Shepard v. Prairie Anesthesia Assoc., et al.


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Docket Number: 2009-CA-01267-COA
Linked Case(s): 2009-CA-01267-COA2009-CT-01267-SCT
Oral Argument: 03-31-2011
 

 

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Court of Appeals: Opinion Link
Opinion Date: 08-30-2011
Opinion Author: Carlton, J.
Holding: Affirmed.

Additional Case Information: Topic: Wrongful death - Dismissal for failure to prosecute - M.R.C.P. 41(b)
Judge(s) Concurring: Griffis, P.J., Myers, Ishee, Roberts, Maxwell and Russell, JJ.
Non Participating Judge(s): Barnes, J.
Dissenting Author : Irving, P.J.
Dissent Joined By : Lee, C.J.
Procedural History: Dismissal
Nature of the Case: CIVIL - WRONGFUL DEATH

Trial Court: Date of Trial Judgment: 06-25-2009
Appealed from: Lowndes County Circuit Court
Judge: Lee J. Howard
Disposition: DISMISSED FOR FAILURE TO PROSECUTE
Case Number: 94-058-CV1

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Delia Shepard, Individually and as Administratrix of the Estate of Rodney Stowers, Deceased




ROBERT G. GERMANY



 
  • Appellant #1 Brief
  • Appellant #1 Reply Brief

  • Appellee: Prairie Anesthesia Associates, Russell Linton, M.D., and Golden Triangle Regional Medical Center M. JAY NICHOLS JAMES LAWRENCE WILSON IV JEFFREY JOHNSON TURNAGE AUBREY E. NICHOLS TOMMIE G. WILLIAMS  
    Appellee #2:  
    Appellee #3:  
  • Appellee #3 Brief

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    Topic: Wrongful death - Dismissal for failure to prosecute - M.R.C.P. 41(b)

    Summary of the Facts: Delia Shepard, individually and as administratrix of the estate of Rodney Stowers, filed a wrongful death action in the Scott County Circuit Court. The Scott County Circuit Court transferred the action to the Lowndes County Circuit Court, where a previously filed wrongful-death action (Jones action) related to Stowers’ death, which had been filed by Telesia Jones, on behalf of Stowers’s alleged daughter Kierra Jones, was already pending. After the action was re-filed in Lowndes County, the Lowndes County Circuit Court stayed this action pending resolution of dispositive motions filed in the Jones action. In 1996, the Mississippi Supreme Court reversed the rulings of the Scott County Chancery Court denying multiple requests for DNA tests in connection with the Jones action, and the Court ordered that blood genetic-marker testing be conducted on Kierra to confirm Stowers’s paternity. The test results established that Stowers was not the father of Kierra, and the Jones action was ultimately dismissed. In 1997, after a delay of nearly three years, the Lowndes County Circuit Court entered an order lifting the stay of this action and set expert disclosure and motion deadlines. On August 27, 1997, Prairie Anesthesia filed its answer and propounded written discovery to Shepard. On August 29, 1997, Dr. Linton filed his answer, and on September 10, 1997, he propounded written discovery to Shepard. On September 2, 1997, Golden Triangle filed its answer. On December 2, 1997, Dr. Linton filed a motion to dismiss or, in the alternative, to compel discovery, claiming that Shepard had refused to cooperate in discovery. On December 22, 1997, Prairie Anesthesia joined in the motion of Dr. Linton. The circuit court granted the motions to compel and ordered Shepard to provide complete interrogatory responses and the requested documents on or before February 27, 1998. The circuit court also entered an amended scheduling order extending the expert designation, discovery, and motions deadlines. The parties continued to propound discovery until the expiration of the amended scheduling order on September 15, 1998. On January 13, 2000, the clerk filed the first motion to dismiss for want of prosecution, noting that there had been no action of record during the twelve months preceding the motion. On February 11, 2000, Shepard responded by filing a motion for trial setting, requesting that the court set this case for trial. On April 11, 2001, the clerk filed a second motion to dismiss for want of prosecution, again noting that there had been no action of record during the twelve months preceding the motion. Shepard responded on April 13, 2001, by filing a second motion for trial setting and also requesting a status conference with the circuit court. On April 7, 2004, the clerk filed a third motion to dismiss for want of prosecution, and on April 15, 2004, Shepard again moved for a trial setting and status conference with the circuit court. On August 12, 2005, Shepard renewed this request. The circuit court set a hearing on Shepard’s motion for trial setting and status conference for November 14, 2005. At the hearing, the parties conditionally set the trial for November 27, 2006. Prairie Anesthesia’s counsel subsequently informed the parties and the circuit court in October 2006 that the conflict with the trial date remained; therefore, he requested to continue the trial. The circuit court entered an agreed order on November 27, 2006, continuing the trial “to a date in the future.” On March 28, 2008, the clerk filed another motion to dismiss for want of prosecution. On April 29, 2008, Shepard filed a motion for a trial setting and a Mississippi Rule of Civil Procedure 16 pretrial conference. On May 21, 2008, Prairie Anesthesia filed a motion to dismiss for want of prosecution. On November 20, 2008, Shepard filed a response, arguing that she had attempted to reset the case for trial following the continuance. The circuit court subsequently entered an order granting Prairie Anesthesia’s motion to dismiss for want of prosecution. Shepard appeals.

