374 So.3d 1270
Miss. Ct. App.2023Background
- Plaintiff Gary P. Scott sued UnitedHealthcare of Mississippi on Nov. 11, 2017 alleging unpaid benefits; service was proved in Feb. 2018.
- No significant docket activity until the clerk’s first Rule 41(d) notice (May 17, 2019); Scott then filed a Rule 16 scheduling conference / trial-setting motion (June 19, 2019).
- A notice of service of discovery appears Dec. 12, 2019, then the case remained dormant.
- COVID-19 emergency and a series of Mississippi Supreme Court Emergency Administrative Orders were issued beginning March 2020; courts were directed to remain open and judges retained docket control.
- Clerk issued a second Rule 41(d) notice (June 14, 2022); Scott filed a motion to leave the case on the docket and an online trial-date request (July 17, 2022).
- The circuit court dismissed the case (July 25, 2022) for failure to prosecute under M.R.C.P. 41(d)(1) and its inherent docket-control power; denial of reconsideration was affirmed on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Scott’s July 17, 2022 motion and online trial request constituted an “action of record” under Rule 41(d)(1) | Scott: the filed motion plus online trial request advanced the case and therefore prevented dismissal | UHC: those filings were merely requests and did not constitute pleadings, discovery, or deposition notices—thus not actions of record | Court: not actions of record; mere requests or reactionary filings do not advance the case toward judgment, so Rule 41 dismissal proper |
| Whether COVID-19 pandemic and related court conditions established “good cause” to avoid dismissal | Scott: pandemic conditions and unwillingness to try masked jury justified inactivity and excused delay | UHC: plaintiff failed to notify court or seek relief earlier; courts remained accessible under EAOs; no timely showing of good cause | Court: pandemic did not excuse delay; plaintiff failed to timely raise COVID concerns or provide affidavit/evidence; no good cause shown |
| Whether dismissal was an abuse of discretion and whether lesser sanctions were required | Scott: no contumacious conduct, pending trial request, and pandemic made dismissal harsh; lesser sanctions should have been used | UHC: years of inactivity, reactionary filings after two clerk notices, and prior warning make dismissal appropriate | Court: no abuse of discretion; clear record of delay and prior warning; lesser sanctions would not serve justice; dismissal (without prejudice) affirmed |
Key Cases Cited
- Illinois Central R.R. Co. v. Moore, 994 So. 2d 723 (Miss. 2008) (letters or filings that only ask ‘don’t dismiss’ are not actions of record under Rule 41(d))
- Glass v. City of Gulfport, 271 So. 3d 602 (Miss. Ct. App. 2018) (reactive filings and passive inaction do not constitute an action of record)
- Leasy v. SW Gaming LLC, 335 So. 3d 555 (Miss. 2022) (courts have inherent power to dismiss for failure to prosecute to control docket)
- Holder v. Orange Grove Med. Specialties P.A., 54 So. 3d 192 (Miss. 2010) (delay alone can warrant dismissal; lesser sanctions not always required)
- Hillman v. Weatherly, 14 So. 3d 721 (Miss. 2009) (multiple, reactionary delays support finding of clear record of delay)
- Watson v. Lillard, 493 So. 2d 1277 (Miss. 1986) (dismissal for failure to prosecute is inherent court power and may be exercised sua sponte)
- Cucos Inc. v. McDaniel, 938 So. 2d 238 (Miss. 2006) (Rule 41 dismissal principles and what constitutes actions of record)
- Hasty v. Namihira, 986 So. 2d 1036 (Miss. Ct. App. 2008) (first Rule 41 notice can operate as lesser sanction/warning; continued inactivity supports dismissal)