APPELLANTS. IN THE SUPREME COURT OF MISSISSIPPI Case #2015-CA-01771

Transcription

1 E-Filed Document Aug :38: CA Pages: 34 IN THE SUPREME COURT OF MISSISSIPPI Case #2015-CA #201S-CA ELNORA HOLMES AND IRMA VENSON VS. vs. TERESA GRISBY PLAINTIFFS/APPELLANTS APPELLANTS NO. 201S-CA CA DEFENDANT/APPELLANT B BRIEF IEFOFPLAI APPELLA PELLA TIFFS... T Charles M. Merkel, Jr. (MSB #2884) Corrie J. Schuler (MSB # ) 1 MERKEL & COCKE A Professional Association Post Office Box Delta Avenue Clarksdale, Mississippi (662) (662) telefax

2 CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Justices of the Supreme Court and/or the Judges ofthe Court of Appeals may evaluate possible disqualification or recusal. 1. Elnora Holmes, Plaintiff-Appellant 2. Irma Venson, Plaintiff-Appellant 3. Charles M. Merkel, Jr., Merkel & Cocke, P.A., attorney for Plaintiff Appellant 4. Corrie J. Schuler, Merkel & Cocke, P.A., attorney for Plaintiff Appellant 5. Teresa Grisby, Defendant-Appellee 6. Amanda Povall Tailyour, Hickman Goza & Spragins, attorney for Defendant-Appellee 7. Goodloe Lewis, Hickman Goza & Spragins, attorney for Defendant Appellee 8. Hal S. Spragins, Jr., Hickman Goza & Spragins, attorney for Defendant Appellee 9. Honorable Johnnie E. Walls, Jr., Tunica County Circuit Court Judge, Retired 10. Honorable Linda Coleman, Tunica County Circuit Court Judge, Active By: /s/ CharlesM Merkel. Jr. CHARLES M. MERKEL, JR. (MSB # 2884) CORRIE J. SCHULER (MSB# ) Attorneys for Plaintiff-Appellant i

3 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS... 1 TABLE OF CONTENTS... ii TABLE OF AUTHORITIES iv STATEMENT OF THE ISSUES... 1 STATEMENT OF THE CASE... 2 A. Course of Proceedings and Disposition in the Court Below... 2 SUMMARY OF THE ARGUMENT... 8 ARGUMENT AND AUTHORITIES Standard of Review THE LOWER COURT ABUSED ITS DISCRETION BY DISMISSING THE CASE WITH PREJUDICE PURSUANT TOM.R.C.P. 41(b) A. The trial court abused its discretion in dismissing with prejudice plaintiffs' cause of action pursuant to Rule 41 (b) because the appellants' conduct does not evidence a clear record of delay or contumacious conduct B. The trial court abused its discretion in dismissing with prejudice plaintiffs' cause of action pursuant to Rule 41 (b) because the trial court made no finding whether lesser sanctions may have better served the interests of justice CONCLUSION CERTIFICATE OF SERVICE ii

4 CERTIFICATE OF FILING

5 TABLE OF AUTHORITIES MISSISSIPPI CASES AT&Tv. Days Inn a/winona, 720 So.2d 178 (Miss. 1998)... 13, 14,20,21,25 Camacho v. Chandeleur Homes, Inc., 862 So.2d 540 (Miss. Ct. App. 2003)... 14, 15 Cox v. Cox, 976 So.2d 873 (Miss. 2008)... 14, 15 Harvey v. Stone County Sch. Dist., 862 So.2d 545 (Miss. Ct. App. 2003) Hoffman v. Paracelcus Health Care Corp., 752 So.2d 1030 (Miss. 1999)... 12,13,14,18,20,21,22 Holder v. Orange Grove Med. Specialties, P.A., 54 So.3d 192 (Miss. 2010) Lone Star Casino Corp. v. Full House Resorts, Inc., 796 So.2d 1031 (Miss. Ct. App. 2001)... 14, 15 Wallace v. Jones, 572 So.2d 371 (Miss. 1990) Watson v. Lillard, 493 So.2d 1277 (Miss. 1986) FEDERAL CASES Anthony v. Marion Gen. Hasp., 617 F.2d 1164 (5 th Cir. 1980) Flaska v. Little River Marine Constr. Co., 389 F.2d 885 (5 th Cir. 1968) Morris v. Ocean Systems, Inc., 730 F.2d 248 (5 th Cir. 1984)... 14, 15 iv

6 Rogers v. Kroger Co., 669 F.2d 317 (5 th Cir. 1982) RULES Miss. R. Civ. P Miss. R. Civ. P. 41(b)... 1,5,9, 10, 12, 13, 14, 15, 16, 18,20,21,22,24,25 U.R.C.C.C ,17 OTHER AUTHORITIES 9 C. Wright 7 A. Miller, Federal Practice and Procedure, Civil 2370 (1971) v

