Cabaniss v. Wilson

• Decision Date: 19 December 1986
• Citation: 501 So. 2d 1177
• Parties: James D. CABANISS, et al. v. Ken WILSON, et al. 84-1331.
• Court: Alabama Supreme Court

Page 1177

501 So.2d 1177

James D. CABANISS, et al. v. Ken WILSON, et al.

84-1331.

Supreme Court of Alabama.

Dec. 19, 1986.

Walter Henley of Henley & Shirley, Northport, for appellants.

Alyce Manley Spruell of Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, for appellees.

BEATTY, Justice.

Plaintiffs, James and Martha Cabaniss, appeal from an order granting (1) defendants' oral motion for an involuntary dismissal of plaintiffs' complaint for failure to prosecute, and (2) defendants' motion for summary judgment. We reverse and remand.

Plaintiffs filed their complaint in Jefferson Circuit Court on April 5, 1984, alleging that on April 6, 1983, plaintiff James Cabaniss suffered a severe injury to his back while removing large chunks of wood or logs from a beltline or conveyor system in the woodroom of his employer, Weyerhaeuser Company, located in Millport, Alabama. Named as defendants were the following parties, in addition to 27 fictitious parties: Crawford & Company, Ken Wilson, Jerry Burkhalter, William Wilson, Steve Sery, Jud Farmer, John Pinkston, Donny Babb, Ravis Ayers, and Morris Bryant. With the exception of Crawford & Company, all of these named defendants were supervisory employees or officers of Weyerhaeuser Company.

Plaintiffs' complaint contained two counts. The first count alleged that Crawford & Company negligently or wantonly performed safety inspections for Weyerhaeuser. As to the other named defendants, plaintiffs alleged that they negligently or wantonly breached their duty to provide plaintiff James Cabaniss a safe place to work, or a reasonably safe work environment, and that they negligently or wantonly controlled the conditions, methods, or manner in which work was performed at the time and place of the occurrence made the basis of plaintiffs' complaint. In this first count, plaintiffs further stated against the fictitious defendants any and all claims in negligence, wantonness, breach of contract, and breach of warranty, and any claims arising under the Alabama Extended Manufacturer's Liability Doctrine. Plaintiff's second count claimed damages for Mrs. Cabaniss's mental and emotional distress as well as her loss of consortium.

The following chronology sets forth the pertinent actions taken subsequent to the filing of plaintiffs' complaint: On July 5, 1984, defendant Crawford & Company filed its motion for summary judgment. Based on some of the arguments advanced below, apparently this motion was granted, although an order to that effect does not appear in the record before this Court, nor is there anything else contained in the record indicating the date on which the motion was granted. In their statement of the case below, plaintiffs do not indicate that the motion was granted; however, without citing to the record, defendants state in their brief that the motion was granted August 1, 1984, despite the fact that the record indicates that the motion was scheduled for hearing on August 2, 1984. In any event, plaintiffs do not appeal from the order granting summary judgment in favor of Crawford & Company.

On July 19, 1984, defendant Donny Babb was dismissed as a party defendant for failure of service of process. On July 31, 1984, pursuant to Rule 4.1(c), A.R.Civ.P., plaintiffs filed an alias summons and complaint, which were served on Babb. On August 29, 1984, Babb responded by filing another motion to dismiss, attaching thereto his affidavit stating, in effect, that his employment at Weyerhaeuser had terminated as of May 1, 1982, approximately eleven months prior to James Cabaniss's injury. In his motion, Babb therefore contended that plaintiffs' claim against him was barred by the applicable statute of limitations of one year found at Code of 1975, § 6-2-39. On September 6, 1984, the trial court denied Babb's motion to dismiss and granted a motion for change of venue, transferring the case to the Lamar Circuit Court. The parties proceeded with the discovery process.

On April 18, 1985, the remaining nine defendants (i.e., those other than Crawford & Company) filed a motion for summary judgment "based upon the pleadings filed to date, the deposition of the plaintiff, James Cabaniss, and the applicable Alabama law." On May 7, 1985, the circuit court set defendants' summary judgment motion for hearing on June 4, 1985. On May 30, 1985, some six weeks after filing their motion for summary judgment, the defendants filed the affidavits of Matt McDaniel and defendant Ken Wilson. No certificate of service to opposing counsel was endorsed on either affidavit. The June 4 hearing on defendants' motion was held, at which plaintiffs' counsel failed to appear. Counsel for defendants orally moved to dismiss plaintiffs' complaint with prejudice under Rule 41(b) for failure to prosecute. The trial court granted the defendants' 41(b) motion and also their motion for summary judgment. ¹

