., 937 So. 2d 1000, 1004 (¶13) (Miss. Ct. App. 2006). “When reviewing a dismissal under . . . Rule . . . 41(b), we will not overturn the decision of [the chancery court] if [its] findings are supported by substantial evidence unless [the chancery court] abused [its] discretion, was manifestly wrong, or applied an erroneous legal standard.” Jones v. Jones, 101 So. 3d 731, 732 (¶4) (Miss. Ct. App. 2012) (citation omitted).

We discussed the different standards to be applied by the court in each of the two rules in a previous post. The distinction is substantial.

Legal nerd that I am, it irks me when I read a decision of the appellate court referring to a R41(b) motion in chancery court as one for a directed verdict. There are no verdicts in chancery court except in the relatively rare event of a jury trial — which now occurs only when one is requested in a will contest, and when the chancellor impanels an advisory jury (assuming that can still be done under the MRCP).

Likewise, you could conceivably lead an unsuspecting chancellor in a bench trial into error by casting your motion as one for a directed verdict. When the chancellor applies the proper legal standard to that motion, she is automatically in error, since it does not apply in bench trials.

Terminology can make a difference.

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