7 STATEMENT OF THE ISSUES 1. THE LOWER COURT ABUSED ITS DISCRETION BY DISMISSING THE CASE WITH PREJUDICE PURSUANT TO M.R.C.P. 41(b) A. The trial court abused its discretion in dismissing with prejudice plaintiffs' cause of action pursuant to Miss. R. Civ. P. 41(b) because the appellants' conduct does not evidence a clear record of delay or contumacious conduct B. The trial court abused its discretion in dismissing with prejudice plaintiffs' cause of action pursuant to Miss. R. Civ. P. 41 (b) because the trial court made no finding whether lesser sanctions may have better served the interests of justice 1

8 STATEMENT OF THE CASE A. Course of Proceedings and Disposition in the Court Below This case arises from personal injuries sustained by the plaintiffs-appellants, Elnora Holmes and Irma Venson, when the car in which they were traveling was rearended at a traffic signal by the defendant-appellee, Teresa Grisby, on U.S. Highway 61 in Tunica County, Mississippi. Record at pages [hereinafter R ]; Record Excerpt 1 [hereinafter R.E. 1]. Plaintiffs Elnora Holmes, Irma Venson, and Irma White 1, residents of Rapides Parish, Louisiana, brought suit against defendant Teresa Grisby in the Circuit Court of Tunica County, Mississippi. R ; R.E. 1. Plaintiffs were represented by attorneys Jeremy P. Diamond and Timothy D. Blalock of Natchez, Mississippi. Id. The case was assigned to Circuit Judge Johnnie E. Walls, Jr. of the Eleventh Circuit Court District. R. 17. On August 8, 2011, the defendant filed her Answer to the plaintiffs' Complaint. R Defendant subsequently propounded written discovery to the plaintiffs on or about August 8, R On November 14, 2011, the defendant filed a motion to compel discovery requests to the written discovery propounded to the Irma White's claims were subsequently dismissed with prejudice for her failure to offer her deposition testimony in this cause. R. 70. Ms. White, therefore, is not a party to this appeal, and is, upon information and belief, now deceased. Hearing Transcript, R.E. 4, pages

9 plaintiffs. R On December 8, 2011, the defendant noticed the depositions of plaintiffs Elnora Holmes, Irma Venson, and Irma White, to be held in Greenville, Mississippi on January 5, [sic]. R. 62. According to c01tespondence of counsel for the defendant contained in the record, the plaintiffs did not appear for the deposition in Greenville on January 5, R. 64. On January 13, 2012, the defendant re-noticed the depositions of all three plaintiffs for February 9, 2012, to be held in Greenville, Mississippi. R On January 23, 2012, the defendant filed a second re-notice of depositions specific to plaintiffs Holmes and Venson changing the location of the February 9, 2012 depositions from Greenville to Oxford, Mississippi. R It is undisputed that the depositions of plaintiffs Elnora Holmes and Irma Venson, the appellants herein, were taken by defense counsel on February 9, 2012 in Oxford, Mississippi. On January 27, 2012, the defendant filed a second re-notice of deposition specific to plaintiff Inna White, with White's deposition set to be conducted telephonically on February 9, R According to the motion to dismiss subsequently filed by defense counsel as to Inna White, "[t]he day before the scheduled deposition, White advised through her counsel that she was not available." 2 Apparently, the defendant was attempting to set the depositions of the plaintiffs for January 5,

10 R.58. On April 16, 2012, the defendant filed a third re-notice of deposition specific to plaintiff Irma White, with White's deposition set to be conducted telephonically on April 23, R According to defendant's motion to dismiss filed specifically as to plaintiff Irma White, Ms. White did not appear for her deposition on April 23,2012, reportedly due to illness. R.59. On April 27, 2012, the defendant filed Motion to Dismiss Irma White with Prejudice for Failure to Comply with Discovery pursuant to Rule 37 of the Mississippi Rules of Civil Procedure. R On May 7, 2012, Circuit Judge Walls signed an order dismissing all claims of Irma White with prejudice - the order was filed by the clerk on May 10,2012. R.70. Following the dismissal of Irma White from the lawsuit, counsel for the defendant noticed and set the case for trial for December 4, 2013 in the Circuit Court of Tunica County, Mississippi. Circuit Judge Walls signed an agreed order on May 21,2013 setting a December 4,2013 trial date, and it was filed by the clerk on June 5,2013. R. 83; R.E. 2. On October 21, 2013, some forty-four (44) days prior to trial, Circuit Judge Walls signed an Agreed Order of Continuance presented by counsel for the parties. R. 88; R.E. 3. The order stated, in toto: 4

