North v. Department of Mental Health

• Decision Date: 30 December 1986
• Docket Number: Docket No. 75837
• Citation: North v. Department of Mental Health, 427 Mich. 659, 397 N.W.2d 793 (Mich. 1986)
• Parties: Mildred NORTH, Administratrix of the Estate of Frederick North, Deceased, Plaintiff-Appellant, v. DEPARTMENT OF MENTAL HEALTH, Northville State Hospital, Defendant-Appellee. 427 Mich. 659, 397 N.W.2d 793
• Court: Michigan Supreme Court

Page 793

397 N.W.2d 793

Mildred NORTH, Administratrix of the Estate of Frederick North, Deceased, Plaintiff-Appellant, v.DEPARTMENT OF MENTAL HEALTH, Northville State HospitalDefendant-Appellee.

Docket No. 75837.

427 Mich. 659, 397 N.W.2d 793

Supreme Court of Michigan.

Argued June 4, 1986.

Decided Dec. 30, 1986.

Sanford Topper, Southfield, for plaintiff-appellant.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol.Gen., Lansing, George L. McCargar, Alan Hoffman, Asst. Attys.Gen., for defendant-appellee's brief and appendix on appeal.

BOYLE, Justice.

We are asked to determine in this case whether the trial court properly determined that the no-progress dismissal and the subsequent denial of plaintiff's motion to reinstate operated to dismiss plaintiff's case with prejudice, thus barring any refiling of the claim.We hold that it did not, and reverse the decision of the Court of Appeals which affirmed the trial court's judgment.

An administrative decision to dismiss a case for lack of progress does not operate as an adjudication on the merits.However, where a hearing and individualized consideration is given to the party against whom dismissal enters, whether in the form of a hearing on the court's own motion as by an order to show cause, appearance at a no-progress call, or on a motion for reinstatement of a no-progress dismissal, a dismissal under GCR 1963, 504.2 is with prejudice, Eliason Corp. v. Bureau of Safety & Regulation, 564 F.Supp. 1298, 1301(W.D.Mich, 1983);GCR 1963, 504.2. ¹

A determination that a dismissal is with prejudice will be upheld on appeal if the record made below indicates that the trial court has not abused its discretion.Given the vast array of circumstances presented to the trial courts, a rule governing the exercise of such discretion per se is unwise and unworkable.Thus, we disagree with the suggestion of the concurrence that before imposing a dismissal with prejudice a trial court must engage in a series of less drastic sanctions.

The trial court's front-line responsibility for the administration of justice mandates the potential use of sanctions for delay.As observed by the United States Supreme Court in Nat'l. Hockey League v. Metropolitan Nat'l. Hockey Club, Inc, 427 U.S. 639, 643, 96 S.Ct. 2778, 2781, 49 L.Ed.2d 747(1976),

"[T]he most severe in the spectrum of sanctions provided by statute or rule must be available to the district court in appropriate cases, not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent."

Our legal system is also committed to a countervailing policy favoring disposition litigation on the merits, seeHurt v. Cambridge, 21 Mich.App. 652, 176 N.W.2d 450(1970), which will frequently be found to be overriding.Thus, appellate courts have often warned "that dismissal with prejudice is ... to be applied only in extreme situations."Wright & Miller, Practice and Procedure, Sec. 2369, p 193.

Mindful of the fact that dismissal is a harsh remedy to be invoked cautiously, the trial court should evaluate the length, circumstances, and reasons for delay in light of the need for administrative efficiency and the policy favoring the decisions of cases on their merits, considering among other factors: 1) the degree of the plaintiff's personal responsibility for the delay, 2) the amount of prejudice to the defendant caused by the delay, 3) whether there exists a lengthy history of deliberate delay, and 4) whether the imposition of lesser sanctions would not better serve the interests of justice.Davis v. Williams, 588 F.2d 69, 70(CA 4, 1978).

Applying these considerations to the case at bar, we hold that a dismissal with prejudice is not warranted.Therefore, we reverse the decision of the Court of Appeals and remand the case for proceedings consistent with this opinion.

WILLIAMS, C.J., and RILEY and BRICKLEY, JJ., concur.

LEVIN, Justice (separate opinion ).

The plaintiff commenced an action in the Court of Claims for wrongful death which appeared on the no-progress calendar and was dismissed.After plaintiff's motion for reinstatement was denied, the plaintiff commenced this action in the Court of Claims for wrongful death.

