Holder v. Orange Grove Med. Specialties, P.A.
| Docket Number: | 2008-CT-01442-SCT Linked Case(s): 2008-CA-01442-COA ; 2008-CA-01442-COA ; 2008-CT-01442-SCT ; 2008-CT-01442-SCT |
|
| Supreme Court: | Opinion Link Opinion Date: 12-09-2010 Opinion Author: Presiding Justice Carlson Holding: Court of Appeals reversed; Circuit Court reinstated and affirmed. |
|
| Additional Case Information: |
Topic: Medical malpractice - Dismissal for failure to prosecute - M.R.C.P. 41(b) - M.R.C.P. 33(b)(3) - URCCC 4.04(A) - URCCC 4.03(2) Judge(s) Concurring: Waller, C.J., Dickinson, Randolph and Lamar, JJ. Judge(s) Concurring Separately: Pierce, J., Specially Concurs With Separate Written Opinion Joined by Waller, C.J., and Lamar, J.; Carlson, P.J., Dickinson and Randolph, JJ., Join In Part. Dissenting Author : Kitchens, J., Dissents With Separate Written Opinion Dissent Joined By : Graves, P.J., and Chandler, J. Procedural History: Dismissal Nature of the Case: CIVIL - MEDICAL MALPRACTICE Writ of Certiorari: yes Appealed from Court of Appeals |
|
| Trial Court: |
Date of Trial Judgment: 07-29-2008 Appealed from: Harrison County Circuit Court Judge: Jerry O. Terry, Sr. Disposition: Marguerite Holder and her husband, Herbert Holder (the Holders), filed a medicalnegligence suit against Orange Grove Medical Specialties, P.A.; Boyd Benefield, M.D.; and John Does One through Five (Orange Grove) on December 7, 2006, in the Circuit Court for the First Judicial District of Harrison County. On July 29, 2008, almost one year and eight months later, the circuit judge dismissed the suit with prejudice, as to each defendant, for want of prosecution in accordance with Mississippi Rule of Civil Procedure 41(b). The Holders appealed the dismissal, and the Court of Appeals reversed the circuit court, holding that the circuit judge should have imposed a lesser sanction. Holder v. Orange Grove Med. Specialties, P.A., ___ So. 3d ___, 2010 WL 11267 (Miss. Ct. App. Jan. 5, 2010), reh’g denied (May 18, 2010). Case Number: A-2401-06-456 |
|
| Note: | This opinion reverses a previous opinion by the Court of Appeals. See the original COA opinion at: http://www.mssc.state.ms.us/Images/Opinions/CO59616.pdf | |
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Marguerite B. Holder and Herbert Holder |
L. CHRISTOPHER BREARD |
||
| Appellee: | Orange Grove Medical Specialties, P.A., and Boyd Benefield, M.D. | STEPHEN GILES PERESICH, JOHANNA MALBROUGH McMULLAN, BRIAN DOUGLAS MAYO |
|
|
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. |
|
| Topic: | Medical malpractice - Dismissal for failure to prosecute - M.R.C.P. 41(b) - M.R.C.P. 33(b)(3) - URCCC 4.04(A) - URCCC 4.03(2) |
| Summary of the Facts: | Marguerite Holder and her husband, Herbert Holder, filed a medical negligence suit against Orange Grove Medical Specialties, P.A.; Boyd Benefield, M.D.; and John Does One through Five. Almost one year and eight months later, the circuit judge dismissed the suit with prejudice, as to each defendant, for want of prosecution. The Holders appealed, and the Court of Appeals reversed. The Supreme Court granted certiorari. |
| Summary of Opinion Analysis: | M.R.C.P. 41(b) permits defendants to move for dismissal of any action for failure of the plaintiff to prosecute. There is no set time limit on the prosecution of an action once it has been filed, and dismissal for failure to prosecute will be upheld only where the record shows the plaintiff has been guilty of dilatory or contumacious conduct. The court must consider whether lesser sanctions would suffice. Additional “aggravating factors” or actual prejudice may bolster the case for dismissal, but are not requirements. The Court of Appeals correctly found a clear record of delay. The Holders did not submit their answers to interrogatories until 435 days past the deadline set by M.R.C.P. 33(b)(3); the Holders did not begin their own discovery until almost a year past the deadline set by URCCC 4.04(A); and the Holders failed to reply to the defendants’ motion to dismiss within the ten-day time limit in URCCC 4.03(2). Delay alone may suffice for a dismissal under Rule 41(b). Factors other than delay are not required. The standard is whether there is a clear record of delay or contumacious conduct by the plaintiff. Repeated failures to comply with discovery requests warrant dismissal with prejudice. In the present case, counsel for the defendants sent his first set of interrogatories to plaintiffs’ counsel on February 12, 2007. Defendants’ counsel followed up three times with plaintiffs’ counsel, inquiring when the discovery requests would be completed. All of these inquiries were ignored by plaintiffs’ counsel. Counsel for the plaintiffs did not respond to the defendants’ interrogatories and their three subsequent follow up inquires until thirteen days after the defendants had filed their motion to dismiss and 435 days past the deadline set by M.R.C.P. 33(b)(3). There has been no showing of dilatory conduct by the defendants. Plaintiffs’ counsel failed to move for a continuance to allow for additional time to complete the defendants’ discovery requests. This case shows a clear record of delay based on the showing of inexcusable delay. When there is a clear record of delay, no showing of contumacious conduct is necessary. While the Court of Appeals’ finding of delay is correct, the court erred when it continued in its analysis and found that the defendants were not prejudiced by the delay and that the absence of an aggravating factor warrants reversal of the trial court’s judgment. Delay alone may suffice for a dismissal pursuant to Rule 41(b). Actual prejudice is not a requirement for dismissal under Rule 41(b), however prejudice may be presumed from unreasonable delay. The issue of whether actual prejudice did exist in this case is of no moment, because the result would be the same. The case had been stale for more than a year, and the defendants had failed to meet multiple discovery and procedural deadlines. This dilatory conduct resulted in an unreasonable delay, and prejudice may be presumed from unreasonable delay. The presence of an aggravating factor may serve to bolster or strengthen the case for a dismissal, but is not a requirement. In the present case, the trial judge asked plaintiffs’ counsel what sanctions would be appropriate. Counsel recognized that it is within the trial court’s discretion to determine an appropriate sanction, but stated that he thought a warning would be appropriate. The trial judge responded by saying: “What’s the purpose of a warning? Everybody is supposed to know the rules.” Based on this exchange, the Court of Appeals correctly found that the trial court considered lesser sanctions in his holding. In light of the multiple, extended delays, lesser sanctions in the present case would not serve the interests of justice. Thus, the trial judge did not abuse his discretion in dismissing this case under Rule 41(b). |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