11 By order of this Court, and agreement of the parties, the trial of this matter which is scheduled for December 4, 2013 at 9:00 a.m. in the Circuit COUli of Tunica County, in Tunica, Mississippi is hereby CONTINUED until a later date agreeable by all parties. Id. After the trial court entered the agreed order continuing the trial to an undetermined future date, counsel for plaintiffs Elnora Holmes and Irma Venson in actuality withdrew their representation ofthe plaintiffs. However, plaintiffs' counsel did not file a motion for permission to withdraw their representation of the plaintiffs pursuant to Uniform Circuit and County COUli Rule 1.13, and an order granting plaintiffs' counsel permission to withdraw was never entered by the trial judge. R On December 31, 2014, one year and twenty-seven days after the date previously set for trial, the defendant filed a Motion to Dismiss for Want of Prosecution pursuant to M.R.C.P. 41(b). R As the record demonstrates, plaintiffs initial counsel, who remained counsel of record, did not file a response in opposition to the defendant's motion. R.8-9. Instead, the plaintiffs, who were non- Mississippi residents, took it upon themselves to contact a local Texas attorney in an effort to continue the prosecution of their claims. R Plaintiffs' local counsel made efforts to find a Mississippi-licensed attorney to take over the 5

12 prosecution of the plaintiffs' case, and the undersigned Mississippi counsel assumed representation in this matter after being contacted by the plaintiffs' local counsel. R On February 25,2015, less than two months after the filing of the defendant's motion to dismiss, the undersigned Mississippi counsel filed an Entry of Appearance on behalf of the plaintiffs Elnora Holmes and Irma Venson. R. 99. On March 4, 2015, the undersigned counsel promptly filed Plaintiffs' Opposition to Motion to Dismissfor Want of Prosecution. R.I0I-I02. On March 25,2015, counsel for the defendant filed a Notice of Hearing on her Motion to Dismissfor Failure to Prosecute, which set the hearing on July 8, R.I04. On April 1, 2015, the undersigned counsel for the plaintiffs noticed the deposition of defendant Teresa Grisby for April 10, 2015, at the offices of defense counsel in Hernando, Mississippi. R The undersigned counsel for the plaintiffs took defendant Grisby'S deposition as scheduled on April 10, On August 13, 2015, counsel for the defendant filed a Second Re-Notice of Hearing on Grisby's Motion to Dismiss for Failure to Prosecute, resetting the hearing for September 29, 2015 at the Circuit Court of Bolivar County, Mississippi before Circuit Judge Walls. R

13 On September 29, 2015, a hearing was conducted on the record in chambers before Circuit Judge Walls. Hearing Transcript, Record Volume 3 of 3, Pages Numbered 1-18; R.E. 4 3 Although Circuit Judge Walls was present at the hearing, the transcript of the hearing evidences that in reality the judge's staff attorney conducted the hearing. Jd. 4 On October 27, 2015, the trial court entered a proforma order submitted by defendant's counsel granting the defendant's Motion to Dismiss for Failure to Prosecute and dismissing the claims of plaintiffs Elnora Holmes and Irma Venson, the appellants herein, with prejudice. R. 114; R.E. 5. On November 23, 2015, the plaintiffs timely filed their Notice of Appeal of the trial court's order of dismissal with prejudice. R The hearing transcript that has been made part of the record incorrectly states that the hearing on defendant's Motion to Dismiss for Want of Prosecution was held on July 29, 2015; the correct date of hearing is September 29, As this Honorable Court is aware, Circuit Judge Johnnie E. Walls, Jr. retired from the Eleventh District Circuit Court, effective January 31, 2016, due to health issues. 7

14 SUMMARY OF THE ARGUMENT The underlying case in this civil action is simple and straightforward, with the plaintiffs-appellants alleging that the defendant-appellee negligently rear-ended a vehicle in which the plaintiffs were traveling, and that the defendant's negligence caused them injury. The case is ready for trial, and the undersigned counsel is prepared to try it at the next available trial setting. For the following reasons, it is clear that the trial court abused its"discretion in dismissing this civil action with prejudice. There is no evidence of a clear record of delay or contumacious conduct on the part of the plaintiffs or that the trial court considered lesser sanctions that may have better served the interests of justice Under Mississippi law, dismissals for failure to prosecute are employed reluctantly, and are reserved for "the most egregious cases," in which the record evidences a clear pattern of delay or contumacious conduct on the part ofthe plaintiff. The appellants' case simply does not fall into this category. The only "delay" that can even arguably be attributed to the plaintiffs themselves, who were Louisiana residents at the time the lawsuit was initiated, and that cannot be solely attributed directly to the inaction of their previous counsel of record following the agreed continuation of the case, is an approximately thirty-five (35) day postponement of their depositions 8

