Dimon v. Mansy, No. 23071

• Court: Supreme Court of West Virginia
• Writing for the Court: CLECKLEY; RECHT
• Citation: 198 W.Va. 40,479 S.E.2d 339
• Parties: Shirman DIMON, Plaintiff Below, Appellant, v. Fahmi MANSY and Tamam Mansy, his wife, Defendants Below, Appellees.
• Decision Date: 15 November 1996
• Docket Number: No. 23071

Page 339

479 S.E.2d 339 198 W.Va. 40 Shirman DIMON, Plaintiff Below, Appellant,
v.
Fahmi MANSY and Tamam Mansy, his wife, Defendants Below, Appellees. No. 23071. Supreme Court of Appeals of West Virginia. Submitted Sept. 25, 1996.
Decided Nov. 15, 1996.

Page 342

[198 W.Va. 43] Syllabus by the Court

1. "Under W.Va.R.Civ.P. 41(b), in order to reinstate a cause of action which has been dismissed for failure to prosecute, the plaintiff must move for reinstatement within three terms of entry of the dismissal order and make a showing of good cause which adequately excuses his neglect in prosecution of the case." Syl. Pt. 1, Brent v. Board of Trustees of Davis & Elkins College, 173 W.Va. 36, 311 S.E.2d 153 (1983).

2. Before a court may dismiss an action under Rule 41(b), notice and an opportunity to be heard must be given to all parties of record. To the extent that Brent v. Board of Trustees of Davis & Elkins College, 173 W.Va. 36, 311 S.E.2d 153 (1983), and any of our previous holdings differ with this ruling, they are expressly overruled.

3. In carrying out the notice and opportunity to be heard requirements, before a case may be dismissed under Rule 41(b), the following guidelines should be followed: First, when a circuit court is contemplating dismissing an action under Rule 41(b), the court must first send a notice of its intent to do so to all counsel of record and to any parties who have appeared and do not have counsel of record. The notice shall inform that unless the plaintiff shall file and duly serve a motion within fifteen days of the date of the notice, alleging good cause why the action should not be dismissed, then such action will be dismissed, and that such action also will be dismissed unless plaintiff shall request such motion be heard or request a determination without a hearing. Second, any party opposing such motion shall serve upon the court and the opposing counsel a response to such motion within fifteen days of the service of such motion, or appear and resist such motion if it be sooner set for hearing. Third, if no motion is made opposing dismissal, or if a motion is made and is not set for hearing by either party, the court may decide the issue upon the existing record after expiration of the time for serving a motion and any reply. If the motion is made, the court shall decide the motion promptly after the hearing. Fourth, the plaintiff bears the burden of going forward with evidence as to good cause for not dismissing the action; if the plaintiff does come forward with good cause, the burden then shifts to the defendant to show substantial prejudice to it in allowing the case to proceed; if the defendant does show substantial prejudice, then the burden of production shifts to the plaintiff to establish that the proffered good cause outweighs the prejudice to the defendant. Fifth, the court, in weighing the evidence of good cause and substantial prejudice, should also consider (1) the actual amount of time involved in the dormancy of the case, (2) whether the plaintiff made any inquiries to his or her counsel about the status of the case during the period of dormancy, and (3) other relevant factors bearing on good cause and substantial prejudice. Sixth, if a motion opposing dismissal has been served, the court shall make written findings, and issue a written order which, if adverse to the plaintiff, shall be appealable to this Court as a final order; if the order is adverse to the defendant, an appeal on the matter may only be taken in conjunction with the final judgment order terminating the case from the docket. If no motion opposing dismissal has been served, the order need only state the ground for dismissal under Rule 41(b). Seventh, if the plaintiff does not prosecute an appeal of an adverse decision to this Court within the period of time provided by our rules and statutes, the plaintiff may proceed under Rule 41(b)'s three-term rule to seek reinstatement of the case by the circuit court--with the time running from the date the circuit court issued its adverse order. Eighth, should a plaintiff seek reinstatement under Rule 41(b), the burden of going forward with the evidence and the burden of persuasion shall be the same as if the plaintiff had responded to the court's initial notice, and a ruling on reinstatement shall be appealable as previously provided by our rule.

Robert E. Barrat, Martinsburg, for Appellant.

Page 343

[198 W.Va. 44] Kay Fuller, Walter M. Jones, III, Martin & Seibert, L.C., Martinsburg, for Appellees.

