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Regan v. South Central Regional Medical Center

Supreme Court of Mississippi

September 7, 2017

SHELIA REGAN
v.
SOUTH CENTRAL REGIONAL MEDICAL CENTER

          DATE OF JUDGMENT: 02/29/2016

         JONES COUNTY CIRCUIT COURT, HON. RICHARD W. McKENZIE, JUDGE

          TRIAL 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

          BEFORE WALLER, C.J., KING AND MAXWELL, JJ.

          MAXWELL, JUSTICE

         ¶1. 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.[1] A plaintiff's delay alone may warrant dismissal if the trial court finds lesser sanctions would not suffice.[2] 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 sufficient.

         ¶2. Finding no error, this Court affirms the trial court's dismissal without prejudice.

         Background Facts and Procedural History

         ¶3. Regan claims that in December 2003 she was injured during treatment at South Central.[3] 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.

         ¶4. 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[4] was before this Court. But the record shows no stay of proceedings in Regan III during her appeal of Regan I.

         ¶5. 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.[5] 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.[6]

         ¶6. Two days later, South Central filed a motion, under Mississippi Rule of Civil Procedure 41(b), for dismissal without prejudice.[7] 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.

         ¶7. 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.

         ¶8. 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 ...


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