15 at the outset of discovery. The non-resident plaintiffs respectfully aver that a single delay in presenting for their depositions, which was rectified the following month when their depositions were taken in Oxford, Mississippi, hardly evinces a clear record of delay or contumacious conduct on their part that might warrant dismissal of their causes of action pursuant to Miss. R. Civ. P. 41(b). Moreover, the record indicates that defense counsel, subsequent to the taking of plaintiffs' depositions, set the case for trial to be held on December 4, Clearly, the defendant believed the case was trial-ready at that time. Clearly, any previous delay in taking the depositions of plaintiffs Holmes and Venson arguably attributable to the plaintiffs had by that point been fully cured, and the defendant, having herself completed discovery and requested the trial setting, cannot be heard to complain that between December 4, 2013 and December 31, 2014 she was prejudiced by the period of inactivity. Approximately a month and a half prior to the December 4,2013 trial date, the trial was continued by agreed order "until a later date agreeable by the parties." By its order, the trial court set no time-limit on the prosecution of the plaintiffs' claims. Following the entry of the agreed order of continuance, counsel for plaintiffs Elnora Holmes and Irma Venson informally but effectively withdrew their representation of the plaintiffs. Plaintiffs sought new counsel to represent them, but before they were 9

16 able to retain new counsel, the defendant filed her Motion to Dismiss for Failure to Prosecute approximately one year and two months after the entry of the agreed order of continuance. Plaintiffs submit that their continued efforts to obtain new counsel to prosecute their case, which was ultimately accomplished, does not support a finding of unreasonable or inexcusable delay on their part. Upon undertaking representation of the plaintiffs, the undersigned counsel promptly filed a response to the defendant's pending motion to dismiss for failure to prosecute, and additionally noticed and took the deposition of the defendant prior to the hearing on the defendant's motion to dismiss, and attended the hearing on the defendant's motion to dismiss. The case was ready for trial in December of20 13 and remains ready to be tried today. The record is devoid of documentation of a pattern of delay or contumacious conduct by the plaintiffs. Accordingly, the trial court abused its discretion in dismissing the plaintiffs' claims with prejudice. In addition, when confronted with a Rule 41 (b) motion, trial courts are required to make a determination whether sanctions less severe than dismissal with prejudice would better serve the interests of justice. Again, the record is devoid of evidence that the trial court considered the imposition of lesser sanctions. The order dismissing plaintiffs' causes of action is strictly pro forma; it does not state the 10

17 reasoning behind the trial judge's decision, or that he even considered lesser sanctions before he dismissed plaintiff's claims with prejudice. The hearing transcript demonstrates that the trial judge, who was ill at the time and on the verge of retirement, had virtually ceded decision-making authority to his staff attorney. The case sub judice is simply not a "most egregious" case of unreasonable delay or contumacious conduct on the part of plaintiffs; therefore, the trial judge should have imposed sanction( s) less severe than dismissal, if any at all. The absence of any proof in the record which indicates that the trial judge even considered whether lesser sanctions would have better served the interests of justice constitutes an abuse of the trial court's discretion, and merits reversal of the trial court's order of dismissal with prejudice. 11

18 ARGUMENT AND AUTHORITIES Standard of Review A trial court's decision to dismiss a cause of action with prejudice pursuant to Rule 41 (b) of the Mississippi Rules of Civil Procedure is governed by an abuse of discretion standard. Hoffman v. Paracelcus Health Care Corp., 752 So.2d 1030, 1034 (Miss. 1999) (citing Wallace v. Jones, 572 So.2d 371,375 (Miss. 1990)). I. THE LOWER COURT ABUSED ITS DISCRETION BY DISMISSING THE CASE WITH PREJUDICE PURSUANT TO M.R.C.P. 41(b) M.R.C.P. 41 provides: (b) Involuntary Dismissal: Effect Thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him. After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court may then render judgment against the plaintiff or may decline to render judgment on the merits against the plaintiff, the court may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court may make findings as provided in Rule 52(a). Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any other dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits. 12