Two weeks later, on June 19, 1985, plaintiffs filed a Rule 59(e) motion to reconsider and set aside the summary judgment, claiming, inter alia, that the June 4 hearing was inadvertently left off the calendar of plaintiffs' counsel, that discovery was not complete, and that genuine issues as to material facts still existed. Defendants filed a response to plaintiffs' motion to reconsider on June 25, 1985. The next day, June 26, plaintiffs amended their motion to reconsider to also request that the Rule 41(b) order be set aside. Plaintiffs also filed a reply to the defendants' response to their 59(e) motion and attached, among other things, affidavits of the plaintiffs' counsel's investigator, Larry R. Mann, in which Mann stated that he interviewed both Ken Wilson and Matt McDaniel and reduced their statements to writing, which each read and signed. These statements were attached to Mann's affidavits. By letter addressed to the circuit court dated July 8, 1985, defendants' counsel again responded to plaintiffs' request for post-judgment relief. On August 8, 1985, the trial court denied plaintiffs' motion to reconsider, as amended, and its order denying the motion was entered as a final order on August 13, 1985. This appeal followed.

Two issues are presented for review:

(1) Did the trial court err in granting defendants' Rule 41(b) motion for an involuntary dismissal of plaintiffs' complaint with prejudice for failure to prosecute?

(2) Did the trial court err in granting defendants' motion for summary judgment?

I.

Plaintiffs contend that an involuntary dismissal with prejudice for failure to prosecute is a drastic measure and should be granted only when a plaintiff's conduct mandates such action. Plaintiffs argue that their conduct through counsel did not mandate a dismissal with prejudice.

The defendants, on the other hand, contend that when a plaintiff has been dilatory in prosecuting his claim, a dismissal for want of prosecution is within the discretion and inherent power of the trial court and should be reversed only for an abuse of discretion. The defendants argue that the plaintiffs' dilatory behavior is evidenced by: (1) the failure of plaintiffs' attorney to appear in court for the June 4 hearing and his failure to notify the court or opposing counsel that he would not appear; (2) the necessity of defense counsel's obtaining two prior discovery orders compelling plaintiffs to respond to interrogatories and requests for production filed by the defendants; and (3) the failure of plaintiffs to attempt to take any depositions of defendants from the time the complaint was filed on April 5, 1984, until after the motion for summary judgment was filed on April 18, 1985.

In Smith v. Wilcox County Board of Education, 365 So.2d 659, 661-62 (Ala.1978), this Court set forth the rules applicable to this Court's review of a dismissal for failure to prosecute:

"The general rule, of course, is that a court has the inherent power to act sua sponte to dismiss an action for want of prosecution. Link v. Wabash R. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). However, since dismissal with prejudice is a drastic sanction, it is to be applied only in extreme situations. Brown v. Thompson, 430 F.2d 1214 (5th Cir.1970); Durham v. Florida East Coast Ry. Co., 385 F.2d 366 (5th Cir.1967).

"Therefore, appellate courts will carefully scrutinize such orders and occasionally will find it necessary to set them aside. 9 Wright & Miller, Federal Practice & Procedure, § 2370, p. 203, n. 1; see, e.g., Connolly v. Papachristid Shipping, Ltd., 504 F.2d 917 (5th Cir.1974); Flaksa v. Little River Marine Construction Co., 389 F.2d 885 (5th Cir.) cert. den. 392 U.S. 928, 88 S.Ct. 2287, 20 L.Ed.2d 1387 (1968).

"The Fifth Circuit Court of Appeals follows the rule that a trial judge may dismiss with prejudice an action 'only in the face of a clear record of delay or contumacious conduct by the plaintiff.' Durham v. Florida East Coast Ry. Co., supra, followed in Pond v. Braniff Airways, Inc., 453 F.2d 347 (5th Cir.1972); Boazman v. Economics Laboratory, Inc., 537 F.2d 210 (5th Cir.1976). Several other circuits follow that rule. See 9 Wright & Miller, Federal Practice & Procedure, § 2369, p. 194-95, n. 70. Other courts refer to a 'serious showing of willful default.' Gill v. Stolow, 240 F.2d 669 (2nd Cir.1957); Dabney v. Burrell, 67 F.R.D. 132 (D.Md.1975).

"Consequently, it appears that the plaintiff's conduct must mandate the dismissal. Brown v. Thompson, supra.

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* * * "Finally, appellees argue that a lengthy period of inactivity may be sufficient to justify dismissal. First, as noted before, there was activity in this case preceding the dismissal; even where there has been a period of inactivity, present diligence has barred dismissal. Raab v. Taber Instrument Corp., 546 F.2d 522 (2d Cir.1976); Moralos v. Lionel Corp., 439 F.Supp. 53 (S.D.N.Y.1977); United States v. Myers, 38 F.R.D. 194 (N.D.Cal.1964). Second, the rule is that a lengthy...