271 So. 3d 602
Miss. Ct. App.2018Background
- Glass sued the City of Gulfport in Harrison County Circuit Court for negligence related to drainage; the City removed to federal court, which dismissed federal claims and remanded state claims on July 7, 2015.
- The City filed a motion to dismiss the remaining state claims on July 14, 2015; Glass moved for an extra ten days to respond but never set a hearing or filed a response within that time.
- No record activity by Glass occurred for roughly 550 days after July 2015.
- On February 1, 2017 the circuit clerk mailed the Rule 41(d) notice for dismissal for want of prosecution; Glass filed a brief response two days later asserting she wished to proceed and referencing the pending City motion.
- The circuit court found Glass neither took an "action of record" nor showed good cause for the delay, and dismissed the case without prejudice under M.R.C.P. 41(d); Glass appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Glass's February 3 response constituted an "action of record" under Rule 41(d) | The response was a pleading/a motion requesting discovery and thus an action of record | The response was only a conclusory filing that did not qualify as a pleading or move the case toward judgment | Court held the response was not an "action of record" and did not advance the case to judgment |
| Whether Glass showed "good cause" to avoid dismissal under Rule 41(d) | Glass asserted she wished to proceed and noted a pending City motion as explanation | The City argued Glass made no showing excusing her 550+ day inactivity and took no discovery or steps to advance the case | Court held Glass failed to show good cause for the prolonged inactivity |
| Whether dismissal under Rule 41(d) was an abuse of discretion | Glass argued dismissal was improper given her asserted intent to proceed | City maintained dismissal was proper under Rule 41(d) because of no action of record or good cause | Court found no abuse of discretion and affirmed dismissal |
| Proper remedy and effect of dismissal | Glass implicitly sought continued docketing rather than dismissal | City sought dismissal without prejudice under the rule | Court dismissed without prejudice per Rule 41(d) and affirmed on appeal |
Key Cases Cited
- Cucos Inc. v. McDaniel, 938 So. 2d 238 (Miss. 2006) (courts may dismiss for want of prosecution as an exercise of inherent docket-control power)
- Guidry v. Pine Hill Country Club Inc. of Calhoun Cty., 858 So. 2d 196 (Miss. Ct. App. 2003) (Rule 41(d) dismissal is a penalty for dilatoriness; filings must move the case toward judgment)
- Cascio v. Alfa Mut. Ins. Co., 164 So. 3d 452 (Miss. Ct. App. 2013) (burden on plaintiff to take action of record or show good cause to avoid dismissal)
- Pinson v. Grimes, 42 So. 3d 650 (Miss. Ct. App. 2010) (for case to remain, plaintiff must take action of record or show good cause)