19 M.R.C.P.41(b). Mississippi appellate courts have not hesitated to reverse and remand cases dismissed by the trial court under Rule 41 (b) where, as in the case sub judice, (1) there is no showing of "a clear record of delay or contumacious conduct by the plaintiff," and (2) there is no finding by the trial court whether lesser sanctions may have better served the interests of justice. AT&Tv. Days Inn of Winona, 720 So.2d 178,181 (Miss. 1998) (citing Rogers v. Kroger Co., 669 F.2d 317 (5 th Cir. 1982». See also Holder v. Orange Grove Med. Specialties, P.A., 54 So.3d 192, 197 (~18) (Miss. 2010) ("In sum, this Court may uphold a Rule 41(b) dismissal where there is: (1) a record of dilatory or contumacious conduct by the plaintiff; and (2) a finding by this Court that lesser sanctions would not serve the interests of justice.") (emphasis added). A. The trial court abused its discretion in dismissing with prejudice plaintiffs' cause of action pursuant to Rule 41(b) because the appellants' conduct does not evidence a clear record of delay or contumacious conduct While '''[t]he power to dismiss an action for want of prosecution is part of a trial court's inherent authority[,] '" Mississippi law also favors trial of issues on the merits. Hoffman. 752 So.2d at (citations omitted). Under Mississippi law, "dismissals for want of prosecution are therefore employed reluctantly." Id. at 1034 (citation omitted) (emphasis added). "There is no set time limit on the prosecution 13

20 of an action once it has been filed, and dismissal for failure to prosecute will be upheld only 'where the record shows that a plaintiff has been guilty of dilatory or contumacious conduct. '" Id. (citation omitted) (emphasis added). "Dismissal with prejudice is an extreme and harsh sanction that deprives a litigant of the opportunity to pursue his or her claim, and is reserved for the most egregious cases, usually where clear delay and ineffective lesser sanctions are present." Harvey v. Stone County Sch. Dist., 862 So.2d 545, 549 (Miss. Ct. App. 2003) (citingat&t, 720 So.2d 178, (emphasis added)). "What constitutes failure to prosecute is considered on a case-by-case basis." Cox v. Cox, 976 So.2d 873, 874 (Miss. 2008) (citations omitted). Moreover, cases from both the Mississippi Supreme Court and the Mississippi Court of Appeals "indicate that factors other than delay typically are present when a dismissal with prejudice under Rule 41(b) is upheld." Id. at (citing Hoffman, 752 So.2dat (Miss. 1999) (dismissal improper); AT&T, 720 So.2d at (dismissal improper); Camacho v. Chandeleur Homes, Inc., 862 So.2d 540, (Miss. Ct. App. 2003) (dismissal improper); Lone Star Casino Corp. v. Full House Resorts, Inc., 796 So.2d 1031, (Miss. Ct. App. 2001) (dismissal improper)). Additionally, "[ e ]fforts to secure substitute counsel may constitute excusable delay." Id. at 875 (emphasis added) (citing Morris v. Ocean Systems, Inc., 730 F.2d 14

21 248, 249, 253 (5 th Cir. 1984) (delay of eight months included efforts to secure substitute counsel and did not warrant dismissal); Camacho, 862 So.2d at 544 (delay of five months in acquiring counsel did not warrant dismissal); Lone Star Casino Corp., 796 So.2d at 1033 (delay of twenty months in acquiring counsel did not warrant dismissal». The Mississippi Supreme Court has held: "Where a litigant has not been an participant in the fault, the sanction of dismissal with prejudice should be a last resort." Id. at 877 (citing Flaska v. Little River Marine CanstI'. Co., 389 F.2d 885, 889 n. 11 (5 th Cir. 1968) (emphasis added». "While a client may be held accountable for his attorney's conduct, many courts have imposed lesser sanctions than dismissal where fault lies with the attorney rather than the client." Id. (citing 9 C. Wright 7 A. Miller, Federal Practice and Procedure: Civil 2370, at 201 n. 86 (1971» (case citations omitted). Close review of the record at bar demonstrates that the plaintiffs' case simply does not fall into the "most egregious cases" category that merits dismissal pursuant to Rule 41 (b). The only delay that can even arguably be attributed to the plaintiffs themselves, who were Louisiana residents at the time the lawsuit was initiated, and that cannot be attributed directly to the inaction of their previous counsel of record following the agreed continuance of the case in October of20 13, is an approximately thirty-five (35) day delay in having their depositions taken in North Mississippi. 15