    Summary of Opinion Analysis: Shepard argues that the circuit court erred in dismissing with prejudice Shepard’s wrongful-death suit for failure to prosecute absent a finding of egregious or contumacious conduct by Shepard or her counsel. M.R.C.P. 41(b) permits a defendant to move for the dismissal of an action for the failure of the plaintiff to prosecute. Unless the court in its order for dismissal otherwise specifies, a dismissal under Rule 41(b) operates as an adjudication upon the merits. Factors to be considered by courts when ruling on a motion to dismiss include contumacious or dilatory conduct of the plaintiff; application of lesser sanctions; and other aggravating factors. Regarding the first factor, the circuit judge stated that he found no evidence that Shepard acted contumaciously; however, he did find that Shepard’s actions were dilatory in nature. The circuit judge noted that after the clerk filed each of the motions to dismiss for want of prosecution, Shepard filed a motion in response. However, the circuit judge noted that Shepard failed to take any action to bring these motions to the circuit court’s attention or request a hearing on the motions. When examining whether conduct is dilatory, the Court may consider whether the plaintiffs’ activity was reactionary to the defendants’ motion to dismiss, or whether the activity was an effort to proceed in the litigation. Over the course of the litigation, Shepard failed to take positive actions to prosecute her claim. When considering the second factor, the circuit judge found that the four clerk’s motions to dismiss constituted explicit warnings to Shepard to move forward with the case. The circuit judge held that lesser sanctions, in the form of the motions to dismiss, had already been applied; thus, they were no longer available. The record shows that the circuit court previously issued an order to compel Shepard to comply with discovery and scheduling orders, and it also issued an order demanding mediation to keep the case moving toward trial. With regard to the third factor, the court found that Prairie Anesthesia had been prejudiced due to the lengthy amount of time that had accrued. Shepard argues that no evidence exists in the record to support Prairie Anesthesia’s claims that it will be difficult to locate witnesses due to the amount of time that has elapsed. She also argues that since this is a medical-malpractice case, the main testimony needed is that of the experts. Prairie Anesthesia stated that it made efforts to contact witnesses who were employed by the hospital at the time of Stowers’s death, but it submits that after an investigation, it has learned that eleven of the nurses who cared for Stowers that no longer work there. Prairie Anesthesia also submits that the hospital had no record on six of those nurses. Given the factors, the circuit court did not abuse its discretion in granting Prairie Anesthesia’s motion to dismiss for want of prosecution pursuant to Rule 41(b).


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