OF JUDGMENT: 08/13/2015
COUNTY CIRCUIT COURT, HON. JOHN HUEY EMFINGER TRIAL JUDGE.
ATTORNEYS FOR APPELLANT: MARC E. BRAND JAMES W. NOBLES JR.
JOHN DAVID SANFORD BRETT RAY KOEHN.
ATTORNEYS FOR APPELLEE: JOE S. DEATON III MICHAEL CHAD MOORE.
Pursuant to Rule 41(b) of the Mississippi Rules of Civil
Procedure, the Rankin County Circuit Court dismissed with
prejudice Russell Gaillard's complaint against Rea
Brothers' Auctions Inc. ("Rea Brothers") due to
Gaillard's failure to prosecute. Gaillard appeals the
dismissal and argues the circuit court abused its discretion
for the following reasons: (1) the record fails to reflect a
clear delay attributable to him; (2) even if he contributed
to a delay, the circuit court should have applied a lesser
sanction; and (3) the record fails to reflect any aggravating
Finding no abuse of discretion, we affirm the circuit
court's dismissal with prejudice of Gaillard's
complaint for failure to prosecute.
On March 16, 2009, Gaillard filed a complaint for damages
against Rea Brothers in the County Court of Rankin County.
Gaillard alleged that, while attending an auction on Rea
Brothers' premises on September 26, 2006, a vehicle
driven by a Rea Brothers' employee struck and injured
him. The trial docket indicates that, for the remainder of
2009, Rea Brothers alone filed documents relevant to
Gaillard's cause of action. In April 2009, Rea Brothers
filed its answer and affirmative defenses to Gaillard's
complaint and propounded discovery requests to Gaillard.
Then, on November 19, 2009, Rea Brothers filed a motion to
compel Gaillard's discovery responses. Attached to its
motion to compel, Rea Brothers included a copy of
correspondence between the parties' attorneys, which
indicated that Gaillard had so far failed to respond to Rea
Brothers' April 2009 discovery requests. On December 4,
2009, the county court entered an agreed order granting Rea
Brothers' motion to compel Gaillard's discovery
In January 2010, Gaillard responded to Rea Brothers'
discovery requests. He then propounded his own discovery
requests in February 2010 and noticed the deposition of Kenny
Rea in July 2010. Almost a year later, on August 16, 2011,
Gaillard filed a motion to amend his complaint and to
transfer the case to circuit court. The county court granted
Gaillard's motion on December 16, 2011.
On January 6, 2012, the circuit court entered an agreed
scheduling order. On February 1, 2012, Gaillard designated
his experts. He then filed a notice of deposition for his
treating physician, Dr. Stanton Ward, on June 5, 2012. On
July 19, 2012, Gaillard filed a response to Rea Brothers'
motion to compel him to submit to an independent medical
¶6. Pursuant to a January 2013 order by the circuit
court, the parties unsuccessfully participated in a mediation
conference on April 4, 2013. Rea Brothers filed a
supplemental designation of an expert witness on May 1, 2013.
Rea Brothers then filed a motion to strike and/or exclude the
testimony of Gaillard's expert, Dr. Ward, on August 2,
2013. On November 22, 2013, Gaillard filed a response to the
motion to strike and/or exclude Dr. Ward's opinions.
Over a year later, on January 16, 2015, Rea Brothers filed
its motion to dismiss Gaillard's complaint pursuant to
Rule 41(b) for failure to prosecute. On the same day,
Gaillard filed a motion to set the case for trial. Following
two hearings in August 2015, the circuit court entered orders
disposing of the parties' motions. By its August 11, 2015
order, the circuit court denied Rea Brothers' motion to
strike and/or exclude Dr. Ward's testimony. However, by a
subsequent order entered August 13, 2015, the circuit court
granted Rea Brothers' motion to dismiss Gaillard's
complaint for failure to prosecute. Following the circuit