22 While it is true that the plaintiffs did not appear for their depositions noticed for January 5, 2012, in Greenville, Mississippi, it is also true that they did appear and were in fact deposed by counsel for the defense on February 9, 2012, in Oxford, Mississippi. The plaintiffs respectfully aver that a single failure to appear for depositions that resulted in one postponement of the taking of those depositions hardly evinces a clear record of delay or contumacious conduct on their part such that dismissal of their cause of action is warranted pursuant to Miss. R. Civ. P. 41 (b). It bears noting here that the plaintiffs were Louisiana residents at the time that their depositions were taken, and that they each traveled a significant distance to Oxford, Mississippi to be deposed at the offices of defense counsel in order to comply with discovery and in furtherance of the prosecution of their causes of action. Moreover, the record indicates that defense counsel, subsequent to the taking of plaintiffs' depositions, set the case for trial for December 4,2013. Clearly, the defendant believed the case was trial-ready at that time, and that any problem caused by the delay in taking the depositions of plaintiffs Holmes and Venson back in January/February of2012 was fully cured. Some forty-four (44) days prior to the agreed December 4th trial date, Circuit Judge Walls signed an agreed order of continuance presented by counsel for the parties. The order simply stated that the trial "is hereby CONTINUED until a later 16

23 date agreeable by all parties." The order did not re-set the trial to a specific later date. There was no urgency to the order. After the trial court entered the agreed order continuing the trial to an undetermined future date, counsel for plaintiffs Elnora Holmes and Irma Venson effectively abandoned their representation of the plaintiffs. However, plaintiffs' counsel did not file a motion for permission to withdraw their representation of the plaintiffs pursuant to Uniform Circuit and County Court Rule 1.13, and an order granting plaintiffs' counsel permission to withdraw was never entered by the trial judge, which left the plaintiffs in limbo. Plaintiffs Holmes and Venson were forced to take matters into their own hands and, even in the absence of any court order instructing them to obtain new counsel, the plaintiffs contacted an attorney to assist them in the prosecution of their case. Plaintiffs' local counsel undertook a search for a Mississippi-licensed attorney to take over the plaintiffs' representation. Before the plaintiffs were able to retain new Mississippi-licensed counsel, however, the defendant filed her Motion to Dismiss for Failure to Prosecute approximately one year and two months after the entry of the agreed order of continuance. The plaintiffs respectfully submit that their conduct in taking positive steps to obtain a new attorney to represent them in place of the ones who had abandoned their case cannot be said to constitute a record of delay or contumacious conduct 17

24 supportive of a Rule 41 (b) dismissal. In truth, the plaintiff s efforts to retain new counsel support an opposite finding: that the plaintiffs fully intended to prosecute their causes of action all along, but were impeded from doing so by their original attorneys' abandonment oftheir representation. It is noteworthy that the agreed order of continuance signed by Judge Walls in October of 2013 set no time limit upon prosecution of the action and expressed no urgency with regard to re-setting the case for trial, and also that Mississippi law imposes no set time limit for the prosecution of a lawsuit once it is filed. Hoffman, 752 So.2d at The record at bar indicates that the plaintiffs, from the outset of the filing of this action, have complied with discovery and have done everything in their power to prosecute their lawsuit, incl uding finding and retaining new counsel to represent them in this cause once their original attorneys effectively ceased to represent them. Review of the hearing transcript makes it apparent that much of the argument and ire directed by defense counsel toward plaintiffs Elnora Holmes and Irma Venson actually involved the conduct offormer co-plaintiffirma White, who failed to appear at multiple depositions and whose claims were ultimately dismissed by the trial court in May of 2012 for failure to comply with discovery. R.E. 4. The transcript demonstrates that defense counsel was stili arguing about Ms. White's conduct at the hearing on defendant's Motion to Dismiss/or Failure to Prosecute, more than three 18

25 years after Ms. White had been dismissed with prejudice from the case. R.E. 4, pages 5-7. The past conduct of Ms. White, which resulted in dismissal of her cause of action in 2012, cannot be imputed to remaining plaintiffs Holmes and Venson, who in fact did comply with discovery, and continued their efforts to prosecute their case even after their original attorneys abandoned their representation. Upon undertaking representation less than two months after the filing of the defendant's motion to dismiss, the undersigned Mississippi counsel filed an Entry of Appearance on behalf of the plaintiffs Elnora Holmes and Irma Venson on February 25,2015, promptly filed a response to the defendant's pending Motion to Dismiss for Failure to Prosecute on March 4,2015, and and noticed and took the deposition of the defendant, Teresa Grisby, on April 10, The case is presently ready for trial, and the undersigned counsel is prepared to try it at the next available trial setting. The record is devoid of documentation of a pattern of delay or contumacious conduct by the plaintiffs. The October 2013 order of trial continuance established no explicit time limit for the plaintiffs to prosecute their causes of action and expressed no urgency concerning the re-setting of a trial date; moreover, any delay in doing so was solely attributable to the plaintiffs' original attorneys abandoning their representation and the plaintiffs having to find another attorney to take their case, which they did in fact accomplish. The case was trial-ready at the time ofthe hearing 19