The complaint in this action made the same allegations against the same defendant as were made in the complaint in the action dismissed for lack of progress.Asserting that the dismissal of the earlier action operated as an adjudication on the merits and barred commencement of this action, the defendant moved for accelerated judgment.The motion was granted.The Court of Appeals affirmed.¹We reverse and remand for trial.

I

The court rule provides that a no-progress calendar shall be prepared quarter annually "of all the actions on the civil calendar pending and undisposed of in which no steps or proceedings appear to have been taken within 1 year."²The action may not be dismissed by the trial court"for want of prosecution" if it is shown that the failure to take steps or proceedings was "not due to the plaintiff's fault or lack of reasonable diligence."³The trial court may reinstate an action that it has dismissed for no progress.⁴

The court rule provides for voluntary and involuntary dismissals.Unless otherwise stated or specified in the order, a voluntary dismissal is without prejudice.⁵In contrast, an involuntary dismissal operates as an adjudication on the merits unless the order for dismissal otherwise specifies.⁶

Although the rule in terms ⁷ would seem to provide that an action dismissed following its appearance on a no-progress calendar is deemed to have been dismissed with prejudice, a no-progress dismissal is without prejudice and, thus, does not operate as an adjudication on the merits or bar refiling of the action.⁸

The present court rule, effective March 1, 1985, provides expressly that a no-progress "dismissal is without prejudice unless the court specifies otherwise."⁹Messrs. Martin, Dean, and Webster state that the present court rule is "in accord with existing caselaw."¹⁰

II

The defendant asserts that although a dismissal of a cause that has appeared on a no-progress calendar is generally without prejudice, that such a dismissal should be deemed to be with prejudice where there has been "individual consideration"¹¹ by the judge whether to enter a no-progress dismissal.

Plaintiff's counsel appeared on January 11, 1983, when the no-progress calendar was called, and sought to explain the lack of progress.The judge responded that "[t]he last entry was November 26, 1979" and dismissed the case.The order of dismissal was silent whether the dismissal was with or without prejudice.

At the hearing on plaintiff's motion for reinstatement, plaintiff's lawyer said that a year before the case appeared on the no-progress calendar it had appeared on the no-progress calendar of another judge, no longer on the bench, and that the judge said he would set the matter for final pretrial and for trial.The lawyer added that he was not aware of a local court rule requiring the filing of a ready-for-trial praecipe.

Defendant's lawyer responded that at a pretrial, in mid-1979, plaintiff's lawyer had indicated an intention to seek discovery and that the defendant had, in November, 1979, over three years before the dismissal, sent the plaintiff interrogatories to which the plaintiff had not responded.Plaintiff's lawyer said that he had not been able to find the interrogatories in the office file, that he had not received a follow-up letter or other communication from the defendant seeking a response, nor had defendant filed a motion to compel a response to the interrogatories.Insofar as discovery was concerned, plaintiff's lawyer said he did not require discovery; there was, he said, no need for expert testimony, the cause of death being a fall from the roof of the Northville State Hospital, and that he intended to rely on the testimony of employees of the defendant without discovery.

The judge asked plaintiff's lawyer whether the rule, providing that a case shall appear on the no-progress calendar where there had been no step or proceeding within a one-year period, was applicable.The plaintiff's lawyer acknowledged, in effect, that the rule was applicable.The judge noted that nothing had been filed with the court by the plaintiff in over three years since a pretrial statement was filed in May, 1979.The judge then observed that he had already decided the matter in January, 1983, when the case was dismissed, and said that he didn't see good cause for reinstatement "due to the extreme length of time that has transpired and a rather clear No Progress Court Rule," and that the motion to reinstate would be denied.

The judge who granted accelerated judgment in the instant case on the ground that the no-progress dismissal barred commencement of this action said, where "the same judge who conducted the no-progress call heard and passed upon the motion for reinstatement, that accelerated judgment lies."He added that where a case is "dismissed for no progress" and the plaintiff's motion for reinstatement is opposed by the defendant"substantially we have the same situation as if the Defendant were to move for dismissal for lack of prosecution."

Putting aside for a moment the question whether the filing by the plaintiff of a motion for reinstatement may be treated as if the defendant had moved for dismissal for lack of prosecution and result in converting what was theretofore a dismissal without prejudice into a dismissal with prejudice, we are of the opinion that viewing the matter as did the circuit judge who dismissed the instant action--as if the defendant had filed a motion to dismiss the earlier action for lack of prosecution--this is not a case in which a dismissal with prejudice could have been appropriately ordered.

A

The court rule provides that "[f]or failure...