CLECKLEY, Justice:

The appellant herein and plaintiff below, Shirman Dimon, seeks reversal of an order striking his case from the docket of the Circuit Court of Jefferson County. The circuit court found there had been no activity in the plaintiff's case for over a year, and had the matter stricken from its docket. The plaintiff filed a motion to have the case reinstated to the circuit court's docket, which motion was denied. The plaintiff now seeks to reverse the order denying reinstatement of his case. ¹

I.

FACTUAL AND PROCEDURAL BACKGROUND

The underlying facts in this litigation are as follows: On March 11, 1991, the plaintiff was allegedly injured while driving his vehicle on the property of the appellees herein and the defendants below, Fahmi Mansy and Tamam Mansy. The record indicates that prior to the date of the accident, the defendants placed large wooden posts across a road adjacent to their property. The defendants allege they informed the plaintiff, prior to the accident, that the wooden posts were situated on the road. Nevertheless, the plaintiff plowed into the posts with his vehicle, and allegedly sustained injuries to his neck, back, and feet as a result of the accident. On May 19, 1992, the plaintiff filed a civil action seeking to recover damages for the injuries allegedly caused when he struck the wooden posts.

It appears from the record that from the date this case was filed in the circuit court until July 14, 1993, the only activity of record in the case was the filing of a notice to take the plaintiff's deposition by the defendants, and the filing of a discovery request by the defendants. On January 31, 1995, the circuit court entered an order pursuant to Rule 41(b) of the West Virginia Rules of Civil Procedure, ² striking the plaintiff's case from its docket upon finding that the last activity of record was July 14, 1993. While it was not a matter of record when this case was stricken, the plaintiff alleged he was seeing a doctor in conjunction with his case on the day the trial court struck the action from its docket. On February 14, 1995, the plaintiff filed a motion to reinstate his case and a notice of substitution of counsel. By order dated March 15, 1995, the circuit court denied the motion for reinstatement, but acknowledged the substitution of counsel for appeal purposes. The plaintiff then filed a motion for reconsideration, which was also denied on May 31, 1995. The plaintiff, thereafter, filed this appeal seeking to have this Court reverse the decision to strike his case from the docket of the circuit court.

II.

DISCUSSION

Today's case presents a challenge to the procedural requirements and the breadth of discretion enjoyed by the circuit court in making rulings pursuant to Rule 41(b) of the West Virginia Rules of Civil Procedure. The two narrow questions presented by this appeal are (a) whether the circuit court erred in failing to give pre-dismissal notice of its intent to dismiss a pending civil action with

Page 344

[198 W.Va. 45] prejudice, and (b) whether the circuit court abused its discretion in declining to reinstate this case to its docket. Our decision and response to these challenges implicate both the administration of justice and judicial economy. Accordingly, an understanding of the scope of a circuit court's authority as envisioned by Rule 41(b) is the first critical step in our consideration of this appeal.

It is well settled that a dismissal by a circuit court under Rule 41(b) for failure to prosecute operates as an adjudication on the merits and, unless reinstated by subsequent court order, such a dismissal is with prejudice. ³ The judicial authority to dismiss with prejudice a civil action for failure to prosecute cannot seriously be doubted. This power to invoke this sanction is necessary in order to prevent undue delays in the disposition of pending cases, and to avoid congestion in the calendar of the circuit court. 9 Wright & Miller, Federal Practice and Procedure § 2369 at 331 (1994); 3 Blackstone Commentaries 295-96 (1768). In the course of discharging their traditional responsibilities, circuit courts are vested with inherent and rule authority to protect their proceedings from the corrosion that emanates from procrastination, delay and inactivity. Thus, the determination whether the plaintiff has failed to move the case in a reasonable manner is a discretionary call for the circuit court. The power to resort to the dismissal of an action is in the interest of orderly administration of justice because the general control of the judicial business is essential to the trial court if it is to function. To this extent, Rule 41(b) is still good law in that granting authority to trial judges to control their dockets through dismissals is consistent, not debilitative, of sound judicial administration. It is equally clear that it is the plaintiff's obligation to move his or her case to trial, and where the plaintiff fails to do so in a reasonable manner, the case may be dismissed as a sanction for the unjustified delay. To be clear, we squarely hold that a plaintiff has a continuing duty to monitor a case from the filing until the final judgment, and where he or she fails to do so, the plaintiff acts at his or her own peril.

The extent of this discretionary authority, however, must be delimited with care, for there is always the unseemly danger of overreaching when the judiciary...