26 on defendant's motion to dismiss, and remains so today. Accordingly, the trial court abused its discretion in dismissing the plaintiffs' claims with prejudice pursuant to Rule 41 (b), which is reserved only for the most egregious cases of unreasonable delay or contumacious conduct. B. The trial court abused its discretion in dismissing with prejudice plaintiffs' cause of action pursuant to Rule 41(b) because the trial court made no finding whether lesser sanctions may have better served the interests of justice "Where there is no indication in the record that the lower court considered any alternative sanctions to expedite the proceedings, appellate courts are less likely to uphold a Rule 41(b) dismissal." Hoffman, 752 So.2d at 1035 (citation omitted). "Lesser sanctions include fines, costs, or damages against plaintiff or his counsel, attorney disciplinary measures, conditional dismissal, dismissal without prejudice, and explicit warnings." Id. (citation omitted). Moreover, "consideration of lesser sanctions cannot be presumed, but there should be some indication in the record that lesser sanctions were considered." AT&T, 976 So.2d at 876, n. 10 (emphasis in original). In one factually similar case, Hoffman v. Paracelsus Health Care Corp., 752 So.2d 1030 (Miss. 1999), the Mississippi Supreme Court reversed a trial court's dismissal of the plaintiff s claims with prejudice, finding that the trial court abused its discretion where the record did not support (1) a finding that the trial court 20

27 considered sanctions less than dismissal with prejudice and (2) that the plaintiff's conduct, as opposed to that of her counsel, was responsible for any of the delays in the case: [There] is no indication that lesser sanctions were considered by the court. It is questionable whether the present case fulfills the requisite factors for dismissal under Rule 41 (b). The record does not suggest Hoffman [Plaintiff], as opposed to her counsel, was responsible for any of the delays. This circumstance sets the present case apart from other cases in which Rule 41 (b) dismissals have been affirmed. Anthony v. Marion Gen. Hosp., 617 F.2d 1164, 1168 n. 4 (5 th Cir. 1980) ("we note that in at least four cases where dismissal was held to be inappropriate, a factor was the lack of any indication in the record of the client's knowledge of, or participation in, his attorney's failure to prosecute"); See, e.g., Watson v. Lillard, 493 So.2d 1277 (Miss. 1986) (Rule 41(b) dismissal of the plaintiff's case affirmed where it was found that the plaintiff herself was responsible for driving off two set of competent counsel). Hoffinan, 752 So.2d at 1035 (emphasis added). In Hoffman, the Supreme Court opined further that "negligence or inexcusable conduct on the part of plaintiff's counsel does not in and of itself justify dismissal with prejudice." ld. (citing AT&T, 720 So.2d at 1181). With respect to the trial court's ability to control its own docket, the Supreme Court stated: "This is not to say the lower court is powerless to derelictions of duty by counsel. Upon remand the circuit COUlt may impose such reasonable sanctions, short of dismissal, on Hoffman 21

28 or her present attorneys as the court may find appropriate." Id. (internal citations omitted) (emphasis added). Finally, in language that is entirely applicable to the facts of the case sub judice, the Hoffman court held: Id. (emphasis added). A motion to dismiss for failure to prosecute is governed by Rule 41 (b). While the authority exists to dismiss a case with prejudice for failure to prosecute as a necessary means to control the docket, the power is reserved for egregious cases of delay. The record does not show a claim of prejudice or injury to the appellees by reason of the delay. Dismissal is drastic punishment and should not be invoked except where the conduct of the party has been so deliberately careless as to call for drastic action. As in Hoffman, the record in the case sub judice contains absolutely no indication that lesser sanctions were considered by the trial judge before he signed the order dismissing the plaintiffs' case with prejudice. What is demonstrated by the transcript of the hearing on the defendant's Motion to Dismiss for Failure to Prosecute is that the trial judge's staff attorney in actuality conducted the hearing, and that the trial judge was a passive participant in the hearing. A review of the eighteenpage hearing transcript reveals that participation by the trial judge was limited to the following: MS. TAIL YOUR [Defense counsel]: Your Honor, if I may respond? 22

29 THE COURT [Judge Walls]: Yes. R.E. 4, page 14, line 29; page 15, lines 1-3. THE COURT: Gail, I think we ought to go in her and talk because I think- MS. TAIL YOUR: Your Honor, would you like me to provide you with those cases or do you have - MS. THOMPSON [Court staff attorney]: I made a copy of the cases that you submitted. MS. TAIL YOUR: Thank you. MS. THOMPSON: Is the Court saying that we need to take it under advisement? THE COURT: That's what I'm thinking, but not for long. MS. THOMPSON: In 10 days we ought to be able to have a decision. THE COURT: If we don't do something in that period of time, say within- MS. THOMPSON: We'll have it done in 10 days. THE COURT: Yes. MS. TAILYOUR: Thank you. THE COURT: Okay. R.E. 4, page 16, lines 11-29; page 17, lines 1-2. In total, the presiding judge uttered thirty-seven (37) words, most having to do with when a decision might be available. R.E.4. 23

