OF JUDGMENT: 02/29/2016
COUNTY CIRCUIT COURT, HON. RICHARD W. McKENZIE, JUDGE
COURT ATTORNEYS: NORMAN WILLIAM PAULI, JR. RICHARD O. BURSON
PEELER GRAYSON LACEY, JR.
ATTORNEY FOR APPELLANT: NORMAN WILLIAM PAULI, JR.
ATTORNEYS FOR APPELLEE: RICHARD O. BURSON PEELER GRAYSON
LACEY, JR. SHIRLEY M. MOORE
WALLER, C.J., KING AND MAXWELL, JJ.
If a plaintiff files a civil lawsuit, then fails to pursue
it, the trial court or defendant may move to dismiss for
failure to prosecute. A plaintiff's delay alone may warrant
dismissal if the trial court finds lesser sanctions would not
suffice. Here, Shelia Regan filed her first
medical-malpractice claim against South Central Regional
Medical Center in 2005. Three lawsuits, two appeals, and more
than ten years later, there has still been no trial. Her
present lawsuit was reinstated in 2010. But since then, it
has languished in the circuit court for more than five years.
During this time, Regan has taken only one deposition. Based
on her inactivity, the trial judge granted South
Central's motion to dismiss her case without prejudice
for failure to prosecute. He found lesser sanctions were not
Finding no error, this Court affirms the trial court's
dismissal without prejudice.
Facts and Procedural History
Regan claims that in December 2003 she was injured during
treatment at South Central. On March 10, 2005, she filed her
first medical-negligence suit ("Reagan I") against
South Central. Because Regan failed to attach the required
expert's consultation certificate, Regan I was dismissed
without prejudice on November 27, 2007. The next day, Regan
filed her second lawsuit ("Reagan II") against
South Central. But on April 3, 2008, she voluntarily chose to
dismiss Regan II and filed a third suit ("Reagan
III") against South Central that same day.
Because South Central is a county hospital, Regan's
claims are subject to the Mississippi Tort Claims Act (MTCA).
See Miss. Code Ann. §§ 11-46-1 to
11-46-23. Citing the MTCA's one-year statute of
limitations, on May 22, 2008, South Central filed a motion to
dismiss Regan III, under Mississippi Rule of Civil Procedure
12(b)(6), arguing the statute of limitations had run and the
lawsuit was time-barred. The trial judge agreed. And on
September 10, 2008, he dismissed Regan III as untimely. Regan
contested the ruling and filed a motion, under Mississippi
Rule of Civil Procedure 59(e), to amend the Regan III
judgment. Her motion was timely, but the trial court did not
rule on it until November 29, 2010. During that time, her
expert-certification appeal in Regan I was before this
Court. But the record shows no stay of proceedings in Regan
III during her appeal of Regan I.
When the trial judge eventually considered the Rule 59(e)
motion in Regan III, he reversed his decision and found Regan
III had been timely filed. Though the judge reinstated her lawsuit
in Regan III on November 29, 2010, during the next five years
Regan did little to prosecute her claim. Fifteen months
passed before she filed two notices on March 2, 2012, to
depose Denise Felton and Timothy Dykstra. But she did not
take their depositions in 2012. Instead, she waited more than
two years before renoticing the same two depositions in April
and June 2014. Regan finally took Denise Felton's
deposition on June 19, 2014. After that, her case sat idle
for an additional sixteen months. Based on Regan's
inactivity, the Jones County Circuit Clerk entered a notice
of dismissal on October 21, 2015.
Two days later, South Central filed a motion, under
Mississippi Rule of Civil Procedure 41(b), for dismissal
without prejudice. South Central argued Regan had failed to
prosecute her case since June 2014. And South Central's
last contact with Regan's counsel had been July 15, 2014.
Three delays had also taken place since November 2010-each
longer than a year.
Regan responded to the clerk's notice by renoticing
Dykstra's deposition on November 30, 2015. But Regan did
not respond to South Central's motion to dismiss until
February 11, 2016. In her response, Regan suggested she had
been trying to prosecute her case, but outside circumstances
had kept her from doing so. Regan claimed Dykstra had moved
to Iowa and had refused to be deposed in Mississippi. And
South Central had not been forthcoming with potential
deposition dates. Regan's lawyer also insisted he had
numerous telephone conversations with South Central's
counsel between July 2014 and August 2015-with an eye on
scheduling a deposition-to no avail. Regan argued these
circumstances cut against dismissal.
The trial judge heard South Central's motion to dismiss
on February 12, 2016. Citing Regan's clear record of
delay, he entered an order granting South ...