A Stale Case Dismissal - A Trap for the Unwary Lawyer

By:  Robert A. Biggs, III

Rule 41(d) of the Mississippi Rules of Civil Procedure can become a trap for the lawyer who fails to timely pursue the prosecution of his or her client’s case.  Rule 41(d) provides, in relevant part, that:

  1. Notice.  In all civil actions wherein there has been no action of record during the preceding twelve months, the clerk of such court shall mail notice to the attorneys of record that such case will be dismissed by the court for want of prosecution unless within thirty days of said mailing, action of record is taken or an application in writing is made to the court and good cause shown as to why it should be continued as a pending case.  If action of record is not taken or good cause is not shown, the court shall dismiss each such case without prejudice.  The cost of filing such order of dismissal with the clerk shall not be assessed against either party.
  2. Mailing Notice.  The notice shall be mailed in every eligible case not later than thirty days before June 15 and December 15 of each year, and all such cases shall be presented to the court by the clerk for action thereon on or before June 30 and December 31 of each year. 

M.R.C.P. 41(d).  The relief afforded by the rule was born out of the public policy for a timely resolution of conflicts through a procedure for the routine clearance of a congested docket.  

The Uniform Rules of Circuit Court, specifically Rule 4.03, provides that discovery "must be completed within 90 days following the filing by the applicable defendant."  Some litigants enter into an early pre-trial scheduling order which can supersede the strict mandate of this rule.  On the other hand, litigants often allow a case to marinate well beyond the 90 day period for discovery.  Oftentimes this leads to a situation where no action is taken for a significant amount of time which results in the filing of a clerk’s motion to dismiss pursuant to Rule 41(d).

If a lawyer does not appropriately respond within 30 days following receipt of the clerk’s notice, even though the rule states that the case is dismissed without prejudice, the consequences can be dire.  If the statute of limitations has run from the time of the original filing of the case, the litigants may have no further ability to refile the case without suffering the probability of a successful 12(b) Motion to Dismiss grounded on the running  of the statute of limitations.   Knight v. Knight, 85 So. 3d 832 (Miss. 2012).

On November 13, 2018, the Mississippi Court of Appeals reiterated the importance of diligently pursuing a hearing and resolution of all motions when it decided the case of Glass v. City of Gulfport, 2017-CA-00510-COA.  After the federal court dismissed Glass’s federal claims, the case was remanded back to circuit court and the plaintiff was faced with a motion to dismiss all remaining claims by the City of Gulfport ("City").  Ten days later, Glass filed a "Motion for Extra Ten Days" to respond to the City’s motion to dismiss.  Glass never set her motion for a hearing and failed to respond within the ten extra days that she requested. 

550 days later, the circuit clerk filed a clerk’s motion to dismiss for want of prosecution pursuant to Rule 41(d).  Glass responded to the clerk’s motion asserting there was a pending motion to dismiss by the City, she wished to conduct discovery in the matter, and that she showed good cause as to why this case should remain on the court’s active docket. To the contrary, the circuit court found that good cause had not been shown and dismissed Glass’s complaint for want of prosecution. 

On appeal, Glass first argued that her response to the clerk’s motion was a "pleading" as well as a "written motion requesting discovery."  The court turned to Rule 7(a) which defines which filings constitute a "pleading" as:

[A] complaint and an answer; a reply to a counterclaim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a third-party complaint, if a person who is not an original party is summoned under the provisions of Rule 14; and a third-party answer, if a third-party complaint is served.  No other pleading shall be allowed, except that the court may order a reply to an answer or a third-party answer.

M.R.C.P. 7(a).

Based on Rule 7(a), the court held that Glass’s response, although in writing and filed of record, was not a "pleading" as defined by the Mississippi Rules of Civil Procedure.  Specifically, Glass’s response was not in reply to the City’s earlier motion to dismiss and sought no action from the City or relief from the circuit court.  Glass then argued that her explanation to the court that the City’s motion had not yet been ruled upon somehow advanced the case to judgment and constituted an action of record.  The appellate court disagreed and held that Glass failed to show that she had taken any steps to bring either her pending motion or the City’s pending motion to dismiss to the circuit court’s attention.  Quite simply, the court held that "Glass cannot sit by idly for over 550 days and then rely on a pending motion, of which she was aware, to prevent dismissal under Rule 41(d)."  

While it seems as though many lawyers would not let a pending motion fester for over a year and a half, the court’s ruling does provide an express instruction to all litigants to diligently pursue their cases or suffer the consequences.  When any motion is filed, even one as simple as requesting an extension of time, it is the filing party’s responsibility to set the motion for hearing and diligently pursue resolution.  One cannot, as the court clearly explained, sit back and expect a pending motion to save them from a clerk’s motion to dismiss once noticed.