OF JUDGMENT: 06/22/2015
COUNTY CIRCUIT COURT, HON. ROBERT B. HELFRICH TRIAL JUDGE
ATTORNEY FOR APPELLANT: ANNIE L. AMOS
ATTORNEYS FOR APPELLEES: RICHARD O. BURSON SHIRLEY M. MOORE
This medical malpractice case was filed in November 2012. In
April 2015, the clerk and the defendants moved to dismiss for
failure to prosecute. There had been no action in the case
since the defendants filed their answer two years earlier. No
response was filed to either motion to dismiss, and the
circuit court dismissed the case for failure to prosecute.
The circuit court did not abuse its discretion, so we affirm.
AND PROCEDURAL HISTORY
The complaint filed in this case alleges the following: On
November 23, 2010, Pataelain Paulk was a patient at Perry
County General Hospital. Dr. Roger Lott and/or some agent(s)
or employee(s) of the hospital "administered"
Coumadin, a prescription medicine, to Paulk in tablet form.
The tablet was still in a blister pack (i.e., packaging) when
it was "administered" to Paulk. Paulk ingested the
blister pack, which "lodged in her throat." Paulk
had to undergo surgery and experienced pain and suffering as
On November 21, 2012, Paulk filed a medical malpractice
complaint in the Perry County Circuit Court. The complaint
named Lott, the hospital, and the Doctors Clinic as
defendants. Paulk was represented by counsel. The defendants
were served on March 14, 2013, and filed an answer on April
There was no further action in the case until April 8, 2015,
when the circuit clerk filed a motion to dismiss the case for
failure to prosecute. On April 13, 2015, the defendants also
moved to dismiss for failure to prosecute. The
defendants' motion stated that they had served discovery
requests with their answer two years earlier but Paulk never
provided responses. Paulk did not respond to either motion.
The docket reflects four subsequent hearing notices, and
apparently a hearing was held, but it was not transcribed and
made a part of the record on appeal. On June 22, 2015, the
circuit court granted the defendants' motion to dismiss
for failure to prosecute pursuant to Mississippi Rule of
Civil Procedure 41(b).
On July 22, 2015, new counsel entered an appearance for Paulk
and filed a notice of appeal. On November 12, 2015, the
defendants filed a suggestion of death in this Court, which
stated that Paulk had died on or about February 3, 2014. On
November 30, 2015, counsel for Paulk filed a motion to
substitute Paulk's estate as the plaintiff/appellant,
which the Mississippi Supreme Court granted on January 7,
2016. The estate's opening brief states that
"[t]here is no allegation that [Paulk's] death was
related to the underlying cause of action."
Mississippi Rule of Civil Procedure 41(b) authorizes a court
to dismiss an action "[f]or failure of the plaintiff to
prosecute." "The power to dismiss for failure to
prosecute is granted not only by Rule 41(b), but is part of a
trial court's inherent authority and is necessary for the
orderly expedition of justice and the court's control of
its own docket." Cox v. Cox, 976 So.2d 869, 874
(¶13) (Miss. 2008) (quotation marks omitted).
"Because the law favors a trial of the issues on the
merits, a dismissal for lack of prosecution is employed
reluctantly." Holder v. Orange Grove Med.
Specialties P.A., 54 So.3d 192, 196 (¶16) (Miss.
2010) (quoting Miss. Dep't of Human Servs. v.
Guidry, 830 So.2d 628, 632 (¶13) (Miss. 2002)).
However, "this Court may uphold a Rule 41(b) dismissal
when 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." Id. at 197 (¶18). Moreover, our
standard of review is abuse-of-discretion; therefore, on
appeal from an order dismissing a case for failure to
prosecute, "we must affirm the trial judge ...