30 Based upon the procedural history of this case as evinced in the record, it is clear that the present case is a textbook example of a case where lesser sanctions should have been considered and imposed by the trial court, e.g., the trial setting for December 4, 2013 was continued by agreement of the parties; no set time limit forresetting the trial was contained in the agreed order to continue the trial date; the plaintiffs' original counsel de facto withdrew their representation of the plaintiffs without seeking leave of court or obtaining an order from the trial court permitting them to do so; the plaintiffs, non-mississippi residents, took affinnative steps to retain new Mississippi-licensed counsel to undertake their representation in this cause upon the de facto withdrawal of their original counsel; plaintiffs did retain the services of the undersigned counsel, who responded to the defendant's Rule 41(b) motion to dismiss, noticed and took the deposition of the defendant prior to the hearing on defendant's motion, and represented the plaintiffs at the hearing. Fmihelmore, the fact that the plaintiffs-appellants' current counsel was able to position their case into a trial-ready posture within two months of undertaking representation supports a finding by this Honorable Court that the plaintiffs had been consistently prosecuting their claims all along, and that the approximately one year delay that occurred following the entry of the agreed order of continuance was solely attributable to the unauthorized withdrawal of representation by their original counsel 24

31 of record. Plaintiffs respectfully submit that imposition oflesser sanctions by the trial court was not even necessary by the time the defendant's motion to dismiss was heard, as they had already retained new trial counsel who was diligently readying the case for trial-for example, by noticing and taking the deposition of the defendant, Teresa Grisby, which plaintiffs' original counsel had failed to do up to that point. Certainly, under these circumstances, the trial court was required at the very least to consider whether to issue a lesser sanction than dismissal with prejudice. Instead, the trial imposed the ultimate, most drastic sanction, dismissal with prejudice, without even stating that lesser sanctions had been considered. The plaintiffs respectfully submit that the trial coul1's failure to consider lesser sanctions constituted an abuse of discretion under Mississippi law, thereby warranting reversal of the trial court's order of dismissal with prejudice. CONCLUSION The record in the case sub judice "fulfills neither of the requisite factors for dismissal under Rule 41(b)." See AT&T, 720 So.2d at 182. There is no clear record of delay or contumacious conduct on the part of the plaintiffs, and no finding by the trial court that lesser sanctions would not have better served the ends of justice. For the foregoing reasons, the final order of dismissal with prejudice ofthe Circuit COUl1 of Tunica County, Mississippi should be reversed and remanded for a full trial on the 25

32 merits. Respectfully submitted, this the 12th day of August, MERKEL & COCKE, P.A. Post Office Box Delta Avenue Clarksdale, MS Tele: (662) Fax: (662) By: Isl Charles M Merkel. Jr. CHARLES M. MERKEL, JR. (MSB #2884) ATTORNEY FOR APPELLANTS 26

33 CERTIFICATE OF SERVICE I hereby certify that on this day I electronically filed the foregoing with the Clerk of the Court using the ECF system which sent notification of such filing to the following: Amanda Povall Tailyour, Esq. atailyour@hickmanlaw.com Goodloe Lewis, Esq. glewis@hickmanlaw.com Hal S. Spragins, Jr., Esq. hspragins@hickmanlaw.com and I hereby certify that I have mailed by United States Postal Service the document to the following: Honorable Johnnie E. Walls, Jr., Retired P.O. Drawer 548 Cleveland, MS Honorable Linda F. Coleman P.O. Drawer 548 Cleveland, MS This the l 2 1 h day of August, /s/ Charles M Merkel, Jr. CHARLES M. MERKEL, JR. (MSB2884) 27

34 CERTIFICATE OF FILING I hereby certify that on this day I electronically filed the foregoing with the Clerk of the Court using the ECF system which sent notification of such filing to the following: Amanda Povall Tailyour, Esq. atailyour@hickmanlaw.com Goodloe Lewis, Esq. glewis@hickmanlaw.com Hal S. Spragins, Jr., Esq. hspragins@hickmanlaw.com and I hereby certify that I have mailed by United States Postal Service the document to the following: Honorable Johnnie E. Walls, Jr., Retired P.O. Drawer 548 Cleveland, MS Honorable Linda F. Coleman P.O. Drawer 548 Cleveland, MS This the 12th day of August, Isl Charles M Merkel, Jr. CHARLES M. MERKEL, JR. (MSB2884) 28