Hensarling v. Holly
| Docket Number: | 2003-CA-00096-COA Linked Case(s): 2003-CA-00096-COA ; 2003-CT-00096-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 06-05-2007 Opinion Author: CHANDLER, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Medical negligence - Failure to prosecute - Dismissal with prejudice - M.R.C.P. 41(b) - Clear record of delay - Service of process - M.R.C.P. 4 - Lesser sanctions - Notice Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS AND CARLTON, JJ. Non Participating Judge(s): BARNES, J. Procedural History: Dismissal Nature of the Case: Negligence |
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| Trial Court: |
Date of Trial Judgment: 11-12-2002 Appealed from: Hinds County Circuit Court Judge: Tomie Green Disposition: CASE DISMISSED SUA SPONTE Case Number: 251-98-933 CIV |
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| Party Name: | Attorney Name: | |||
| Appellant: | JAMES K. HENSARLING, M.D. |
JOEL W. HOWELL |
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| Appellee: | SANDRA HOLLY, M.D. | SAMUEL O. MORRIS |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Medical negligence - Failure to prosecute - Dismissal with prejudice - M.R.C.P. 41(b) - Clear record of delay - Service of process - M.R.C.P. 4 - Lesser sanctions - Notice |
| Summary of the Facts: | Dr. James Hensarling filed a complaint against Dr. Sandra Holly, Dr. Ed Burchak, Baptist Behavioral Health Services and the Mississippi Baptist Medical Center, Inc., alleging damages for medical negligence that arose out of a single psychiatric evaluation with Holly at Baptist Behavioral Health Services. Burchak, Mississippi Baptist Medical Center and Baptist Behavioral Health Services were personally served with process through their personal representatives. Holly was not served with process until after the 120-day service of process time limit had lapsed. The statute of limitations began to run again and lapsed before process was served on Holly. No further action occurred in the case until over three years later, when Hensarling moved to substitute Joel Howell, III, as his counsel. The court denied Hensarling’s motion to substitute counsel and dismissed the case sua sponte based on the failure to prosecute. Hensarling appeals. |
| Summary of Opinion Analysis: | Hensarling argues that the court abused its discretion in dismissing his case with prejudice because there was no egregious or contumacious conduct that would require this drastic penalty and by not considering lesser alternatives to dismissal. Pursuant to M.R.C.P. 41(b), a court may dismiss a plaintiff’s claims for want of prosecution, which is a penalty for dilatoriness. Unless otherwise specified in its order, a dismissal under Rule 41(b) is an adjudication on the merits of the case and is with prejudice. However, past Mississippi practice has tempered this harsh result by allowing dismissed cases to be reinstituted except in extreme situations. Rule 41(b) dismissals with prejudice will be affirmed only upon a showing of a clear record of delay or contumacious conduct by the plaintiff, and where lesser sanctions would not serve the best interests of justice. Several factors identified as aggravating factors include the extent to which the plaintiff, as distinguished from his 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. The record demonstrates that Hensarling has been dilatory in the prosecution of his case. Had Hensarling been diligent in his attempts to serve Holly as soon as the 120 days began to run, then he may not have found himself in the unfortunate situation of being unable to locate Holly within the required time. Moreover, several options for service of process exist under M.R.C.P. 4. Hensarling could have employed the use of other types of service of process in the event that personal service of process failed. When Holly was finally served, both the time for service of process and statute of limitations had lapsed. The proofs of service of process were not filed with the court until after the court had dismissed the case. No action occurred in this case until Hensarling submitted a motion to substitute counsel more than four years after he initially filed the case. Thus, there is a clear record of delay. The record does not indicate whether the lower court specifically considered lesser sanctions. However, the record is sufficient to show that lesser sanctions would not have served the best interest of justice. Almost nine years have passed since the initial complaint was filed. The passage of time in this case may have altered the physical evidence available. There is no evidence to support an argument that the case would be prosecuted any differently if it were reinstated. Thus, dismissal of this case with prejudice was not an abuse of discretion. Hensarling also argues that the court, before considering dismissal, did not provide notice to him as required under M.R.C.P. 4(h). The notice provided to Hensarling was in the form of the order of dismissal. Rule 4(h) does not state that notice be given to Hensarling prior to the court’s consideration of the dismissal of the case, only that the court notify Hensarling of the dismissal itself. Moreover, the burden is on the plaintiff to show good cause as to why the service was not made within the 120 days. Hensarling attempted to demonstrate good cause only after the court had dismissed his case. |
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