SPANN, ET AL. v. HONEYWELL INTERNATIONAL, INC., ET AL.


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Docket Number: 2005-CA-02067-SCT

Supreme Court: Opinion Link
Opinion Date: 08-09-2007
Opinion Author: Lamar, J.
Holding: Affirmed

Additional Case Information: Topic: Personal injury - Dismissal without prejudice - M.R.C.P. 41(b) - Severance of claims
Judge(s) Concurring: Smith, C.J., Waller, P.J., Carlson and Dickinson, JJ.
Non Participating Judge(s): Randolph, J.
Dissenting Author : Easley and Graves, JJ.
Concurs in Result Only: Diaz, P.J.
Procedural History: Dismissal
Nature of the Case: CIVIL - PERSONAL INJURY

Trial Court: Date of Trial Judgment: 09-30-2005
Appealed from: Noxubee County Circuit Court
Judge: James T. Kitchens, Jr.
Disposition: Appeal from the Circuit Court of Noxubee County, where the claims of numerous plaintiffs were dismissed without prejudice pursuant to Mississippi Rule of Civil Procedure 41(b) for failure to comply with a court order directing the plaintiffs to perfect transfer of the cases to their respective proper venues.
Case Number: 2002-453
  Consolidated: 2005-CA-02064-SCT 2005-CA-02065-SCT 2005-CA-02066-SCT 2005-CA-02068-SCT

  Party Name: Attorney Name:  
Appellant: WILLIE SPANN, ET AL.




J. Richard Davis, Jr., Wilbur O. Colum



 

Appellee: HONEYWELL INTERNATIONAL, INC., ET AL. Edward J. Currie, F. Keith Ball, Rocky W. Eaton, Lawrence M. Coco, III, T. Hunt Cole, Jr.  

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Topic: Personal injury - Dismissal without prejudice - M.R.C.P. 41(b) - Severance of claims

Summary of the Facts: Five separate actions were filed by five separate groups of plaintiffs against multiple defendants in the Circuit Court of Noxubee County. All of these actions alleged damages due to exposure to asbestos-containing products. In each of these five cases, defendants made a Motion for More Definite Statement, to Sever and Transfer, and for Other Specific and General Relief. The trial court required the plaintiffs’ attorneys to provide the defense with more specific factual information about each of the plaintiffs’ claims so the court could determine whether venue was proper in Noxubee County. Following responses from the plaintiffs, the court entered an Order of Severance, Transfer, and/or Dismissal in each of the five cases, directing severance of each claim into an individual cause of action; transfer of each plaintiff’s claim to a proper venue in Mississippi, or if no proper venue in Mississippi existed, dismissal of those claims without prejudice; dismissal without prejudice of the claims of non-resident plaintiffs who had not been exposed in Mississippi and who were not alleging a claim against a Mississippi defendant; perfection of each transfer to a proper venue in Mississippi within thirty days of the date of the order; and as a means of initiating transfer, filing of a civil action cover sheet and an amended complaint by each plaintiff in the transferee county. When the plaintiffs failed to perfect transfer of the remaining fifty-seven cases to proper venues in Mississippi within the thirty-day period, plaintiffs’ counsel specifically requested that the deadline for the transfer of these cases to be perfected be extended. The trial judge agreed and orally granted the plaintiffs an extension of time. After the plaintiffs had again failed to perfect the transfers and to file amended complaints and civil action cover sheets in the transferee courts, the trial court dismissed without prejudice the cases in which the plaintiffs had failed to perfect transfer. Upon a request by plaintiffs’ counsel that an evidentiary hearing be held on the transfer issue, the circuit clerk testified that it was the responsibility of his office to actually copy and mail the files to the transferee courts and that the records were very large and he had insufficient time to get them done. The trial court then entered an order pursuant to M.R.C.P. 41(b) dismissing without prejudice the cases of fifty-seven plaintiffs whose case files had not been transferred from Noxubee County to their proper venues. The plaintiffs appeal.

Summary of Opinion Analysis: The plaintiffs argue that the circuit court’s dismissal of their cases without prejudice was improper. This case presented just such a problem as the one considered in Justice Dickinson’s example in the recent case of Canadian National/Illinois Central Railroad v. Smith, 926 So. 2d 839 (Miss. 2006). While the events of this case occurred prior to the decision in Canadian National, the trial court’s actions were perfectly in accord with the rule prescribed therein. The trial court severed each of the improperly-joined plaintiffs and determined whether there existed a proper venue in Mississippi for the severed claims. The claims which were properly brought in Noxubee County were continued in Noxubee County. Those severed cases which were not properly in Noxubee County were dismissed without prejudice, affording those plaintiffs an opportunity to refile in a proper venue. The fact that these claims were dismissed pursuant to M.R.C.P. 41(b) is of no consequence.


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